Giancana v. Nooth
Filing
53
OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 40 is DENIED, and this case is DISMISSED, with prejudice. A certificate of appealability is granted as to the following issue only: Whether petitioner's Fifth and Fourteenth Amendment rights were violated when the trial court concluded he did not unequivocally or unambiguously invoke his right to counsel. See 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. Signed on 6/8/2012 by Judge Robert E. Jones. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
FRANCIS VITO GIANCANA,
3: 09-cv-00599-JO
Petitioner,
v.
OPINION AND ORDER
MARK NOOTH, Superintendent,
Snake River Correctional
Institution,
Respondent.
Noel Grefenson
Noel Grefenson, P.C.
1415 Liberty Street SE
Salem, Oregon 97302
Attorney for Petitioner
John R. Kroger
Attorney Genera l
Jacqueline Kamins
Assistant Attorney General
Department of Justice
1162 Court Street NE
Salem, Oregon 97301
Attorneys for Respondent
1 - OPINION AND ORDER
JONES,
District Judge.
Petitioner
28
U.S.C.
brings
2254
§
in
this
habeas
which
he
corpus
challenges
action
his
pursuant
convictions
sen t ence for unlawful sexual penetration and sexual abuse.
reasons set forth below,
Corp"Js
[40J
is denied,
to
and
For the
the Amended Petition for Writ of Habeas
and Judgment
is
entered dismissing this
action with prejudice.
BACKGROUND
October 10, 2001, the Clackamas County Grand Jury returned
O~
an indictment charging petitioner with three counts of Unlawful
Sexual
Penetration in the
First
Degree,
six counts of Unlawf ul
Sexual Penetration in the Second Degree, and ten counts of Sexual
Abuse
in the
First
Degree.
Respondent's
Exhibit
102.
A jury
convicted petitioner on all counts except one count of Unlawful
Sexual Penetration in the Second Degree and the sentencing court
imposed a sentence totaling 275 months.
Respondent's Exhibit 101.
Petitioner directly appealed his convictions, but the Oregon
Court of Appeals affirmed the trial court without written opinion,
and the Oregon Supreme Court denied review.
Or. App.
733,
118 P.3d 281
(2005)
rev.
State v. Giancana, 200
denied,
339 Or.
700,
127
P.3d 1203 (2005); Respondent's Exhibits 103-109.
Petitioner filed for post-conviction relief
court.
The
PCR trial
court
denied relief.
in state
Giancana v.
Malheur County Circuit Court Case No. 06-03-5022M.
2 - OPINION AND ORDER
("PCR")
Hill,
On appeal, the
Oregon Court of Appeals affirmed the
PCR court wi thout written
opinion, and the Oregon Supreme Court denied review.
Hill,
222 Or. App.
605,
195 P.3d 923
(2008),
Giancana v.
rev. denied, 345 Or.
460, 200 P.3d 146 (2008); Respondent's Exhibits 128-132.
On
June
1,
2009,
petitioner
filed
this
action.
In
his
Amended Petition for Writ of Habeas Corpus, he raises the following
ground for relief:
Ground One:
Petitioner suffered a violation of his right,
under the Fifth and Fourteenth Amendment to the United States
Constitution, to have counsel present during a custodial
interrogation
by
officers
of
the
Lake
Oswego
Police
Department.
As a result of these violations, officers
elicited statements from petitioner and seized evidence which
derived from the illegal interrogation which was introduced
against petitioner at trial.
Adjudication of petitioner's
motion to suppress which challenged this violation of his
federal constitutional rights resulted in [a] state court
adjudication which is contrary to and involves an unreasonable
application of controlling Supreme Court precedent.
See
Edwards v. Arizona, 451 US 477, 484-485, 101 S Ct 1880, 1885,
68 L Ed 2d 378 (1981), Minnick v. Ivlississippi, 498 US 146,
154, 111 S Ct 486, 112 L Ed 2d 489 (1990), Oregon v. Bradshaw,
462 US 1039, 1044, 103 S Ct 2830, 77 L Ed 2d 405 (1983), Davis
v. United States, 512 US 452, 459, 114 S Ct 2350, 129 L Ed 2d
362 (1994), Michigan v. Jackson, 475 US 625, 633, 106 S Ct
1404, 89 L Ed 2d 631 (1986), Arizona v. Roberson, 486 US 675,
682, 100 L Ed 2d 704, 108 S Ct 2093 (1988) and Smith v.
