Elkins v. Secretary, DOC et al
Filing
19
OPINION AND ORDER denying 1 Petition for writ of habeas corpus. The Clerk shall enter judgment and close the case. A certificate of appealability is denied. Signed by Judge John E. Steele on 11/24/2020. (RKR)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
RICHARD CARL ELKINS,
Petitioner,
v.
Case No:
2:17-cv-286-FtM-29MRM
SECRETARY, DOC,
Respondent.
OPINION AND ORDER
Petitioner
Richard
Carl
Elkins
(petitioner
or
Elkins),
represented by counsel, filed a Petition for Writ of Habeas Corpus
By a Person in State Custody Under 28 USC § 2254. (Doc. #1,
Petition).
Elkins, a Florida prisoner, challenges his convictions
for the first-degree premeditated murder of Obed Flores-Fuentes
and a lesser included offense of battery, entered by the Twentieth
Judicial Circuit Court in and for Lee County in Case No. 07-CF015298.
state
(Doc. #1, p. 2; Doc. #9, p. 2.)
court’s
denial
of
a
motion
to
Elkins asserts that the
suppress
a
post-arrest
statement made to detectives at the sheriff’s office was contrary
to federal law and/or based upon an unreasonable determination of
certain facts.
(Doc. #1, pp. 11-14.)
Respondent filed a Response
(Doc. #9, Response) which included the state court record (Docs.
## 11-15), and
Elkins filed a Reply. (Doc. #18).
For the reasons
set forth below, the Petition for Writ of Habeas Corpus is denied.
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I.
Applicable Federal Habeas Corpus Principles
The statutory authority of federal courts to issue habeas
corpus relief for persons in state custody is set forth in 28
U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA).
The AEDPA requires a state prisoner
seeking federal habeas relief to first “exhaus[t] the remedies
available in the courts of the State.”
28 U.S.C. § 2254(b)(1)(A).
If the state courts do not adjudicate the prisoner's federal claim
“on the merits,” a de novo standard of review applies in the
federal habeas proceeding; if the state courts do adjudicate the
claim on the merits, then the AEDPA mandates a deferential, rather
than de novo, review.
Kernan v. Hinojosa, 136 S. Ct. 1603, 1604
(2016).
This deferential standard is set forth in § Section 2254(d),
which provides:
“An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings
unless the adjudication of the claim—”
(1) resulted in a decision that was contrary
to, or involved an unreasonable application
of, clearly established Federal law, as
determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
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28
U.S.C.
§
2254(d).
This
standard
intentionally difficult to satisfy.
is
both
mandatory
and
Sexton v. Beaudreaux, 585
U.S. ___, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S.
415, 419 (2014).
“Clearly established federal law” consists of the governing
legal principles in the decisions of the United States Supreme
Court when the state court issued its decision.
at 419.
White, 572 U.S.
Habeas relief is appropriate only if the state court
decision was “contrary to, or an unreasonable application of,”
that federal law. 28 U.S.C. § 2254(d)(1).
A decision is “contrary
to” clearly established federal law if the state court either: (1)
applied a rule that contradicts the governing law set forth by
Supreme Court case law; or (2) reached a different result from the
Supreme Court when faced with materially indistinguishable facts.
Mitchell v. Esparza, 540 U.S. 12, 16 (2003); Ward v. Hall, 592
F.3d 1144, 1155 (11th Cir. 2010).
A state court decision involves an “unreasonable application”
of the Supreme Court’s precedents if the state court correctly
identifies the governing legal principle, but applies it to the
facts of the petitioner’s case in an objectively unreasonable
manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.
Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court
either unreasonably extends a legal principle from [Supreme Court]
precedent
to
a
new
context
where
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it
should
not
apply
or
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unreasonably refuses to extend that principle to a new context
where
it
should
apply.”
Bottoson,
Williams, 529 U.S. at 406.)
234
F.3d
at
531
(quoting
“A state court’s determination that
a claim lacks merit precludes federal habeas relief so long as
fair-minded jurists could disagree on the correctness of the state
court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).
See also Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298,
1301 (11th Cir. 2019) (“To justify federal habeas relief, the state
court’s decision must be so lacking in justification that there
was
an
error
.
.
.
beyond
any
possibility
for
fairminded
disagreement.”)(internal quotation marks omitted).
