Bird v. Brigano , 295 F. App'x 36 ( 2008 )

File Name: 08a0582n.06
Filed: September 30, 2008
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 06-4438
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DERRICK BIRD,
Petitioner-Appellant,
v. ON APPEAL FROM THE
UNITED STATES DISTRICT
ANTHONY J. BRIGANO, Warden, COURT FOR THE SOUTHERN
DISTRICT OF OHIO
Respondent-Appellee.
/
Before: MARTIN, ROGERS, and SUTTON, Circuit Judges.
BOYCE F. MARTIN, JR., Circuit Judge. Derrick Bird, a state prisoner, petitioned the
district court for a writ of federal habeas corpus. Bird claims that his Fifth Amendment right against
self-incrimination was violated when, after being given his Miranda warnings and waiving those
rights, police failed to cease questioning him after he subsequently invoked his right to remain silent.
Under deferential habeas review, however, we cannot agree. We therefore affirm the district court's
denial of Bird’s habeas petition.
I.
In May 2001, Middletown, Ohio police suspected Derrick Bird of murder and contacted him.
Bird eventually went to the police station where officers interviewed him in a locked interrogation
room. They gave him his Miranda warnings, he signed a waiver card, and he submitted to
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questioning. After a lengthy statement, Bird was arrested and booked. He filed a motion to suppress
his statement, which was denied, and he was eventually convicted of aggravated murder and
aggravated robbery and sentenced to consecutive terms of life imprisonment.
The Ohio Court of Appeals affirmed Bird’s convictions on direct appeal, State v. Bird, 2003
WL 21135272 (Ohio App. 12 Dist. May 19, 2003), and the Ohio Supreme Court denied leave to
appeal. Bird filed a federal habeas corpus petition in the district court alleging that: (1) after giving
him his required Miranda warnings, police violated his Fifth and Fourteenth Amendment rights
when they failed to honor his demands to end custodial interrogation; and (2) his Fourth and
Fourteenth Amendment rights were violated because the warrant for his arrest was not assessed for
probable cause, did not contain case-specific facts in the affidavit, and led to an incriminating
statement. The state filed a return of writ, and Bird filed a reply. The magistrate judge
recommended that Bird’s petition be denied as without merit and that the district court not issue a
certificate of appealability. After Bird’s objection, the district court adopted the magistrate judge’s
recommendation and denied Bird’s petition, but it sustained his objections insofar as the court
granted Bird a certificate of appealability with respect to his claim that his right to remain silent was
violated. This Court denied Bird a certificate of appealability on his second claim, and we now
address his first.
II.
We review a district court’s legal conclusions and mixed questions of law and fact de novo,
and we review its factual findings for clear error. Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.
2004); Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999). Under the Antiterrorism and Effective
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Death Penalty Act of 1996, a federal court may not set aside a state judgment sustaining a prisoner’s
conviction without finding that the decision (1) is “contrary to,” or an “unreasonable application”
of, “clearly established federal law,” or (2) was based on an “unreasonable determination of the facts
in light of the evidence presented” to the state courts. 28 U.S.C. § 2254(d).
A state court decision is “contrary to” established federal law if the state court arrives at a
conclusion opposite to that reached by the Supreme Court on a question of law or if it decides a case
differently than the Supreme Court on materially indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 412-13 (2000). A state court decision is an “unreasonable application” of clearly
established federal law if the state court identified the correct legal principle but unreasonably
applied it to the facts of the prisoner’s case. Id. at 413. And although “clearly established federal
law” in § 2254(d)(1) simply “refers to the holdings” of the Supreme Court, courts may look to the
lower courts of appeals’ decisions to inform the analysis of Supreme Court holdings in determining
whether a legal principle has been clearly established by the Supreme Court. Hereford v. Warren,