Illinois, 469 US 91, 105 S Ct 490, 83 L Ed 2d 488 (1984).
Supporting Facts:
On October 7, 2001, Lake Oswego Officer
John
Harrington
subj ected
peti tioner
to
a
custodial
interrogation during which petitioner unequivocally invoked
his right to counsel, by asking "May I cal l an attorney?" In
violation of petitioner's
rights
under the
Fifth and
Fourteenth Amendments to the United States Constitution,
Officer Harrington failed to honor peti tioner' s invocation and
cease conversing with him.
Instead, Officer Harrington
continued to speak wi th and question peti tioner under the
guise of clarifying his invocation.
This violation of
petitioner's rights resulted in his making incriminating
statements introduced against him at trial.
Furthermore,
3 - OPINION
A~D
ORDER
Officer Harrington exploited the illegality of petitioner's
post-invocation statements to obtain petitioner's consent to
search his residence.
With that consent, Officer Harrington
and other officers searched petitioner's residence and seized
evidence which the state introduced against him at trial. The
post-invocation statements and evidence taken from petitioner
were a material factor leading to his conviction and
imprisonment.
Respondent
asks
the
Court
to
deny
relief
on
the
Petition on the basis that the claim raised therein:
by the
year
Antite~rorism
sta~ute
Amended
(1) is barred
and Effective Death Penalty Act ("AEDPA") one-
of limitations; and (2) was denied on the merits in a
sta t e co u rt decision entitled to deference.
DISCUSSION
I.
Timeliness and Relation Back
Petitioner concedes that he filed his Amended Petition well
after
the
one-year
AEDPA
limitations
period
had
expired.
Nevertheless, he maintains the claim raised in the Amended Petition
is timely because it relates back to his original,
timely filed,
pro se federal habeas petition.
A new claim in an amended petition that is filed after the
expiration of the one-year limitation period will be timely only if
the new claim relates back to the filing of a claim in a timely
filed pleading under Rule IS (c) (2)
Procedure,
of the Federal Ru l es of Civi l
on the basis that the claim arises out of "the same
conduct,
transaction
pleading.
Mayle v.
or
occurrence
Felix,
II
545 U.S.
as
644
a
claim
(2005).
in
the
timely
In Mayle,
the
Supreme Court held that habeas claims in an amended petition do not
4 - OPINION AND ORDER
arise
out
of
"the
claims
in
the
same
original
conduct,
transaction
petition merely
or
because
challenge the same trial, conviction or sentence.
64.
occurrence"
the
claims
as
all
545 u.s. at 655
Rat h er, under the construction of the rule approved in Mayle,
Rule 15 (c) (2 ) permits relation back of habeas claims asserted in an
amended petition "only when the claims added by amendment arise
from the same core facts as the timely filed claims, and not when
the new claims depend upon events separate in 'both time and type'
form the originally raised episodes."
Id . at 657.
In this regard,
the reviewing court looks to "the existence of a common
operative facts'
'core of
uniting the origina l and newly asserted claims."
A claim that merely adds
"a new
legal
theory tied to
the
same
operative facts as those initially alleged" will relate back and be
timely.
Id. at 659 & n.5.
In this case,
petitioner's original petition al:eged he was
"denied the right to due process and equal protection of the law in
violation of the
Sixth and
States Constitution
Fourteenth Amendments
to
the
Uni ted
when the Trial Court applied an improper
standard to grant Petitioner's Motion for Judgment of Acquittal of
Petitioner's
Motion
to
Compel
the
State
Petitioner's Motion to Suppress Evidence."
to
Elect
denying
and
Petition [1], pp. 12-13
(emphasis added).
The original peti tion further alleges
trial
in
court
erred
Evidence at trial
denying
Peti tioner' s
to convict Petitioner."
5 - OPINION AND ORDER
Motion
Id.
to
at 13.