When reviewing a claim under § 2254(d), any “determination of
a factual issue made by a State court shall be presumed to be
correct[,]” and the petitioner bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]
state-court
factual
determination
is
not
unreasonable
merely
because the federal habeas court would have reached a different
conclusion in the first instance.”) (quoting Wood v. Allen, 558
U.S. 290, 293 (2010)). See also Morrow v. Warden, 886 F.3d 1138,
1146 (11th Cir. 2018) (the court must presume that the State
court’s determination of a factual issue is correct, and petitioner
must rebut presumption by clear and convincing evidence).
For the deferential § 2254(d) standard to apply there must
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have been an “adjudication on the merits” in state court.
An
adjudication on the merits does not require there be an opinion
from the state court explaining the state court's reasoning.
Harrington v. Richter, 562 U.S. 86, 98 (2011).
“When a federal
claim has been presented to a state court and the state court has
denied relief, it may be presumed that the state court adjudicated
the claim on the merits in the absence of any indication or statelaw procedural principles to the contrary.”
99.
Richter, 562 U.S. at
“The presumption may be overcome when there is reason to
think some other explanation for the state court's decision is
more likely.” Richter, 562 U.S. at 99–100. This presumption applies
whether the state court fails to discuss the claims or discusses
some claims but not others. Johnson v. Williams, 568 U.S. 289,
293, 298-301 (2013).
While such a decision is an “adjudication on the merits,” the
federal habeas court must still determine the state court's reasons
for its decision in order to apply the deferential standard.
When
the relevant state-court decision on the merits is not accompanied
by its reasons,
the federal court should “look through” the
unexplained decision to the last related
state-court decision that does provide a
relevant rationale. It should then presume
that the unexplained decision adopted the same
reasoning. But the State may rebut the
presumption by showing that the unexplained
affirmance relied or most likely did rely on
different grounds than the lower state court's
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decision, such as alternative grounds for
affirmance that were briefed or argued to the
state supreme court or obvious in the record
it reviewed.
Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
The federal
court “looks through” the silent state court decision “for a
specific and narrow purpose—to identify the grounds for the higher
court's decision, as AEDPA directs us to do.”
Id. 138 S. Ct. at
1196.
II.
Timeliness, Exhaustion, and Evidentiary Hearing
Respondent concedes that the Petition is timely and that the
claim for relief was properly exhausted.
Doc. #18, p. 1.)
(Doc. #9, pp. 8, 11;
Petitioner does not request an evidentiary
hearing, and the Court finds the facts are well-developed in the
record, so an evidentiary hearing is not otherwise warranted.
Schriro
v.
Landrigan,
550
U.S.
465,
474
(2007);28
U.S.C.
§
2254(e)(2).
III. Factual and Procedural Overview
On June 15, 2007, a grand jury in Lee County, Florida indicted
Elkins for the February 28, 2007, death of Obed Flores-Fuentes
(Flores-Fuentes).
Elkins was indicted for premeditated murder
while engaged in an attempt to perpetrate a sexual battery by
striking Flores-Fuentes in the head and neck with a shovel or other
blunt object (Count I), and for committing a sexual battery upon
Flores-Fuentes without his consent by force and in the process of
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using or threatening use of a deadly weapon or actual physical
force likely to cause injury (Count II).
(Doc. #11-1, Exh. 1,
Indictment.)
On
August
19,
2010,
Elkins
filed
a
Motion
to
Statement (Doc. #11-1, Exh. 2) in the trial court.
Suppress
The motion
sought to suppress all written and oral statements obtained from
petitioner by the police or other State agents on the grounds that
Elkins was arrested without probable cause, the statements were
not freely and voluntarily given, and his Miranda 1 rights waiver
was not free and voluntary.
On October 7, 2010, an evidentiary hearing on the motion was
held before the Honorable Margaret Steinbeck, Circuit Court Judge.
(Doc.
#2-1,
Exh.
1.)
Defense
counsel
clarified
that
the
suppression motion challenged two custodial statements made by
Elkins:
(1) a statement made in a police car while Elkins was
being transported to the Sheriff’s office; and (2) a statement
made to detectives during interrogation at the Lee County Sheriff’s
office.
(Doc. #2-1, Exh. 1, p. 24.) 2
As discussed in more detail
below, the motion to suppress was denied in material respects.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
2
Where available, the citations to individual page numbers
refer to the original page numbers on the exhibits and transcripts.
