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Sessoms v. Runnels

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 8, 2008

TIO DINERO SESSOMS, PETITIONER,
v.
D. L. RUNNELS, WARDEN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS & RECOMMENDATIONS

I. Introduction and Summary

Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus. Petitioner challenges his 2001 conviction for murder (Cal. Penal Code § 187(a)), robbery (Cal. Penal Code § 211), and burglary (Cal. Penal Code § 459), with the special circumstance that petitioner was engaged in the commission or attempted commission of the crimes of robbery and burglary when the murder took place. Petitioner is serving a sentence of life in prison without the possibility of parole and additional determinate terms totaling fifteen years.

This action is proceeding on the amended petition filed on May 5, 2006. Petitioner raises the following claims: (1) his trial counsel rendered ineffective assistance by failing to investigate and present evidence that his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), were violated by police officers during his interrogation; and (2) his rights under the Fifth, Sixth, and Fourteenth Amendments were violated when interrogating police officers ignored his unequivocal request for counsel.

In analyzing this close case, the undersigned emphasizes its closeness under the correct AEDPA standard of review -- unreasonableness in application of Supreme Court authority. The state court decision must be "jaw- dropping wrong" (i.e., even more than clear error) -- that after looking at all possible angles, the federal court asks rhetorically, what could the state courts possibly have been thinking in that no legitimate argument supports the state court finding when laid aside established Supreme Court authority. The undersigned knows that a petitioner will only rarely prevail under this standard as the state courts are as able to interpret binding precedent as well as the undersigned.

In their well written presentations, petitioner's counsel and respondent's counsel demonstrate that there are arguably legitimate, different legal resolutions to the issues presented. One can validly argue that the Court of Appeal got it wrong, and it might well have, but the undersigned cannot find that it was AEDPA unreasonable. While the issues presented task the brain, the jaw has not dropped.

With that said, the undersigned recommends that the petition be denied.

II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The AEDPA "worked substantial changes to the law of habeas corpus,"

establishing more deferential standards of review to be used by a federal habeas court in assessing a state court's adjudication of a criminal defendant's claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997).

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000), the Supreme Court defined the operative review standard set forth in § 2254(d). Justice O'Connor's opinion for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy between "contrary to" clearly established law as enunciated by the Supreme Court, and an "unreasonable application of" that law. Id. at 1519. "Contrary to" clearly established law applies to two situations: (1) where the state court legal conclusion is opposite that of the Supreme Court on a point of law, or (2) if the state court case is materially indistinguishable from a Supreme Court case, i.e., on point factually, yet the legal result is opposite.

"Unreasonable application" of established law, on the other hand, applies to mixed questions of law and fact, that is, the application of law to fact where there are no factually on point Supreme Court cases which mandate the result for the precise factual scenario at issue. Williams (Terry), 529 U.S. at 407-08, 120 S.Ct. at 1520-1521 (2000). It is this prong of the AEDPA standard of review which directs deference to be paid to state court decisions. While the deference is not blindly automatic, "the most important point is that an unreasonable application of federal law is different from an incorrect application of law....[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams (Terry), 529 U.S. at 410-11, 120 S.Ct. at 1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19, 123 S.Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is contrary to, or an unreasonable application of, established Supreme Court authority. Id. An unreasonable error is one in excess of even a reviewing court's perception that "clear error" has occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 1175 (2003). Moreover, the established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 123 S.Ct. at 366.

However, where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In reviewing a state court's summary denial of a habeas petition, the court "looks through" the summary disposition to the last reasoned decision. Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir. 2000) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590 (1991)).

III. Background

The opinion of the California Court of Appeal contains a factual summary. After independently reviewing the record and supplementing it with bracketed material for context, the court finds this summary to be accurate and adopts it below.

Given the nature of the claims on appeal, a detailed recitation of the facts underlying defendant's convictions is not necessary. In short, defendant and two cohorts decided to rob Edward Sherriff. During the course of the robbery, one of the men choked Sherriff and then repeatedly stabbed him. In all, Sherriff was stabbed and slashed 24 times. The men stole cash, jewelry, and the victim's two vehicles.

Shortly thereafter, defendant left California for Oklahoma, where he ultimately turned himself in. [Petitioner was Mirandized by Oklahoma police after he turned himself into authorities on November 15, 1999; he refused to speak with the Oklahoma police at that time.] On November 19 or 20, 1999, [Sacramento] detectives interviewed defendant at a county jail in Oklahoma. The interview was videotaped. [fn] - Unbeknownst to petitioner, he was under video/audio surveillance from the time he entered the interrogation room. As the interview indicates, he was also separately audio recorded by the interrogating officers a short time into the actual introduction/questioning. The undersigned has personally viewed and listened to the pertinent parts of the video/audio tape.

Early in the interview, prior to being "Mirandized," the following conversation occurred:

"[DEFENDANT]: There wouldn't be any possible way that I could have a - a lawyer present while we do this?

"DET. WOODS: Well, uh, what I'll do is, um

"[DEFENDANT]: Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.*fn1 "DET. WOODS: What - what we're going to do is, um - I have one philosophy and that's, uh, be right up - front and be honest, the same way we were with [two other suspects], and not bullshit you or try to hide anything from you, okay?