"[tJ he
Suppress
(emphasis
added).
si~gle
In his amended petition, petitioner raises a
claim
alleging that the trial court's denial of his motion to suppress
evidence derived from an illegal police interrogation in violation
of his rights
Fifth and Fourteenth Amendme n ts was contrary to
~nder
and involved and unreasonable application of control l ing Supreme
Court precedent.
These claims derive from the same core of operative facts,
facts surro unding police questioning of petitioner and the
i.e.,
trial
court's
resolution
of
petitioner's
evidence g l eaned from that interrogation.
motion
Thus,
to
suppress
the Court finds
the claim set forth in petitioner's amended petition relates back
to
his
timely
filed
original
petition
and
it
will
therefore
consider this claim on the merits.
II.
Merits
A.
Standard of Review
An application for writ of habeas corpus shall not be granted
unless
adjudication
decision ttat was:
of
the
claim in
state
court
resulted
in
a
(1)
"contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the
Supreme
Court
of
the
Dni ted
States,"
or
"based
(2)
on
an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding."
A
state
court's
petitioner
bears
findings
the
of
burden
6 - OPINION AND ORDER
fact
of
28
U.S.C.
are
pres umed
rebutting
the
§
2254 (d).
correct
presumption
and
of
correctness
2254
by
clear
and
convincing
28
evidence.
U.S.C.
§
(1).
(e)
A
state
established
court
decision
'8recedent
if
is
the
"contrary
state
court
clearly
to
applies
a
rule
t~at
the governing law set forth in [the Supreme Court's ]
c o ~tradicts
cases" or " i f the state court confronts a set of facts that are
materially
and
from a decision of [the Supreme] Cou rt
indisting~ishable
nevertheless
precedent."
arrives
at
a
resu l t
. :. . :.W-=i:. . :l:. .=l=-=l=- =a' =m:..:. :,=s_v..:. . . . :. . ------,T=-a=.. . . v-=l:. . : :o:. =.r ,
52 9
different
U.
S.
3 62 ,
from
405- 06
[ that]
(200 0 ) .
U:1der the " u nreasonable application" clause, a federal habeas court
may grant re l ief "if the state court
principle from
applies
Id.
that
at 413.
state
court
Id. at 410.
the correct legal
decisi o ns,
but unreasonably
[the Supreme Court's]
principle
to
the
facts
of
the
prisoner's
decision
to
be
more
than
incorrect
or
erroneous.
The state court's application of clearly established
Id. at 409.
Analysis
Petitioner
contends
detectives
impermissibly
question him after he unequivocally invoked his
right
case."
The "unreasonable application" clause requires the
law must be objectively unreasonable.
B.
ide~tifies
to counsel during a
custodial
continued
to
Fifth Amendment
interroga t ion.
Respondent
Baintains that the trial court, in its resolution of petitioner's
pre-trial motion to suppress, comprehensively addressed this issue.
7 - OPINION AND ORDER
After holding a lengthy suppression hearing and making extensive
factual findings,
1.
that court denied relief on the motion.
Legal Standards - Invocation of Right to Counsel
When a person in custody is subject to interrogation, he must
first
be
read
his
Miranda
rights
in
obtained to be admissible in court.
436,
467-68
this
rule may not be admitted for
trial."
(1966)
order
for
the
information
Miranda v. Arizona,
384 U.S.
"Statements elici ted in noncompliance wi th
Stansbury v.
California,
certain purposes
511
U.S.
318,
in criminal
322
(1994) (per
ciJr iam) .
Police are not required to obtain an express waiver of Miranda
rights before proceeding with interrogation.
Butler,
441 U.S.
369,
373
North Carolina v.
(1979) (holding that courts can. infer a
waiver of Miranda rights "from the actions and words of the person
interrogated").
If at any point during the interrogation a suspect
invokes his right to counsel, however, all questioni n g must cease
and may not resume in the absence of counsel unless the suspect
himself
waives
the
Edwards v. Arizona,
Illinois,
469 U.S.
right
by
(1994) .
inquiry.
further
discussions.
451 U.S. 477, 484-85 (1981); see also Smith v.
91,
95
(1984).
Whether t h e accused has
obj ecti ve
initiating
Davis
v.
invoked his right to counsel is an
United
States,
512
U.S.
"A suspect must unambiguously request counsel."
452,
459
Id.