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The case proceeded to jury trial on October 25 through 28,
2010.
(Doc. #11-1, Exh. 5.)
On October 28, 2010, a jury returned
guilty verdicts of first degree murder as to Count I and the
lesser-included offense of battery as to Count II.
Exh. 6.)
(Doc. #14-1,
Elkins was sentenced to life imprisonment on the murder
conviction and time-served on the battery conviction.
(Doc. #14-
1, Exh. 7.)
On November 8, 2010, Elkins filed a timely direct appeal.
Through appointed counsel, Elkin raised three issues on direct
appeal.
Appellate
counsel
summarized
the
relevant
claim
as
follows:
ISSUE I
The trial court committed reversible error by
denying the appellant's motions to suppress
his confessions. The appellant's warrantless
arrest in the curtilage of the residence or
screened lanai of the house was unlawful, and
the resulting confessions should be suppressed
as fruits of his unlawful arrest. Moreover,
the
defendant
was
too
intoxicated
to
understand the warning and waive his rights.
(Doc. #14-1, Exh. 8, p. 352.)
(Doc. #15-1, Exh. 9.)
The State filed an Answer Brief
The Second District Court of Appeal per
curiam affirmed the convictions and sentences.
Elkins v. State,
88 So. 3d 941 (Fla. 2d DCA 2012). 3
3
Although not relevant to the § 2254 petition before the
Court, Elkins filed a post-conviction motion under Florida Rule of
Criminal Procedure 3.850, raising three grounds of ineffectiveness
of counsel. (Doc. #15-1, Exh. 11.) The State filed a Response,
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IV.
Section 2254 Issues and Analysis
A. State Court Order on Motion to Suppress
On October 18, 2010, after an evidentiary hearing, the state
trial court issued its written Order Denying (In Part) Motion to
Suppress. (Doc. #2-4, Exh. 4.)
The state court made the following
findings of fact:
At approximately 7 a.m. on February 28,
2007, Detective Ryan of the Lee County
Sherriff’s Office (LCSO) arrived at a crime
scene behind a shopping center near the
intersection of Bonita Beach Road and Highway
41 in Lee County. Earlier that morning, LCSO
had received a “911” call from a worker who
reported the discovery of a body in that
location. Detective Ryan was assigned as the
lead detective to investigate.
He observed
the nude and battered body of the decedent, a
Hispanic male, later identified as Obed
Flores.
Detective Ryan also observed blood
spatter on the walls of the shopping center.
Within hours, Detective Ryan learned that
an individual named Christopher Maner had
called the Sheriff’s office to report that he
had information about the case, Detective Ryan
met with Mr. Maner at Mr. Maner’s residence
and took a statement from him.
In that statement, Mr. Maner related that
he and his friend, Richard Elkins (the
Defendant), had been at a bar in the shopping
center the night of February 27-28, 2007,
drinking and playing pool.
Mr. Maner said
that at one point in the evening he and the
and Elkins filed a Reply. (Id., Exhs. 12, 13.) On July 31, 2015,
an Order Denying Defendant’s 3.850 Motion (Doc. #15-1, Exh. 14)
was issued by the State Circuit Court.
On April 1, 2016, the
Second District Court of Appeals per curiam affirmed the decision.
Elkins v. State, 209 So. 3d 578 (Fla. 2d DCA 2016). The Mandate
issued on July 20, 2016. (Doc. #15-1, Exh. 15.)
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Defendant went outside, behind the bar, to
smoke marijuana.
Mr. Maner said they were
approached outside by an unknown Hispanic male
and they offered to smoke with him. At some
point, the Defendant and the unknown Hispanic
male had a physical altercation and the
Defendant
knocked
the
Hispanic
male
unconscious. Mr. Maner and the Defendant went
back into the bar and paid their tab. As they
were leaving, the Defendant reportedly told
Mr. Maner that he was going to “finish [the
Hispanic male] off.” According to Mr. Maner,
they exited out the back door. The Defendant
got a shovel and beat the Hispanic male with
it.
Mr. Maner and the Defendant then
reportedly left the shopping center on foot.
Mr. Maner told Detective Ryan that the
Defendant discarded the shovel on the south
side of Bonita Beach Road, hiding it in
shrubs.
The Defendant and Mr. Maner walked
to a friend’s house nearby, where they both
went to sleep. Mr. Maner woke up and walked
home, leaving the Defendant there sleeping.