"[DEFENDANT]: Okay, sir my dad was worried about, about like, I'm not going to say how some detectives do it but like a lot of officers end up switching your words afterwords [ sic ]. "DET. WOODS: No, we're not playing no switch games or nothing else. In fact, if - if you wouldn't mind, I'd like to -

"[DEFENDANT]: So there-"DET. WOODS: - record whatever conversation we have and that way there will be no-you know, it's recorded and there-there's proof that we ain't playing no switch games or nothing else. Now, would you mind if I pulled out a recorder?

"[DEFENDANT]: No."

Officers did not stop the interview. However, they did not ask defendant any questions. Detective Woods told defendant he was being charged with homicide, robbery, and burglary, and that his cohorts had waived their rights and given statements to the police. The detective also indicated that if defendant told them he would not speak to officers without an attorney present, they would not be able to talk and get defendant's version of the events.

Detective Woods then told defendant he was going to advise him of his rights and make sure he understood those rights and then defendant could decide whether he wanted to speak with the detectives. Defendant asked if it would be possible for him to call his father; since he was over 18 years old, Detective Woods said no but that they could make arrangements when they were finished talking.

Detective Woods next advised defendant of his rights under Miranda. After having been fully advised of those rights, defendant indicated he understood them. Detective Woods then asked whether defendant wanted to talk to them now, and defendant said, "Let's talk." Defendant gave a lengthy statement to the police, in which he admitted his involvement in the robbery and murder.

Prior to trial, defendant sought to have his statement to the detectives suppressed, claiming he had "clearly and unequivocally requested the assistance of an attorney." The court conducted an evidentiary hearing on the motion, heard argument, and watched the videotape of the interview. The court denied the motion, finding that defendant's initial statement was not an assertion of his rights but a question. The court noted that following defendant's question, the officers did not ask him any questions until after defendant was Mirandized and waived those rights. Accordingly, the court concluded that "there was no [ Miranda ] violation, [and] that the officers were not required to terminate the interrogation."

The jury found defendant guilty of first degree murder and found the special circumstances allegations true; they also found him guilty of first degree robbery and first degree burglary.

Prior to sentencing, defendant filed a motion for a new trial, alleging the trial court had erred in failing to suppress his statements. The court again reviewed arguments from both sides, spent hours reviewing the videotape, and reviewed the transcript of the tape. The court reiterated its finding that defendant's initial statement to the officers about a lawyer was a question, not a "direct unequivocal request to be provided with an attorney on the spot." The court did not find that a reasonable officer would have heard defendant say get me a lawyer. It noted that even if a reasonable officer would have heard that, it was not an unequivocal request for counsel. "Rather, [defendant] was just stating what his father's wishes were, not his own." Accordingly, the court denied the motion for a new trial on this ground.

The court sentenced defendant to life without possibility of parole.

The court also imposed a restitution fine of $10,000 (§ 1202.4, subd. (b)) and suspended an additional restitution fine in the same amount pending successful completion of parole (§ 1202.45). (Exhibit 3 to Declaration of Eric Weaver No. 1 (hereinafter Opinion), filed on May 5, 2006.)

The record also reflects the following undisputed facts. After Detective Woods turned on the tape recorder at petitioner's interrogation, the following colloquy took place:

DET. WOODS: Oh. It's nine twenty -- twenty-six, and we're in a, uh -- a interview room at the Oklahoma County Sheriff's Office Detention Center in Oklahoma City with Tio and Pat (Keller) and Dick (Woods). Um, want to back up. This way there -- is a recording, and you know we can't play no switch games or nothing else. Uh, I want to back up to your question you asked about an attorney. Um, first, before you ask questions, uh, I'm going to tell you why we're here, just lay it out and be up - front. And then -- then I'm going to advise you of your rights. And then it's up -- for you to decide if you want the attorney or not.

T. SESSOMS: All right.

DET. WOODS: Um, we obviously you know that the -- the warrant is -- is charging you with homicide and robbery and burglary.

T. SESSOMS: Uh-huh.

DET. WOODS: And, um, all three of you are charged with the same thing. There's no difference, uh, in Adam's charges or Frederick's charges or -- and we're working on the other part of it. But there's no difference in anybody's charges. Um, I don't know how long you've known Frederick, how long you've known Adam, how long you've known Joseph or any -- anybody. Uh, but we do know what happened, and I'm not going to lie or buffalo or bullshit you. Uh, Frederick waived his rights, which surprised me, and laid it out from A to Z. Adam also waved [sic] his rights and laid it out from A to Z. And we believe, due to what Adam and Frederick both told us, that you yourself did not participate in the stabbing. And I have no reason not to believe that. Now, there's two sides to every story, or three sides or four sides. But the situation is you brought up attorney. We -- if you said you didn't want to make any statement without an attorney, we're not really going to be able to talk to you and get your version of it. Uh, most all attorneys -- in fact, all attorneys will -- will sometimes or usually advise you not to make a statement. But -- and -- and we don't need to have your statement to make this case because we've already got two and a half other complete statements. And we know what happened, and it's accurate with the evidence at the scene. So we know it's not being made up, what Adam and Fred said. Uh, we've got quite a bit of some of the property back except for currency.

