From Casetext: Smarter Legal Research

Thomas v. Lamarque

United States Court of Appeals, Ninth Circuit
Feb 1, 2005
121 F. App'x 220 (9th Cir. 2005)

Opinion

Argued and Submitted Jan. 14, 2005.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Rebecca P. Jones, San Diego, CA, for Petitioner-Appellant.

Sara Gros-Cloren, AGCA-Office of the California Attorney General, San Diego, CA, for Respondent-Appellee.


Appeal from the United States District Court for the Central District of California, Nora M. Manella, District Judge, Presiding. D.C. No. CV-02-00087-NMM.

Before: O'SCANNLAIN, CLIFTON, Circuit Judges, and WEINER, District Judge.

The Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

California state prisoner Charles E. Thomas appeals the district court's denial of his petition for habeas corpus under

Page 222.

28 U.S.C. § 2254. Like the district court, we conclude that the California Court of Appeal's rejection of Thomas's claims was neither contrary to, nor an unreasonable application of, clearly established federal law. Accordingly, we affirm.

Although the interrogating detectives did not specify that Thomas's right to counsel applied before and during questioning, several federal courts of appeals have found similar general advisements adequate under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See, e.g., United States v. Frankson, 83 F.3d 79, 82 (4th Cir.1996); United States v. Caldwell, 954 F.2d 496, 502 (8th Cir.1992); United States v. Burns, 684 F.2d 1066, 1074-75 (2d Cir.1982); United States v. Adams, 484 F.2d 357, 361-62 (7th Cir.1973). That the Ninth Circuit has adopted a contrary view in a case involving a federal prosecution and conviction, rather than a Section 2254 petition, see United States v. Noti, 731 F.2d 610, 614-15 (1984), does not establish Thomas's right to habeas relief. Rather, "[t]he very fact that circuit courts have reached differing results on similar facts leads inevitably to the conclusion that the [state] court's rejection of [the habeas] claim was not objectively unreasonable." Clark v. Murphy, 331 F.3d 1062, 1071 (9th Cir.2003).

Nor was it objectively unreasonable to conclude that in light of the totality of the surrounding circumstances, Thomas's confession was voluntary. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Though we share the state court's concern with the detectives' "constitutionally suspect tactics," we find in the transcripts and videotape of the interrogation adequate support for the finding that Thomas nevertheless "remained calm and defiant."

Given our conclusions above, we also reject Thomas's claim of ineffective assistance of counsel. Each of the courts that considered Thomas's claims on direct and collateral review has rejected his challenges to the admission of his confession. For this reason, Thomas cannot demonstrate prejudice from his counsel's alleged failure to raise and preserve these challenges. See Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Finally, we construe Thomas's assertion of issues not certified by the district court as a motion to expand the certificate of appealability. 9th Cir. R. 22-1(e). We conclude that Thomas has failed to make a substantial showing that the alleged violations resulted in a denial of his constitutional rights. 28 U.S.C. § 2253(c)(2). First, although the detectives delayed and attempted to trivialize the Miranda warnings, their advisement reasonably conveyed Thomas's rights. See Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). Second, Thomas's repetition of the phrase "we're done," which could have been interpreted as merely mimicking Detective Wolf or as expressing agreement that they were "done" discussing his alibi, was not an unambiguous and unequivocal invocation of his right to terminate questioning. See Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir.2001); Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir.1994); cf. Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). We thus deny the motion to expand the certificate of appealability.

AFFIRMED.


Summaries of

Thomas v. Lamarque

United States Court of Appeals, Ninth Circuit
Feb 1, 2005
121 F. App'x 220 (9th Cir. 2005)
Case details for

Thomas v. Lamarque

Case Details

Full title:Charles Edward THOMAS, Petitioner--Appellant, v. A.A. LAMARQUE, Warden…

Court:United States Court of Appeals, Ninth Circuit

Date published: Feb 1, 2005

Citations

121 F. App'x 220 (9th Cir. 2005)

Citing Cases

United States v. Waters

Although the Detective Paulsen did not specify that defendant's right to counsel applied before and during…

United States v. Davis

Several courts of appeals have found similar general advisements adequate under Miranda. See, e.g., Thomas v.…