He
must articulate his desire to have counsel present sufficiently
8 - OPINION AND ORDER
clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.
Id.
At
a mi:1imum,
the suspect must make some stateme~t that can reasonably
be construed to be an expression of a desire for the
assistance of an attorney.
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 cocnsel, our precedents do
not require cessation of questioning.
Id.
(inLernal quotations and citations omitted).
include
the words
deemed ambiguous.
"might,"
~,
"maybe,"
Davis,
or
Utterances which
"perhaps"
512 u.s.
at 455
are
("Maybe I should
talk to a lawyer" held ambiguous);
United States v.
F.3d 1179,
If a
1187
(9th Cir.
equivocal
police may,
questions.
Davis,
but
are
512 U.s.
Barrett, 479 U.s. 523, 535
otherwise
2005).
ambiguous
not
at
Younger,
398
request is ambiguous or
required,
461-62;
generally
to
ask
clarifying
see also Connecticut v.
(1987) (" [C] ircumstances may clarify an
[invocation ] .") (Brennan,
J.,
concurring
in
judgment) .
"[A]
statement either is such an assertion of the right to
counselor it is not."
u.s.
at
responses
97-98).
to
Davis, 512 u.s. at 459 (quoting Smith, 469
For
further
this
reason,
an
accused's
postrequest
po l ice questioning cannot be used to cast
doubt on the clarity of the initial request.
Smith,
469 U.S. at
100 (explaining that subsequent statements are relevant only to the
question whether tte accused has
9 - OPINION AND ORDER
wai ved the
right he
invoked).
Accordingly,
a
peti tioner' s
postrequest responses
shou l d not be
used to find that he invoked his right and quickly waived it again
because in order for such a waiver to be found,
had to cease
for a
period of time.
the interrogation
See Snith,
469 u.S.
at
98
("[W]e accordi.ngly have emphasized that a valid waiver "cannot be
established by showing only that [the accused] responded to further
police-initiated custodial
interrogation.") (quoting Edwards,
451
u.S. at 484 ) ).
This
rule
exists
requests counsel,
that
~he
to
discourage
police,
after
from asking additional questions
defendant
might
be
induced
to
say
an
"in the hope
something
retrospective doubt on his initial statement .... "
accused
casting
Id. at 99.
In
Smith, the suspect made a plain request for counsel while receiving
his Miranda warnings followed closely by other statements in which
he essentially agreed to talk to police without counsel present.
The
state
supreme
court
found
the
statements,
considered as
a
totality, to be ambiguous and determined that the accused had not
invoked the right to counsel.
The Supreme Court reversed, holding
that "an accused's postrequest responses to further interrogation
may not be used to cast retrospective doubt on the clarity of the
initial request itself."
Under
Smith,
it
Id. at 100 (emphasis in original ) .
is
irrelevant
whether
further
police
questioning seeks "clarifying" or "material" information.
Smith,
469 u.S. at 98 ("Where nothing about the request for counselor the
10 - OPINION AND ORDER
circumstances leading up to the request would render it ambiguous,
all
questioning
must
In
cease.")
Smith,
the
officer
simply
contin u ed giving the suspect his Miranda rights and those contin u ed
questions were found to constitute impermissible "police-initiated
custodial interrogation."
2.
As
noted
rd. at 98.
Application
above,
a
state
court
acts
contrary
to
clearly
established federa l law if it app l ies a legal rule that contradicts
prior Supreme Court holdings.
362, 412-13 (2000).
See W
ill iams v.
Taylor,
529 u. S.
Therefore, whether the trial court's decision
here applied a legal rule contradictory to the holdings of Smith
hinges on whether petitioner made a request for counsel that was
clear and unambiguous.
address
"the
However,
circumstances
in
Smith was "narrow" a n d did not
which
an
accused's
request
for
counsel may be characterized as ambiguous or equivocal as a resu l t
of events
r:-equest
preceding
itself,"
equivocation.