SESSOMS: What's that?

DET. WOODS: Money. Uh, we still don't have a lot of the coins or the bills back, but we've got jewelry and jewelry boxes back, the Bible, and so forth. And you are a suspect in it, and we are -- you -- obviously, you were arrested in this and --T. SESSIONS: I turned myself in.

DET. WOODS: I know. Which -- which I think is good, okay? But, uh, what I want to do is, um -- I'm not trying to take any rights away from you or anything else. What I want to do, Tio, is advise you of your rights, make sure you understand them. Then you make the decision if you want to talk to us or not.

T. SESSOMS: Uh-huh. (Clerk's Transcript (CT) at 549-52.) The detectives asked petitioner how old he was, and petitioner responded that he was nineteen. (Id. at 552.) Petitioner asked, "Would it be a possible chance that I can call my dad?" (Id.) Detective Woods responded, "well, no, because . . . you've got to make your decision." (Id. at 553.). Woods told petitioner that he could not speak to his father until after they were "done talking to you," and that he had to make his own decision because he was "an adult." (Id.) Petitioner was then advised of his constitutional rights, including his rights to remain silent and to have the presence of an attorney during questioning. (Id. at 553-54.) The following colloquy then occurred:

DET. WOODS: Okay. Having these rights in mind, do you wish to talk to us now?

T. SESSOMS: Um --*fn2

DET. WOODS: That's solely up to you.

T. SESSOMS: Let's talk.

(Id. at 554.)

The record reflects that petitioner turned himself in to Oklahoma authorities with the knowledge and assistance of his father. (Declaration of David Hinds Jr. (Hinds declaration), filed on May 5, 2006, at 2.) Petitioner's father arranged for petitioner to surrender to Oklahoma police officer David Hinds. (Id. at 2.) Officer Hinds transported petitioner to the Langston Police Department. (Id.) At the police station, Police Chief Gregory Bufford read petitioner his Miranda rights. (Id.; Declaration of Gregory Bufford (Bufford declaration), filed on May 5, 2006, at 1.) Chief Bufford asked petitioner whether he wanted to "make a statement" and petitioner responded, "No." (Hinds declaration at 2; Bufford declaration at 2.) As a result of petitioner's invocation of his right to remain silent, he was not questioned by Oklahoma authorities. (Id.) Petitioner was subsequently transferred to Oklahoma City to await extradition to California. (Hinds declaration at 3.) A few days later, California police officers Woods and Keller arrived to question petitioner and extradite him to California. (Hinds declaration at 3; Bufford declaration at 2.) At that point, the interrogation described above took place.

Roseann Cerrito, a private investigator licensed in California who was retained by petitioner's trial counsel to investigate the charges against petitioner, told petitioner's trial counsel on at least three occasions that petitioner had invoked his Miranda rights when he was taken into custody in Oklahoma. (Declaration of Roseann Cerrito (Cerrito declaration), filed on May 5, 2005, at 2.) Trial counsel told Ms. Cerrito that "it did not matter that Mr. McEwan [sic] invoked his Miranda rights to the officers in Oklahoma because Mr. Sessoms had given his statement to Sacramento Police Officers." (Id.) Trial counsel did not ask Ms. Cerrito to contact Oklahoma police officers Hinds and Bufford, and Cerrito did not do so. (Id.) Petitioner also informed his trial counsel "a minimum of three times" that he had invoked his constitutional rights when he was questioned by Oklahoma police officers Bufford and Hinds. (Declaration of Tio Dinero Sessoms (Sessoms declaration), filed on May 5, 2005, at 2.) Petitioner's trial counsel declares that he has "no current recollection of being informed by Mr. Sessoms or Ms. Cerrito that Mr. Sessoms invoked his Miranda rights to the officers who took Mr. Sessoms into custody in Oklahoma." (Declaration of Howard McEwan (McEwan declaration), filed on May 5, 2006, at 2.) Counsel states that he did not call anyone in Oklahoma to inquire about these claims and did not have a tactical reason for not doing so. (Id.)

IV. Petitioner's Claims

A. Ineffective Assistance of Counsel

Petitioner's first claim is that his trial counsel rendered ineffective assistance by failing to investigate and present evidence that his constitutional rights were violated by Sacramento Detectives Woods and Keller during his interrogation. He argues that because of counsel's deficient investigation, he failed to discover that petitioner had invoked his Miranda rights when he was first questioned by Oklahoma Detectives Hinds and Bufford. Petitioner claims that if counsel had conducted a full investigation into the circumstances of the interrogation, he could have filed a successful suppression motion arguing that his questioning by Sacramento deputies Woods and Keller violated his rights pursuant to Michigan v. Mosley, 423 U.S. 96, 97-98 (1975). (Petitioner's Memorandum of Points and Authorities in Support of Amended Petition (P&A) at 18-26; Traverse at 4-5.)*fn3