Mr. Maner led Detective Ryan to the
location where he claimed the shovel was
discarded, and Detective Ryan recovered a
shovel. The shovel appeared consistent with
the injuries Detective Ryan observed on the
body of Mr. Flores.
Mr. Maner then took Detective Ryan to the
friend’s house (which was a short walking
distance from the shopping center) where he
said he had left the Defendant sleeping
earlier
that
morning.
Additional
law
enforcement units were called to the scene.
Sometime before noon, the Defendant was
arrested at the friend’s house.
At the time of the arrest, the Defendant
was
discovered
on
a
screened
lanai
(approximately 10 feet wide by 15 feet long)
at the back side of the house, in the company
of an unknown female. The officers, some in
plain clothes and some in uniform, walked
around to the back side of the house and
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clearly observed the Defendant on the lanai.
The Defendant did not resist in any way and
was arrested (handcuffed and placed in the
back of Detective Craven’s patrol car for
transport) without incident.
Detective [Craven] and an LCSO trainee
transported the Defendant from the residence
where
he
was
arrested
to
the
LCSO
headquarters.
The
Defendant
was
not
interviewed before being placed in the patrol
car and he was not advised of his Miranda
rights at that time. The conversations in the
patrol vehicle during the transport of the
Defendant to the LCSO headquarters were
recorded on an audio recording. A copy of the
recording was introduced as part of State’s
Exhibit 1.
During
the
transport
to
the
LCSO
headquarters, in response to an inquiry as to
whether he was “all right back there,” the
Defendant asked when he could give his
confession.
Without waiting for an answer,
the Defendant then blurted out his version of
the confrontation with Mr. Flores.
In
response, after asking the Defendant his name,
Detective Craven told the Defendant that they
were taking the Defendant to the Major Crimes
Unit at the LCSO, where the Defendant would
talk to “the detective.”
Other than asking
how old the Defendant was, and whether he
needed air or was otherwise okay, there was
little
or
no
conversation
between
the
Defendant and the officers during the rest of
the trip.
At approximately 2:25 p.m., February
2007, the Defendant was interviewed
Detective Ryan and Detective Mike Carr at
LCSO headquarters.
That interview
recorded
and
the
audio
recording
introduced as part of State’s Exhibit
There were no threats or promises made by
Detectives to the Defendant before
recording and no statements made after
recording.
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28,
by
the
was
was
1.
the
the
the
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At
the
beginning
of
the
recorded
interview, Detective Ryan read the Defendant
his rights pursuant to Miranda and the
Defendant acknowledged his understanding and
stated that he wished to talk to the
Detectives.
As stated above, the entire
recorded conversation was introduced into
evidence and there is no need to summarize or
describe it here.
(Doc. #2-4, Exh. 4, pp. 1-3.)
These factual determinations are
amply supported by the record at the suppression hearing.
In any
event, neither party challenges these factual findings by the state
court judge.
In relevant part, the state court concluded that: (1) Elkin
knowingly and intelligently waived his Fifth Amendment privilege
and his right to counsel, and chose to speak with the officers at
the Sheriff’s office; (2) probable cause to arrest Elkin was
established,
Maner’s
despite
statements
the
prior
possible
to
his
self-serving
own
arrest;
nature
(3)
for
of
Mr.
various
reasons, Elkins’ warrantless arrest did not violate Payton v. New
York, 445 U.S. 573 (1980); (4) Elkin had no reasonable expectation
of privacy in the back of the patrol car during transport to the
LCSO headquarters, Elkins’ initial statements in the vehicle were
spontaneous, and therefore not a Miranda violation, but the other
statements made during the ride were technically in response to
questions, and therefore those statements were suppressed because
no Miranda warnings had been given; and (5) the State had carried
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its burden of showing that Elkins’ statements were freely and
voluntarily given. (Doc. #2-4, Exh. 4, pp. 4-5.)
B. Petitioner’s § 2254 Claims
In the § 2254 proceeding, petitioner challenges only the state
court’s determination that the statement given at the Sheriff’s
office was admissible.
As to this statement, petitioner asserts
that the State Court’s determinations that Elkins had waived his
Miranda
rights
and
that
the
statement
was
given
freely
and
voluntarily were contrary to and an unreasonable application of
clearly established federal law, and were based on an unreasonable
determination of certain facts.