The
request
the
or of nuances
consequences
of
inherent
such
in
the
ambiguity
or
Smith, 469 u.S. at 99-100.
central
determination,
or
the
issue
that
the
here
is
totality
whether
of
the
trial
circumstances
court's
rendered
petitioner's request "May I call an attorney?" ambiguous and that
he did not invoke his right to counsel, was contradictory to, or an
unreasonable application of, Supreme Court precedent, i.e., whether
the trial court could reasonably find that a reasonable officer in
11 - OPINION AND ORDER
the
circumstances
"merely"
a
could
question
or
understand
to
be
peti tioner' s
otherwise
request
ambiguous
due
to
to
be
any
preceding statements or nuances in the request itself.
The Ninth Circuit recently upheld as a reasonable application
of clearly established Supreme Court
precedent
a
state
court's
finding that a suspect's pre-Miranda question asking whether he was
entitled to a lawyer was not an actual invocation of the right to
counsel.
Sessoms v.
Runnels,
650 F.3d 1276,
1288
(2011).
In so
holding, the court noted:
When Sessoms asks if he is entitled to an attorney, his
inflection, body language, and manner support the state
court's conclusion that he was completely unaware if he
eve~ had a right to counsel under the circumstances and
was only asking if he could request counsel.
Id. at 1288.
Sessoms,
however,
is distinguishable from petitioner's case
because there the accused asked whether he was entitled to a lawyer
before he was advised of h i s Miranda rights to that effect.
In
contrast here, petitioner had been advised of his Miranda rights,
had indicated that he understood them,
and had given an implied
waiver of those rights by continuing to talk to the officers.
Butler,
rights) .
441
U.S.
at
373
(suspect
can
implicitly waive
See
Miranda
The requirement in Davis that a suspect articulate his
desire for counsel clearly enough that a reasonable police officer
in the circumstances WOJld understand the
12 - OPINION AND ORDER
state~ent
to be a request
for an attorr-ey applies only to post-waiver requests.
See Sessoms,
650 F.3d at 1283 (citing Davis, 512 u.S. at 460-61).
Notably, the trial court found t h at the detectives' version of
what transpired from t h e time of petitioner's arrest at h is home
thro ug h his interrogation at the police station to be consistent
a nd
credible.
W ile petitioner gave
h
a
sigJli::=icantly different
version of events at h is suppression heari n g which the tr i al court
found
incredible,
credibility
finding
convincing evidence
he
as
has
to
in his
failed
the
to
history
rebut
the
of
state
events
by
briefs before this Court.
court's
clear
and
Briefly,
detectives described the relevant events as fo l l ows:
Officers arrested petitioner at his home as he left his
house for work.
•
Officers advised petitioner of his Miranda rights and he
acknowledged that he understood them.
Detective Harrington then asked petitioner for permission
to search his house to look for i mplements related to the
victims' allegations.
Petitioner stated that he would have to call his wife or
"somebody" before letting officers search the house.
Detective Harrington responded that they would deal with
the search issue later on.
Petitioner was transported to the Lake Oswego Police
Department.
The transporting officers reported that
petitioner had not said anything en route to the po l ice
station.
Petitioner's handcuffs were removed and he was put in an
interview room.
After answering basic biographica l questions, petitioner
continued to participate in the interview and answer
13 - OPINION AND ORDER
numerous questions related to the allegations
him.
He consistently denied any wrong doing.
against
Some time into the interview, and after emphatically
denying that he had sexual intercourse with the victim,
petitioner told detectives that he wanted to call a
family member.
In response, Detective Harrington advised petitioner that
he (Detective Harrington) wanted to search petitioner's
~ouse for certain items he believed were still there and
t~at if petitioner could wait to call a family member, no
one could later accuse peti tioner of having someone
remove t h ose items.
The detective testified that
petitioner agreed to wait until after the interview and
maintained there was nothing illegal in his house.
Questioning continued and following an exchange related
to petitioner's cessation of contact with the victim,
petitioner stated "The amazing thing is that if you want
to talk to an attorney in a case like this,
you
automatically seem guilty," followed by "May I call an
attorney?"
Detective Harrington then assured petitioner that he had
the right to talk to an attorney, that he would make a
phone available, and that if petitioner wanted to talk to
an attorney, he would end the interview and allow
petitioner to contact counsel. The detective then stated
"If you merely want to call a faf1ily member to inform
them that you've been arrested, I would prefer you wait
on that," and again told petitioner that by waiting no
one could later argue items from petitioner's home had
been removed or tampered with.