Petitioner raised this claim for the first time in a petition for writ of habeas corpus filed in the Sacramento County Superior Court on April 16, 2004. (page 9 of Exhibit 6 to "Declaration of Eric Weaver No. 1," filed on May 5, 2006.) On May 20, 2004, the Superior Court denied the petition without specifically mentioning this claim. (Ex. 7 to "Declaration of Eric Weaver No. 1.") On May 27, 2004, petitioner wrote a letter to the California Superior Court, in which he reiterated his claim that his trial counsel rendered ineffective assistance when he failed to conduct sufficient investigation of his interrogation by Oklahoma police. (Ex. 8 to "Declaration of Eric Weaver No. 1.") The Superior Court treated this letter as a request for reconsideration and denied petitioner's claim of ineffective assistance of counsel, citing In re Dixon, 41 Cal.2d 756, 759 (1953). (Ex. 9 to "Declaration of Eric Weaver No. 1.") On May 27, 2004, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, in which he argued that his trial counsel rendered ineffective assistance by failing to discover that petitioner invoked his Miranda rights when questioned by Oklahoma authorities. (page 9 of Exhibit 3 to "Declaration of Eric Weaver No. 2," filed on May 5, 2006.) That petition was summarily denied. (Exhibit 4 to Declaration of Eric Weaver No. 2.) On September 20, 2004, petitioner filed another petition for a writ of habeas corpus, in which he raised the same claim. (Ex. 5 to Declaration of Eric Weaver No. 2.) That petition was denied with a citation to In re Waltreus, 62 Cal.2d 218 (1965). (Ex. 6 to Declaration of Eric Weaver No. 2.)

As set forth in the brief, the first claim, the Mosley ineffective assistance claim, was decided in a welter of post-direct review habeas petitions. Because the various courts either missed the issue or it was not presented clearly, the decisions include no rulings, procedural denials, reconsideration denials on the merits and silent denials. The undersigned will review the Mosley issue independently under the proper AEDPA standard.

1. Applicable Law

a. Ineffective Assistance of Counsel

The Sixth Amendment guarantees the effective assistance of counsel. To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). In assessing an ineffective assistance of counsel claim "[t]here is a strong presumption that counsel's performance falls within the 'wide range of professional assistance.'" Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (quoting Strickland, 466 U.S. at 689). There is in addition a strong presumption that counsel "exercised acceptable professional judgment in all significant decisions made." Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689). However, "'a single, serious error may support a claim of ineffective assistance of counsel' -- including counsel's failure to file a motion to suppress." Moore v. Czerniak, ___ F.3d ___, 2008 WL 2875453 (9th Cir. (Cal.)) at *8 (quoting Kimmelman, 477 U.S. at 383 (1986).

Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). In cases involving counsel's failure to file a suppression motion, the question of prejudice is governed by Arizona v. Fulminante, 499 U.S. 279, 308 (1991). Czerniak, 2008 WL 2875453 at *7. In order to establish prejudice, petitioner must demonstrate that a motion to suppress would have been meritorious and that counsel's failure to file such a motion fell below an objective standard of reasonableness. Id. at *8. The analysis must be conducted with an awareness that "a confession is like no other evidence," and that "a full confession may have a 'profound impact' on the jury." Fulminante, 499 U.S. at 296. This court must "exercise extreme caution" before determining that counsel's failure to file a motion to suppress petitioner's confession was non-prejudicial. Id.

In determining an ineffective assistance claim on an assertion that an attorney performed deficiently on potential legal issue in the trial court, the two prongs, for the most part, overlap. That is, to the extent that the outcome of the legal issue would clearly have been in favor of petitioner had it been raised, it is likely that the attorney had no reasonable tactical decision in not raising the issue. The court will thus tackle the prejudice issue, i.e., the legal issue in question, first.

b. Merits of a Motion to Supress Petitioner's Confession

"The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. at 444. To this end, custodial interrogation must be preceded by advice to the potential defendant that he has the right to consult with a lawyer, the right to remain silent and that anything stated can be used in evidence against him. Id. at 473-74. Miranda warnings are "'not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.'" Oregon v. Elstad, 470 U.S. at 305 (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)).

Once Miranda warnings have been given, if a suspect makes an unambiguous statement invoking his constitutional rights, "all questioning must cease." Smith v. Illinois, 469 U.S. 91, 98 (1984). SeealsoMiranda, 384 U.S. at 473-74; Michigan v. Mosley, 423 U.S. at 100. Any subsequent statements are relevant only to the question whether the accused waived the right he had previously invoked. Smith, 469 U.S. at 98. "Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together." Id.

As explained above, petitioner relies on Michigan v. Mosley in support of his claim of ineffective assistance of counsel. Mosley involved the following fact pattern:

Before his initial interrogation, Mosley was carefully advised that he was under no obligation to answer any questions and could remain silent if he wished. He orally acknowledged that he understood the Miranda warnings and then signed a printed notification-of-rights form. When Mosley stated that he did not want to discuss the robberies, Detective Cowie immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position. After an interval of more than two hours, Mosley was questioned by another police officer at another location about an unrelated holdup murder. He was given full and complete Miranda warnings at the outset of the second interrogation. He was thus reminded again that he could remain silent and could consult with a lawyer, and was carefully given a full and fair opportunity to exercise these options. 423 U.S. at 104-05. The issue raised in Mosley was whether "the conduct of the [second set of police interrogators] that led to Mosley's incriminating statement did in fact violate the Miranda 'guidelines,' so as to render the statement inadmissible in evidence against Mosley at his trial." Id. at 100. Resolution of that issue involved the interpretation of the following passage set forth in the Miranda decision:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.