(Doc. #1, pp. 1-14.) 4
Florida’s Second District Court of Appeal affirmed the trial
court’s denial of the motion to suppress without written opinion.
(Doc. #15-1, Exh. 10).
Therefore, as discussed earlier, a federal
habeas court “looks through” the Florida appellate court’s per
curiam order, presumes the unexplained appellate order adopted the
reasoning
of
the
trial
court’s
post-conviction
evaluates that postconviction decision.
1192.
decision,
and
Wilson, 138 S. Ct. at
Accordingly, the focus of the § 2254 petition is the Order
entered by Judge Steinbeck denying the motion to suppress.
4
The § 2254 petition does not challenge the existence of
probable cause to arrest petitioner.
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(1) Petitioner’s Waiver of Miranda Rights
Petitioner
argues
that
the
state
trial
judge
failed
to
properly apply well-established federal law to determine whether
he had waived his Miranda rights, relying largely on Moran v.
Burbine, 475 U.S. 412 (1986).
Petitioner asserts that the waiver
of Miranda rights must be both voluntary and “made with a full
awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.”
quoting Burbine, at 421.)
(Doc. #1, p. 12,
Elkins argues that the state court
ignored the second prong and added a reliability analysis instead,
and therefore the decision was contrary to clearly established
federal law within the meaning of § 2254(d)(1).
(Id., pp. 13-14.)
The Supreme Court discussed the waiver of Miranda rights at
some length in Berghuis v. Thompkins:
Even absent the accused's invocation of the
right
to
remain
silent,
the
accused's
statement during a custodial interrogation is
inadmissible at trial unless the prosecution
can establish that the accused “in fact
knowingly and voluntarily waived Miranda
rights” when making the statement. Butler, 441
U.S. at 373, 99 S. Ct. 1755. The waiver inquiry
“has two distinct dimensions”: waiver must be
“voluntary in the sense that it was the
product of a free and deliberate choice rather
than intimidation, coercion, or deception,”
and “made with a full awareness of both the
nature of the right being abandoned and the
consequences of the decision to abandon it.”
Burbine, supra at 421, 106 S. Ct. 1135.
. . . .
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The course of decisions since Miranda,
informed by the application of Miranda
warnings
in
the
whole
course
of
law
enforcement, demonstrates that waivers can be
established even absent formal or express
statements of waiver that would be expected
in, say, a judicial hearing to determine if a
guilty plea has been properly entered. Cf.
Fed. R. Crim. P. 11. The main purpose of
Miranda is to ensure that an accused is
advised of and understands the right to remain
silent and the right to counsel. See Davis,
supra at 460, 114 S. Ct. 2350; Burbine, supra
at 427, 106 S. Ct. 1135. Thus, “[i]f anything,
our subsequent cases have reduced the impact
of the Miranda rule on legitimate law
enforcement while reaffirming the decision's
core ruling that unwarned statements may not
be used as evidence in the prosecution's case
in chief.” Dickerson v. United States, 530
U.S. 428, 443–444, 120 S. Ct. 2326, 147
L.Ed.2d 405 (2000).
One of the first cases to decide the meaning
and import of Miranda with respect to the
question of waiver was North Carolina v.
Butler. The Butler Court, after discussing
some of the problems created by the language
in Miranda, established certain important
propositions. Butler interpreted the Miranda
language concerning the “heavy burden” to show
waiver, 384 U.S. at 475, 86 S. Ct. 1602, in
accord with usual principles of determining
waiver, which can include waiver implied from
all the circumstances. See Butler, supra at
373, 376, 99 S. Ct. 1755. And in a later case,
the Court stated that this “heavy burden” is
not more than the burden to establish waiver
by a preponderance of the evidence. Colorado
v. Connelly, 479 U.S. 157, 168, 107 S. Ct.
515, 93 L. Ed. 2d 473 (1986).
The prosecution therefore does not need to
show that a waiver of Miranda rights was
express. An “implicit waiver” of the “right to
remain silent” is sufficient to admit a
suspect's statement into evidence. Butler,
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supra at 376, 99 S. Ct. 1755. Butler made clear
that a waiver of Miranda rights may be implied
through “the defendant's silence, coupled with
an understanding of his rights and a course of
conduct indicating waiver.” 441 U.S. at 373,
99 S. Ct. 1755. The Court in Butler therefore
“retreated” from the “language and tenor of
the Miranda opinion,” which “suggested that
the Court would require that a waiver . . . be
‘specifically made.’” Connecticut v. Barrett,
479 U.S. 523, 531–532, 107 S. Ct. 828, 93 L.
Ed. 2d 920 (1987) (Brennan, J., concurring in
judgment).