536 F.3d 523, 528 (6th Cir. 2008) (citing Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir. 2003)).
III.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case
to be a witness against himself.” U.S. Const. amend. V. The government may not use statements
obtained from a suspect during a custodial interrogation unless the suspect was given the warnings
of Miranda v. Arizona, 384 U.S. 436, 444 (1966), and waives his rights “voluntarily, knowingly, and
intelligently.” Id. If, after a valid waiver, the suspect “indicates in any manner, at any time . . . during
questioning, that he wishes to remain silent, the interrogation must cease.” Id. at 473-74. Although
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sufficient requests to invoke the right to remain silent must be “scrupulously honored,” Michigan
v. Mosley, 423 U.S. 96, 103 (1975) (internal quotations omitted), the Supreme Court has not
specifically addressed what qualifies as a sufficient post-waiver invocation of the right to remain
silent. In the context of a post-waiver request for counsel, however, the Court has stated that “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,” then police are not required to cease questioning. Davis v. U.S., 512 U.S. 452, 459
(1994) (emphasis in original) (“[T]he suspect must unambiguously request counsel.”); see also
McGraw v. Holland, 257 F.3d 513, 519 (6th Cir. 2001) (applying Davis to an invocation of the right
to remain silent).
With these principles in mind, we turn to Bird’s two primary arguments on appeal. He first
argues that the Ohio Court of Appeals applied law “contrary to” Supreme Court law by relying only
on its own Ohio case law, which he claims failed to follow Supreme Court precedent. This ought not
delay us long. The Ohio Court of Appeals relied primarily on State v. Murphy, 747 N.E.2d 765 (Ohio
2001), a case which applied, quoted, and cited Davis and properly identified the principle that police
need only cease an interrogation if the suspect’s request is “unambiguous.” Id. at 778. And the Ohio
Court of Appeals itself explained this principle in language paralleling language in Davis. State v.
Bird, 2003 WL 21135272 (Ohio App. 12 Dist. May 19, 2003). This is enough under the deferential
AEDPA standard to conclude that the state court decision was not objectively unreasonable. But we
also observe that it is difficult for a federal court to say that a state court acted contrary to Supreme
Court law when the Supreme Court has not specifically addressed the question. See Carey v.
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Musladin, 549 U.S. 70 (2006).
Second, Bird points to two incidents that he claims amounted to unequivocal demands to
cease questioning. The first incident occurred about a half an hour into the interrogation, when Bird
stated that “there’s no sense me sitting here trying to say what happened with me . . . because as
usual, when it comes to Derrick Bird, he’s guilty.” He then stood up, saying, “You take me in; get
booked, man.” The detectives told him to sit back down. Bird then continued to answer questions.
The second incident occurred sometime later, when a third detective entered the room and told him:
“This is your chance to talk about it. You been talking about it [to others].” Bird replied:
“Everything’s right there in the paper. I’m done talking about it.”
Bird argues that his standing up, especially when coupled with his later statement that he was
“done talking about it,” could be viewed as an invocation of his right to silence. And taken in
isolation, out of context, that is not an unreasonable conclusion. But context matters. When Bird
stood up and talked about getting taken in (despite already being at the police station) the state court
was not unreasonable in finding that his actions did not amount to an “unambiguous” request for
counsel. As the district court observed, this could reasonably be interpreted as simply an act of
frustration, not an attempt to end the interview. And the “paper” Bird referred to was not a sworn
statement he had made but was instead, as the Ohio Court of Appeals found, a list of the witnesses
the police had recently spoken to along with statements they had made incriminating Bird. Indeed,
the Ohio Court of Appeals, the magistrate judge, and the district court all reviewed the videotape of
the police interrogation in this case before concluding that Bird’s supposed invocations of his right
to remain silent were ambiguous.
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Moreover, even if we were inclined to agree with Bird, the state court’s decision did not
amount to an unreasonable application of federal law in light of relevant precedent. For example, in
McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001), this Court granted petitioner’s habeas relief,
concluding that she had unambiguously invoked her right to remain silent when she repeated that
she “didn’t want to talk about it” eight or nine times. Id. at 517-18; see also Anderson v. Terhune,
516 F.3d 781, 786 (9th Cir. 2008) (en banc) (holding unreasonable a state court’s conclusion that
the invocation of the right to remain silent was ambiguous where “the defendant not only use[d] the
facially unambiguous words ‘I plead the Fifth,’ but surround[ed] that invocation with a clear desire
not to talk any more”). These cases set a standard Bird cannot meet, and thus the state court did not
unreasonably apply federal law in holding that Bird’s invocations were insufficient.
IV.
For the foregoing reasons, we AFFIRM the district court's denial of habeas relief.