384 U.S. at 473-474.

The Supreme Court rejected a per se proscription of any further interrogation once the person questioned has indicated a desire to remain silent, holding instead "that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored.'" Mosley, 423 U.S. at 104. As the Supreme Court explained, "[a] reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt "fully effective means . . . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored . . . ." Id. at 103-04 (quoting Miranda, 384 U.S. at 479). "The critical safeguard identified in the passage at issue is a person's "right to cut off questioning." Id. (quoting Miranda, 384 U.S. at 474.)

A reviewing court must look to all of the circumstances to determine if a person's right to remain silent has been violated. Mosely, 423 U.S. at 96. The court in Mosley considered the amount of time that had elapsed between the two interrogations, the provision of fresh Miranda warnings, the scope of the second interrogation, and the zealousness of officers in pursuing questioning after the suspect had asserted his right to remain silent. See Id., 423 U.S. 104-6; United States v. Hsu, 852 F.2d 407, 410 (9th Cir. 1988). However, "[a]t no time ... did the Court [in Mosley ] suggest that these factors were exhaustive, nor did it imply that a finding as to one of the enumerated factors--such as, for example, a finding that only a short period of time had elapsed--would forestall the more general inquiry into whether, in view of all relevant circumstances, the police 'scrupulously honored' the right to cut off questioning." Hsu, 852 F.2d at 410. In reaching the conclusion that Mosley's confession was valid, the Supreme Court specifically noted that there was no evidence the police "failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind." Mosley, 423 U.S. at 105-106. Indeed, the police did not "in any way [attempt] to persuade Mosley to reconsider his position." Id. at 104.*fn4

In Hsu, the suspect entered a Sears store and was arrested inside by Agents Kuehl and Valentine. 852 F.2d at 409.*fn5 The agents brought Hsu outside the store. (Id.) Valentine read Hsu his Miranda rights and he agreed to waive them. (Id.) After answering a few questions, Hsu asked if he could remain silent. (Id.) Agent Valentine said that he could and stopped the interview. (Id.) Another agent then placed Hsu in her car and drove him to the a house where a search was being conducted. After participating in the search, a different agent (Hill) approached the car where Hsu was waiting. (Id.) Hill did not know that Hsu had previously invoked his right to silence. (Id.) Hill advised Hsu of his Miranda rights, he waived them, and confessed. (Id.) At issue was whether "the interrogation by Agent Hill violated Hsu's fifth amendment right not to incriminate himself." (Id.)

The Ninth Circuit concluded that petitioner's right to remain silent was scrupulously honored because the agents immediately ceased questioning when Hsu expressed a desire to remain silent, changed location, and provided fresh Miranda warnings. The court appeared to particularly focus on whether the police used pressure on the suspect to extract information and whether a fresh set of Miranda warnings was given. (Id. at 410.) The court specifically noted that Hsu did not "contend that DEA agents harassed him, or even that they pressured him in any way to revoke his assertion of the right to remain silent." (Id.) On the contrary, the record demonstrated that Agent Hill "exerted no pressure upon Hsu whatsoever," but merely "read Hsu his rights a second time, and Hsu responded with a valid waiver." (Id. at 412.)

In United States v. Barone, 968 F.2d 1378 (1st Cir. 1992), the First Circuit concluded that a confession was obtained in violation of Mosley where the defendant resisted questioning, was held for over 24 hours, was interrogated four times before he began to discuss the crime, and was twice intimidated by suggestions that he "would be in substantial [physical] danger if he returned to Boston without cooperating." Id. at 1385. The First Circuit concluded that "the focus on danger, the failure to repeat warnings, the increasing length of incarceration, the officers' efforts to ingratiate themselves, and the number of encounters deliberately aimed at eliciting cooperation on the same crime are sufficient to support a finding that this was a case 'where the police failed to honor a decision of a person in custody to cut off questioning, ... by persisting in repeated efforts to wear down his resistance and make him change his mind.'" Id. at 1386 (quoting Mosley, 423 U.S. at 105-06).

2. Analysis

a. Would A Motion to Suppress Have Been Meritorious?

In this case, as described above, petitioner invoked his right to silence and declined to speak to Oklahoma deputies Hinds and Bufford when he turned himself in on November 15, 1999. Petitioner was then transported to the Oklahoma County jail in Oklahoma City. Five days later, he was interviewed by Sacramento deputies Woods and Keller. First of all, it was not wrong per se for the Sacramento detectives to attempt to interrogate petitioner. After all, petitioner had turned himself into authorities (implying a possible desire to cooperate), and it had been four days since any questioning had taken place. The Sacramento authorities did not "keep petitioner in custody;" there was no way petitioner was going to be released on murder charges pending extradition proceedings or a waiver thereof. However, the Sacramento detectives had to be careful about the way they commenced the interview lest it be found straight away that they were not sensitive to the fact that he had previously refused to speak, and if petitioner continued his desire not to speak, to "scrupulously honor" the continued desire to remain silent.