Detective Harrington then asked petitioner "Do you wish
to contact an attorney and seek counsel, or do you wish
to proceed with us asking questions."
Petitioner
responded that he wanted to keep talking to de~ectives.
Transcript Designation - Part A, pp. 16-42.
In denying petitioner's motion to suppress,
the trial court
reasoned as follows:
We don't yet have an ironclad rule that no interrogation
by a police officer can take place without the presence
14 - OPINION AND ORDER
of an attorney, and so we have rules which require t h at
if an attorney is desired, then the defendant whose right
it is to have that attorney has to make that clear and
has to -- that has to be invoked in some matter.
I do not believe that there was any mention by Mr.
Giancana of an attorney until the discussion wh ich took
place in the interrogation room at the police station
about the concern on Mr. Giancana's part that in this
kind of case a request for an attorney makes one l ook
guilty. Now, obviously the fact that that even came up,
obviously and I think fairly suggesLs that it is likely
that that's something that Mr.
Giancana had been
considering as he thought about this startling and
u n u sual event of being arrested, that -- you know, that
if at some point in the process he was to ask for a
lawyer, you know, it might make him look guilty.
Now, t h at's a mental ca l culati on that an individual may
well make and :nay come down on ei ther side of that
question, whether to and when to ask for an attorney, and
it appears clear that - up until that point Mr. Giancana
had in fact not asked for an attorney.
But when he was
considering that, certainly he raised that issue in the
context of this fairly amicable interchange between the
officer and the defendant about these allegations and his
firm denial in large measure and unwavering denial
throughout.
The -- and then after raising that issue and suggesting
the negative implications that one might draw from a
person asking for an attorney, says, you know, "May I
call an attorney?" And at that point the offi.cers did,
I believe, exactly what they were supposed to do, and
that is stop, make sure that they knew what was being
requested.
And here they -- you know, they indicated
that if he wanted a lawyer that he could have one, and
that they would make one available, and they would stop
the questioning, and entirely consistent with the advice
that t~e defendant already indicated that he was aware of
from h i s childhood, but also what had been reinforced in
the Miranda warnings read to him at the time of his
arrest, that they would stop questioning and provide an
attorney.
Now, yes, they did go on and speak to the issue about
calling a family member, and I don't -- you know, I don't
give that the same kind of import that, you know, that
15 - OPINION AND ORDER
Mr. Bowman suggests in terms of it having some insidious
purpose, but in the context in which the defendant was
questioning whether
you know, what would be the
implications of calling an attorney in terms of making
himself look glJilty to the police, and then "May I call
an attorney?"
In my view,
the fact that he had had a previous
discussion about calling a family member and the question
about simply advising his family that he's been arrested
and such, is not unreasonable in my view in this context
for the officer to say, "Now, you know, if you want an
attorney, here's what we'll do.
Now, if you're just -
if you just want -- are trying to just let somebody know
that you've been arrested, then -- you know, then we
should wai t . "
And I think that, you know, whether
that's, you know, the most courteous way to approach the
issue about calling a family member or not is not really
a matter of constitutional import, the way the issue
about representation by counsel is, and -- but I don't
find anything about that that is inconsistent with
providing Mr. Giancana an opportunity to make the call.
"Do you want to talk with us or not?"
And the very next thing is that Mr. Giancana then
according to the police officers, which I found to be
entirely consistent and believable, was that he then
spontaneously, not in response to any question, but then
he hi~self began talking again about how it was his wife
that always allowed Ashley to dress provocatively, you
know, et cetera, et cetera, and from there the police
continued to discuss with him these issues consistent
with his indication that he did not want to stop the
discussion and did not intend to halt the questioning,
and by his conduct there made clear he didn't want to
interrupt the discussion and call an attorney at that
time.
* * *
An d there's just nothing to indicate any effort on [the
officers' part to subvert Mr. Giancana's rights [related
to his invocation of counsel] in that regard, and in fact
the evidence is all to the contrary, that essentially
that right was simply never invoked by Mr. Giancana.
Id. at 259-64.