If the State establishes that a Miranda
warning was given and the accused made an
uncoerced statement, this showing, standing
alone, is insufficient to demonstrate “a valid
waiver” of Miranda rights. Miranda, supra at
475, 86 S. Ct. 1602. The prosecution must make
the additional showing that the accused
understood these rights. See Colorado v.
Spring, 479 U.S. 564, 573–575, 107 S. Ct. 851,
93 L. Ed. 2d 954 (1987); Barrett, supra at
530, 107 S. Ct. 828; Burbine, 475 U.S. at 421–
422, 106 S. Ct. 1135. Cf. Tague v. Louisiana,
444 U.S. 469, 469, 471, 100 S. Ct. 652, 62 L.
Ed. 2d 622 (1980) (per curiam) (no evidence
that accused understood his Miranda rights);
Carnley v. Cochran, 369 U.S. 506, 516, 82 S.
Ct. 884, 8 L. Ed. 2d 70 (1962) (government
could not show that accused “understandingly”
waived his right to counsel in light of
“silent record”). Where the prosecution shows
that a Miranda warning was given and that it
was understood by the accused, an accused's
uncoerced statement establishes an implied
waiver of the right to remain silent.
Although Miranda imposes on the police a rule
that is both formalistic and practical when it
prevents them from interrogating suspects
without first providing them with a Miranda
warning, see Burbine, 475 U.S. at 427, 106 S.
Ct. 1135, it does not impose a formalistic
waiver procedure that a suspect must follow to
relinquish
those
rights.
As
a
general
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proposition, the law can presume that an
individual who, with a full understanding of
his or her rights, acts in a manner
inconsistent with their exercise has made a
deliberate choice to relinquish the protection
those rights afford. See, e.g., Butler, supra
at 372–376, 99 S. Ct. 1755; Connelly, supra at
169–170, 107 S. Ct. 515 (“There is obviously
no reason to require more in the way of a
‘voluntariness' inquiry in the Miranda waiver
context than in the [due process] confession
context”). The Court's cases have recognized
that a waiver of Miranda rights need only meet
the standard of Johnson v. Zerbst, 304 U.S.
458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461
(1938). See Butler, supra at 374–375, 99 S.
Ct. 1755; Miranda, supra at 475–476, 86 S. Ct.
1602 (applying Zerbst standard of intentional
relinquishment of a known right). As Butler
recognized, 441 U.S. at 375–376, 99 S. Ct.
1755, Miranda rights can therefore be waived
through means less formal than a typical
waiver on the record in a courtroom, cf. Fed.
R.
Crim.
P.
11,
given
the
practical
constraints and necessities of interrogation
and the fact that Miranda's main protection
lies in advising defendants of their rights,
see Davis, 512 U.S. at 460, 114 S. Ct. 2350;
Burbine, 475 U.S. at 427, 106 S. Ct. 1135.
Berghuis v. Thompkins, 560 U.S. 370, 382–85 (2010).
Applying
these principles, the Supreme Court found there was a valid waiver
of Miranda rights.
There is no basis in this case to conclude
that he did not understand his rights; and on
these facts it follows that he chose not to
invoke or rely on those rights when he did
speak. First, there is no contention that
Thompkins did not understand his rights; and
from this it follows that he knew what he gave
up when he spoke. See id., at 421, 106 S. Ct.
1135. There was more than enough evidence in
the
record
to
conclude
that
Thompkins
understood his Miranda rights.
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. . . .
Second,
Thompkins'
answer
to
Detective
Helgert's question about whether Thompkins
prayed to God for forgiveness for shooting the
victim is a “course of conduct indicating
waiver” of the right to remain silent. Butler,
supra at 373, 99 S. Ct. 1755. If Thompkins
wanted to remain silent, he could have said
nothing in response to Helgert's questions, or
he could have unambiguously invoked his
Miranda rights and ended the interrogation.