It is quite apparent that the detectives were taken back by petitioner's statement about an attorney right out of the box. More will be said about that in the following section. However, the Mosley implication was that petitioner did not desire to cut off questioning, he was simply asking about an attorney before the substantive questions were to commence. Petitioner followed that initial statement up with a statement about his Dad thinking that petitioner should ask for an attorney because of a perceived fear that the detectives would "switch words" if an attorney was not present. Again, petitioner is not asking to be left alone or to be silent -- he is making statements about being counseled during the questioning. The detectives marched right up to the line of coercive conduct under the circumstances by initially ignoring petitioner's attorney question, and then "counseling" petitioner that the other two suspects had given complete statements. Then the detectives told petitioner that if he wanted the police to hear his side of the story (of course, there was no benefit to petitioner from the police hearing his side of the story), he needed to tell them then. The police offered their opinion that an attorney would advise petitioner to make no statement; however, this advice cuts both ways in that this comment might well convince petitioner that if lawyers would not allow a statement, then maybe he should not make one.

However, the Sacramento detectives drew back from the line. They fairly quickly came back to petitioner's question about an attorney. They informed petitioner that he would be advised about his rights, "[a]nd then it's up-- for you to decide if you want an attorney or not." Petitioner was also told: "I'm not trying to take any rights away from you or anything else. What I want to do, Tio, is advise you of your rights, make sure you understand them. Then you make the decision if you want to talk to us or not." When after being advised of his Miranda rights and being asked if he wished to waive his Miranda rights before substantive questioning, he was advised: "That's solely up to you." And this re-advice of rights, according to Hsu, is the most important factor in finding the absence of a Mosley violation.

All in all, petitioner had every opportunity to persist in remaining silent, or getting a lawyer, but he chose to say, and rather quickly: "Let's talk." Here as in Mosley, a significant amount of time elapsed between the first and second interrogations. There is no evidence that petitioner suffered from harsh treatment while in custody. The Sacramento police officer's statements were not unduly coercive, and the preface to advice of rights did not last for a long time. Petitioner was not threatened with more years in prison if he did not talk; the officers did not relate that petitioner would be given any specific benefit if he gave his statement. Petitioner was not given the "parade of prison horribles" with the implicit representation that such might not occur if he gave a statement. Of course, the Sacramento detectives were desirous of getting a statement having traveled from California to Oklahoma. But it cannot be said from an AEDPA standpoint that the preface to questioning amounted to wearing down petitioner's initial steadfast resolve not to talk; as previously noted, petitioner did not once indicate that he desired to remain silent.

This is not to say that petitioner's arguments find no support in case law applying Supreme Court authority. It is to say that respondent's arguments find enough support in case authority that a district court would be hard pressed to say that a motion to suppress would surely have been granted.*fn6 And it appears that the cases which did find a Mosley problem described situations more severe than that presented here. See United States v. Olof, 527 F.2d 752, 753 (9th Cir. 1975) (suspect's right to cut off questioning was not scrupulously honored where police used psychological pressure to induce the suspect to confess, telling him "that prison was a 'dark place,' where they 'pumped air' to the prisoners"); Barone, 968 F.2d at 1385 n.10 ("the use of accurate information [when talking to the suspect] does not weigh in [the government's] favor if done for the purpose of pressuring the defendant to abandon his right to remain silence"); United States v. Schwensow, 151 F.3d 650, 659 (7th Cir. 1998) ("the constitutionality of a subsequent police interview depends not on its subject matter but rather on whether the police, in conducting the interview, sought to undermine the suspect's resolve to remain silent"). But cf. United States v. Pheaster, 544 F.2d 353, 366, 368 (9th Cir. 1976) (court concluded that defendant voluntarily waived his right to silence when assertions by the police consisted of "objective, undistorted presentation[s]," stressing the "key distinction between questioning the suspect and presenting the evidence available against him.").

The court therefore finds insufficient prejudice for petitioner's first claim -- the Mosley ineffective assistance of counsel claim. For all the reasons set forth above, after an independent review of the record, the undersigned does not find that the California courts were unreasonable in determining that counsel was not ineffective for not raising a Mosley issue on account of insufficient prejudice. There is no need to determine whether reasonable counsel would have made a Mosley suppression motion in any event.

B. Miranda Warnings/Request for Counsel

Petitioner's next claim is that California detectives Woods and Keller improperly Court of Appeal denied this claim, reasoning as follows:

Defendant contends the police obtained his confession only after disregarding his unequivocal request for an attorney. He thus asserts the confession is inadmissible and all counts must be reversed. (Edwards v. Arizona (1981) 451 U.S. 477, 485-487 [68 L.Ed.2d 378] (Edwards); Miranda, supra, 384 U.S. at p. 474.) In reviewing this claim, we defer to the trial court on questions of fact and decide the Miranda/Edwards issue de novo. (People v. Bradford (1997) 14 Cal.4th 1005, 1032-1033.) "Under the familiar standards of Miranda, ... a suspect may not be subjected to custodial interrogation unless he or she knowingly and intelligently has waived the right to remain silent, to the presence of an attorney, and to appointed counsel in the event the suspect is indigent. [Citations.]" (People v. Sims (1993) 5 Cal.4th 405, 440 (Sims ).) "Once having invoked these rights, the accused 'is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.' (Edwards [,supra,] 451 U.S. [at pp. 484-485].)" (Sims, supra, 5 Cal.4th at p. 440.)