16 - OPINION AND ORDER
As a pre l iminary matter, and in consideration of relevant case
law
and
the
trial
court's
characterization
of
petitioner
as
a
"self-employed successful businessman," "insurance broker," and one
who was "obviously very self-possessed,
with
the
fact
officers
had
attorney?"
examined
in
petitioner
isolation,
unambiguous request for counsel.
regarding
petitioner's
unreasonable
officer
given
his
Miranda
the Court finds that petitioner's statement "May I call
war~ings,
an
that
self-confident," coupled
for
that
hearing
level
court
constitute
would
Given the trial court's findings
of
it
sophistication,
to then conclude that
peti tioner' s
an
statement
~n
a
isolation
would
be
reasonable
would
not
construe it as an expression of a desire for assistance of counsel.
Significantly, however, and in accord with Smith, 469 U.S. at
99-100, the trial court did not examine petitioner's statement in
isolation.
Rather,
it considered the statement in the context of
"events preceding the request or of nuances inherent in the request
itself," specifically taking note of the comment petitioner made
jest prior to asking for counsel wherein he lamented how asking for
an
attorney
previous
Harrington
menber.
in
a
case
discussions
related
In
detectives
peti tioner' s
this
~ad
to
like
his
had
between
petitioner's
context,
properly
statement
made
the
asked
"May
17 - OPINION AND ORDER
I
you
petitioner
requests
trial
court
clarifying
call
seem guilty,
an
and
the
and
Detective
call
a
to
concluded
questions
attorney?"
to
family
that
the
following
determine
whether petitioner in fact wanted to invoke h i s right to counsel
and suspend the interview.
Accordingly,
question,
was
it
contrary
while the Court finds it is a relatively close
ca~not
to,
conclude that the trial co u rt's determination
or
involved
an
unreasonable
application
of,
clearly established Federal law, as determined by the Supreme Court
of
Un ited States. 1
the
As
the
trial
court
noted,
peti tioner' s
comment expressing his concern that if he asked for an attorney it
might make him look guilty could have indicated to a
officer
right
that
petitioner
to counsel.
addition,
although
remained
Tra~script
less
conflicted
Designation,
persuasive,
the
about
Part A,
Court
reasonable
invoking
p.
finds
260.
the
his
In
trial
court's reference to the prior discussions between petitioner and
Detective Harrington about petitioner's request to call a family
member as a possible indicator to officers that the request was
amb i guous and warranted clarification, was not unreasonable.
Finally,
given
the
Court's
determination
above,
it
also
rejects petitioner's argument that Detective Harrington "exploited
For the reasons already discussed above, in determining
whether petitioner's statement "May I call an attorney" was an
unambiguous request for counsel, neither petitioner's subsequent
responses to the officers' "clarifying" questions nor his continued
participation in the interrogation can be used to cast doubt on the
clarity of his original statement. The Court is satisfied that the
trial court appropriately focused on the circumstances leading up
to the statement to determine it was ambiguous and find that
petitioner had not invoked his right to counsel.
18 - OPINION AND ORDER
the illegaiity of petitioner's post-invocation statements to obtain
petitio~er's
[40 J at 8;
consent to search his residence."
Amended Petition
see also Petitioner's Brief in Support
[41]
at 35-36.
Petitioner has failed to rebut by clear and convincing evidence the
trial
court's
factual
findings
supporting
its
conclusion
that
petitioner's consent to the search was "freely and willingly and
voluntarily" given.
At a minimum,
petitioner cannot demonstrate
that the trial court's reasoned denial of petitioner's pre-trial
motio~
to suppress, even if debatable, was contrary to, or involved
an unreasonable
applica~ion
of, clearly established Federal law, as
determined by the Supreme Court.
CONCLUSION
For these reasons,
the Amended Petition for Writ of Habeas
Corpus [40J is DENIED, and this case is DI SMISSED, with prejudice.
A
cert~ficate
only:
were
of appealability is granted as to the following issue
Whether petitioner's Fifth and Fourteenth Amendment rights
violated
when
the
trial
court
concluded
he
did
unequivocally or unambiguously invoke his right to counsel.
u.S.C. § 2253(c) (2).
IT IS SO ORDERED.
DATED this
?~
r2 day of June,
2012.
1"---!;\-::----.~n
es
States District Judge
19 - OPINION AND ORDER
not
See 28
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