The fact that Thompkins made a statement about
three hours after receiving a Miranda warning
does not overcome the fact that he engaged in
a course of conduct indicating waiver. Police
are not required to rewarn suspects from time
to time. Thompkins' answer to Helgert's
question about praying to God for forgiveness
for shooting the victim was sufficient to show
a course of conduct indicating waiver. This is
confirmed by the fact that before then
Thompkins had given sporadic answers to
questions throughout the interrogation.
Third, there is no evidence that Thompkins'
statement was coerced. See Burbine, supra at
421, 106 S. Ct. 1135.
. . . .
In these circumstances, Thompkins knowingly
and voluntarily made a statement to police, so
he waived his right to remain silent.
Berghuis, 560 U.S. at 385–87.
Here, the state trial court found that Elkins “knowingly and
intelligently waived his privilege against self-incrimination and
the right to counsel, and chose to speak to the detectives at the
LCSO headquarters.”
(Doc. #2-4, p. 3.)
The state court further
found that petitioner’s statement was reliable and untainted by
the “prior un-warned statements in the patrol car during transport,
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leading questions by the Detectives at the LCSO headquarters,
[Elkin’s] mental health, or intoxication.”
(Id.)
The state court
was not persuaded by the testimony of Dr. Alan J. Waldman and other
evidence that Elkins’ statements were involuntary or unreliable
due to the “reported prior brain injury and drug use”. 5
(Id.)
The state court specifically found that Elkins’ statements were
free of coercion or deception.
As to the second prong, the state court did not add an
improper
reliability
factor,
but
noted
that
Dr.
Waldman’s
testimony did not support a finding that Elkins was not aware of
his rights and the consequences of abandoning them. 6
Elkins
answered questions in a lucid manner, even if he said several times
he forgot details.
any
physical
Dr. Waldman’s testimony was not supported by
evidence
or
statement
by
Elkins
that
he
was
intoxicated during the interview, and the decision was not contrary
to or based on unreasonable determination of the facts in light of
the evidence presented.
The state court considered the “totality
5
Dr. Waldman noted that the mild head injuries could cause
problems with some abstract reasoning but that he did not “think
that it was particularly apparent that he would have those problems
from the head injuries.” (Doc. #2-1, Exh. 1, pp. 64-65.)
6
Dr. Waldman expressed concern about whether Elkins could
knowingly and intelligently waive his Miranda rights, but did not
unequivocally opine that he could not. (Doc. #2-1, Exh. 1, pp.
68-69.) On cross-examination, Dr. Waldman also agreed that any
memory issues didn’t necessarily mean that Elkins couldn’t
understand questions, including a Miranda warning. (Id., pp. 7475.)
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Case 2:17-cv-00286-JES-MRM Document 19 Filed 11/24/20 Page 20 of 21 PageID 1827
of the circumstances” surrounding Elkin’s statements and found his
statements and Miranda waiver to be freely and voluntarily given.
The Court finds Elkins has not demonstrated that state
court's
adjudication
established
of
federal
this
law,
determination of the facts.
or
claim
based
was
contrary
upon
an
The Petition is denied.
to
clearly
unreasonable
28 U.S.C. §
2254(d).
V.
Certificate of Appealability
A prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his petition.
28 U.S.C. § 2253(c)(1).
Rather, a district court must first issue
a certificate of appealability (COA).
“A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial
of a constitutional right.”
28 U.S.C. § 2253(c)(2).
To make such
a showing, a petitioner must demonstrate that “reasonable jurists
would find the district court's assessment of the constitutional
claims debatable or wrong,”
Tennard v. Dretke, 542 U.S. 274, 282
(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or
that “the issues presented were adequate to deserve encouragement
to proceed further,”
Miller–El v. Cockrell, 537 U.S. 322, 335–36
(2003) (citations omitted).
Petitioner has not made the requisite
showing here and may not have a certificate of appealability on
either ground of his Petition.
Accordingly, it is hereby
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Case 2:17-cv-00286-JES-MRM Document 19 Filed 11/24/20 Page 21 of 21 PageID 1828
ORDERED:
1. Petitioner's Petition for Writ of Habeas Corpus By a Person
in State Custody Under 28 USC § 2254 (Doc. #1) is DENIED.
2. The Clerk shall enter judgment, terminate all deadlines
and motions, and close the case.
DONE and ORDERED at Fort Myers, Florida, this
of November 2020.
Copies:
Counsel of Record
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24th
day
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