For the Miranda/Edwards prohibitions against further questioning to apply, a suspect's invocation of the right to counsel must be clear and unequivocal. (Davis v. United States (1994) 512 U.S. 452, 460-462 [129 L.Ed.2d 362] (Davis).) The application of Edward's "'"rigid" prophylactic rule' " requires the court to determine whether the suspect "'actually invoked' " his right to counsel. (Id. at p. 458.) "To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry." (Id. at pp. 458-459.) "Invocation of the Miranda right to counsel 'requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.' [Citation .] But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, [it does] not require the cessation of questioning." (Davis, supra, 512 U.S. at p. 459.) "Rather, the suspect must unambiguously request counsel." (Ibid.) "'[A] statement either is such an assertion of the right to counsel or it is not.' [Citation.] Although a suspect need not 'speak with the discrimination of an Oxford don,' [citation], he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. [Citation.]" (Davis, supra, 512 U.S. at p. 459.)

In the present case, although defendant twice explicitly referred to an attorney, neither statement was an unequivocal or unambiguous request for counsel. On the first occasion, defendant asked, "There wouldn't be any possible way that I could have a ... lawyer present while we do this?" As the court found, this was a question, not an unambiguous request. Defendant's second reference to an attorney was "Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer."

We find defendant's first statement is legally indistinguishable from the equivocal remarks in Davis, "'Maybe I should talk to a lawyer'" (Davis, supra, 512 U.S. at p. 455), and in People v. Crittenden (1994) 9 Cal.4th 83, 123 ( Crittenden ), "'Did you say I could have a lawyer?'" These equivocal remarks in Davis and Crittenden were not requests for counsel triggering the Edwards rule. (Davis, supra, 512 U.S. at p. 462.) Similarly, "[i]n the present case, defendant did not unequivocally state that he wanted an attorney, but simply asked a question." (Crittenden, supra, 9 Cal.4th at p. 130.)

Nor was defendant's second reference to an attorney an unequivocal request for an attorney. At best, it was a statement of his father's advice to him. We cannot find such a statement to be "sufficiently clear[ ] that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Davis, supra, 512 U.S. at p. 459.)

However, even if these statements were somehow construed to be actual invocations of defendant's right to counsel such that defendant's Miranda rights were violated, under the particular circumstances of this case, any such violation did not taint the subsequent confession that was obtained in accordance with Miranda .

In Oregon v. Elstad (1985) 470 U.S. 298 [84 L.Ed.2d 222] (Elstad), the United States Supreme Court held that failure to give a young adult defendant his Miranda warnings prior to his confession to burglary did not taint that defendant's subsequent confession, given after officers read his Miranda rights and he agreed to speak with them. Although "Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm" (id. at p. 307), "[i]t is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." (Id. at p. 309.) This case is even more compelling than Elstad in that here, defendant did not make any incriminating statements until after having been advised of and waiving his Miranda rights. At the time defendant made his remarks about an attorney he had not been Mirandized. At that time, defendant had also not made any statements about the robbery and murder of Sherriff, and the officers had not asked any questions about the night of the crimes. Following defendant's two references to an attorney, the officers did not ask him any questions at all. Instead, they fully advised him of his Miranda rights. After being fully advised of his Miranda rights and indicating he understood those rights, Detective Woods asked if defendant wanted to talk to them and he replied, "Let's talk." Defendant makes no argument, and there is no evidence, that there was any defect in the advisement of rights or the waiver, or that it was not voluntary and informed. Accordingly, there was no Miranda violation.

Because defendant's incriminating statements were not the product of a Miranda violation, the trial court correctly declined to exclude them on that ground. (Opinion at 5-9.)

In support of his claim in this regard, petitioner argues that his choice of words was meant to convey his request for counsel "in a respectful fashion" and that the fact his invocation was in the form of a question should not be construed as "equivocation on his part." (P&A at 29.) Petitioner notes that his polite way of asking questions was apparent throughout the interview. (Id.) He explains that his remark about his father simply clarified why he wanted an attorney and was not meant to convey his father's wishes as separate from his own. (Id. at 30.) Petitioner also contends that after he made his request, the police improperly "badgered" him into waiving his right to counsel. (Id. at 29-30.)

1. Applicable Law

In Edwards v. Arizona, the United States Supreme Court held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation. 451 U.S. at 484-85. A suspect must "unambiguously request counsel," which means that he "must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis v. United States, 512 U.S. 452, 459 (1994). "[I]f a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." Edwards, 451 U.S. at 484-85. The Supreme Court has stated that Edwards establishes a "'rigid' prophylactic rule." Smith v. Illinois, 469 U.S. at 95 (citing Fare v. Michael C., 442 U.S. 707, 719 (1979)). This requirement is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Davis, 512 U.S. at 458 (quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990)).

The United States Supreme Court has recognized that "[o]n occasion, an accused's asserted request for counsel may be ambiguous or equivocal." Smith v. Illinois, 469 U.S. at 95. For instance, in Davis, defendant's statement, "Maybe I should talk to a lawyer" was insufficient to constitute an invocation of the right to counsel. Similarly, the Ninth Circuit Court of Appeals has concluded that utterances which include the words "might," "maybe," or "perhaps" should generally be deemed ambiguous. Robinson v. Borg, 918 F.2d 1387, 1393-94 (9th Cir. 1990) (citing cases). See also Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir. 2005) ("where a suspect's request for counsel is qualified with words such as 'maybe' or 'might,' we have concluded that the suspect did not unambiguously invoke his right to counsel"); Clark v. Murphy, 331 F.3d at 1066 (defendant's statement "I think I would like to talk to a lawyer" was ambiguous, and therefore the police were not required to cease questioning); Robtoy v. Kincheloe, 871 F.2d 1478, 1482 (9th Cir. 1989) ("maybe I should call my attorney" deemed an equivocal request for counsel). The Ninth Circuit has also found requests for counsel to be equivocal when the defendant asks the police whether they think he should get a lawyer. See e.g., United States v. Ogbuehi, 18 F.3d 807, 813 (9th Cir. 1994) (defendant's question, "Do I need a lawyer" or "Do you think I need a lawyer" does not "rise to the level of even an equivocal request for an attorney"). Questions that raise uncertainty about whether the suspect actually wants a lawyer are also equivocal assertions of the right to counsel. See e.g., United States v. Younger, 398 F.3d 1179, 1187 (9th Cir. 2005) (defendant's statement "[b]ut, excuse me, if I am right, I can have a lawyer present ... through all this, right?" does not constitute unambiguous invocation of right to counsel). Notwithstanding the above examples, the Ninth Circuit has recognized that "[o]ur own precedent is not much help since it is somewhat inconsistent on what constitutes an equivocal request for a lawyer." Clark v. Murphy, 331 F.3d at 1070. However, if a suspect "makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the police are not required to stop the interrogation. Davis, 512 U.S. at 459 (emphasis added).

Where an involuntary confession is improperly admitted into evidence at trial, a reviewing court must apply a harmless error analysis, assessing the error "in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt." Fulminante, 499 U.S. at 308. In the context of habeas review, the standard is whether the error had substantial and injurious effect or influence in determining the jury's verdict. SeeBrecht v. Abrahamson, 507 U.S. 619, 637 (1993); Beatty v. Stewart, 303 F.3d 975, 994 (9th Cir. 2002); Henry v. Kernan, 197 F.3d 1021, 1029 (9th Cir. 1999).

2. Discussion

Petitioner argues that he invoked his right to counsel at the beginning of the interview with Detectives Woods and Keller and that the admission of his subsequent statements against him at trial violated his rights under Miranda v. Arizona. (Am. Pet. at 5.) The resolution of this issue turns on whether petitioner's statements: "There wouldn't be any possible way that I could have a -- lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys . . . uh, give [get] me a lawyer," constitute an unequivocal request for counsel. The California courts concluded that petitioner's statements did not constitute an unequivocal request for counsel. The question before this court is whether the state courts' conclusion in this regard is an unreasonable application of clearly established United States Supreme Court authority and/or an unreasonable determination of the facts of this case.*fn7

Petitioner argues that his request for counsel is "strikingly similar" to the request made by the defendant in Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999). In that case, the Ninth Circuit concluded that, when considered together, a suspect's three questions: "(1) Can I get an attorney right now, man?; (2) You can have attorney right now?; and (3) Well, like right now you got one?" constituted an unambiguous request for counsel. Although phrased as questions, it was clear that the suspect in Alvarez wanted an attorney "right now." Similarly, in Smith v. Endell, 860 F.2d 1528 (9th Cir. 1988), the Ninth Circuit deemed "Can I talk to a lawyer?" a clear invocation of the right to counsel. Id. In Robinson, "I have to get me a good lawyer, man" and "Can I make a phone call?" were deemed a clear invocation of the right to counsel. 918 F.2d at 1389.

In the situation presented here, although close, the undersigned cannot find that the Court of Appeal was AEDPA unreasonable in its determination that no unequivocal request for counsel had been made. Petitioner's first statement was an oddly stated "negative possibility" question: "There wouldn't be any possible way....." If petitioner had asked affirmatively, "would it be possible....," petitioner's argument that a reasonable person would have understood such as a direct request for counsel would be on much stronger ground. It may be that the interrogating detective knew full well that he was now on tenuous grounds because he made no immediate attempt to answer the question. Perhaps, the detective was trying to buy time to figure out whether an unequivocal request had been made. However, the test here is not what the detective subjectively understood; it is an objective test which inquires whether a reasonable police questioner would have understood this negative possibility question as an unequivocal request for counsel. And in this AEDPA context, in order to rule for petitioner, the undersigned must find that no reasonable court would find that the request was equivocal.

Of course, petitioner's follow-up statement that his Dad had asked him to ask about an attorney adds to petitioner's case. But again, this is an odd way to ask for counsel oneself -- putting that request in words making it appear to be the request of an absent person. The police are not responsible for the unique way in which petitioner was seeking counsel. The undersigned is not being critical of petitioner; but if his way of directly asking for counsel is to approach the request in an obscure manner, the law will not recognize such as an unequivocal request. The Edwards claim cannot be sustained.

Conclusion

Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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