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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-11375
Non-Argument Calendar
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D.C. Docket No. 0:17-cv-62323-WPD
OLIVER THOMAS,
Petitioner – Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondent – Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(May 9, 2019)
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Before JORDAN, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Oliver Thomas appeals pro se the district court’s denial of his 28 U.S.C.
§ 2254 habeas petition. He contends that the prosecutor’s repeated references at trial
to his failure to explain how his fingerprints were found at the murder scene violated
his Fifth, Sixth, and Fourteenth Amendment rights. Because the state court did not
unreasonably apply clearly established federal law in denying Mr. Thomas’ claim,
we affirm.
I
Mr. Thomas was convicted and sentenced to life in prison for armed robbery
and first-degree murder. At the crime scene—a gas station—the police discovered
an unopened pack of Newport cigarettes under the cash register. A later fingerprint
analysis revealed that the pack bore Mr. Thomas’ little finger and index fingerprints.
When Mr. Thomas was brought in for questioning, an officer asked him—after
reading him his rights, see Miranda v. Arizona,
384 U.S. 436 (1966)—whether he
could explain the fingerprints. 1
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One of the officers testified that he informed Mr. Thomas of his right to remain silent and his
right to an attorney, and that Mr. Thomas chose to voluntarily speak to the police. Mr. Thomas
did not object to this recounting of his interview with the officers, and the trial court appeared to
agree that Mr. Thomas waived his Miranda rights by choosing to speak. See D.E. 13-1 at 1368
(“In this case the defendant gave statements, he gave statements to the police not once but a few
times after Miranda was invoked, after the defendant was advise[d] of Miranda.”).
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At this point, Mr. Thomas’ version and the officer’s version of the events
diverge. There is no definitive account of the interview because the officer did not
record it.
The officer testified that, after some casual conversation, he told Mr. Thomas
that the police had found his fingerprints at the scene of the crime, and Mr. Thomas
then “started getting undressed.” D.E. 13-1 at 1149. When the officer played a tape
of the suspected getaway driver identifying Mr. Thomas as the armed robber, Mr.
Thomas claimed that the driver was lying.
Id. at 1149–50. The officer then asked
him to explain how the police found his fingerprints at the crime scene. According
to the officer’s testimony, Mr. Thomas “couldn’t explain . . . how his fingerprints
were on the cigarettes.”
Id. at 1152.
In his testimony at trial, Mr. Thomas explained that he removed his clothes at
the interview to show the officer that he “was the victim of a shooting” that occurred
days before the robbery.
Id. at 1352–53. During cross-examination, the prosecutor
asked Mr. Thomas “how is it that your fingerprints got on a pack of cigarettes left
underneath the cash drawer after a robbery/murder took place?”
Id. at 1363. Mr.
Thomas responded that he didn’t “have the slightest idea” but thought that it might
be because he had bought some cigarettes before meeting his girlfriend at a club, and
the clerk gave him the wrong box.
Id. at 1363–64. “[H]e gave me a short pack,”
Mr. Thomas testified. “I asked him for a long pack, and I gave him the short pack
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back, he gave me the long pack, and I left.”
Id. at 1364. The prosecutor then asked
why this account differed from a letter the police found between Mr. Thomas and
the getaway driver, in which Mr. Thomas alleged that the “police planted the
cigarettes on the counter.”
Id. at 1370. Mr. Thomas responded that he wrote the
letters to convince the getaway driver to confess that he had lied to the police—he
was only assuming that the cigarettes were planted.
Id. at 1375.
The prosecution also raised what it characterized as Mr. Thomas’ failure to
explain the fingerprints in both its opening statement and closing argument. During
the state’s opening statement, the prosecutor said that Mr. Thomas “has no
explanation for why his fingerprint could possibly be on a pack of cigarettes on a
counter under the cash drawer.” D.E. 13-1 at 569. During Mr. Thomas’ closing
argument, his attorney said: “The State put on testimony, okay, that those
fingerprints appear to be Oliver Thomas. Oliver Thomas is left trying to figure out
how his fingerprints ended up on a pack of Newport cigarettes, and he’s coming up
with lots of different hypotheses. . . . The difference is we can give you our
hypotheses about how it’s possible but we have nothing to prove.”
Id. at 1453. On
rebuttal, the prosecutor stated that the defense “basically glossed over, gee, we can’t
explain to you why his prints are on that pack of cigarettes.”
Id. at 1492.
The defense repeatedly objected to the prosecutor’s and the officer’s
statements, arguing that they (1) amounted to impermissible commentary on Mr.
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Thomas’ constitutionally protected silence, and (2) constituted impermissible
burden shifting.
Id. at 570, 1492. The prosecution responded by arguing that Mr.
Thomas in fact made an affirmative statement instead of staying silent, because he
“specifically sa[id] he could not explain it, he had no explanation.”
Id. at 571.
The trial court overruled Mr. Thomas’ objections. After, the jury found Mr.
Thomas guilty, and the trial court sentenced him to life in prison. Mr. Thomas
repeated his arguments on appeal to the Florida Fourth District Court of Appeal,
which affirmed his conviction in a one-word opinion. He pursued the same issues
in state post-conviction motions and was again denied relief.
Mr. Thomas then filed a § 2254 habeas petition that, among other claims,
repeated his constitutional objections to the prosecutor’s statements about his lack
of an explanation for the fingerprints. The district court denied his petition because
“the objected to comments and testimony were more about the absence of evidence,
rather than a comment on [Mr.] Thomas’s silence.” D.E. 16 at 4. Thus, it was not
an unreasonable application of federal law for the Florida courts to find the
“questions were proper impeachment . . . not a comment on what was not said.”
Id.
at 5.
Mr. Thomas sought a certificate of appealability, which the district court
granted on one issue: “Whether the prosecutor’s repeated references to [Mr.]
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Thomas’ lack of an explanation for his fingerprints being on the cigarette pack was
improper and, if so, whether harmless error applies?” D.E. 17 at 1.
II
We review de novo a district court’s denial of a § 2254 petition. See Reed v.
Sec’y, Fla Dep’t of Corr.,
593 F.3d 1217, 1239 (11th Cir. 2010). Under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), however, we may only
grant habeas relief when claims adjudicated on the merits in state court are “contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
For a state-court decision to be an “unreasonable application” of Supreme Court
precedent, it must be more than incorrect—it must be “objectively unreasonable.”
Lockyer v. Andrade,
538 U.S. 53, 75 (2003). The state prisoner “must show that the
state court’s ruling on the claim being presented in federal court was so lacking in
justification that there was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011).
Mr. Thomas asserts that the Florida courts violated his clearly established
right to remain silent by permitting the prosecution to comment on his failure to
explain how his fingerprints were found on the pack of cigarettes at the crime scene.
By allowing these statements, he argues, the trial court also impermissibly shifted
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the burden the proof to him to come forward with an explanation for the fingerprints
and proof of his innocence.
In Doyle v. Ohio,
426 U.S. 610 (1976), “the Supreme Court held that the use
of a defendant’s silence at the time of his arrest for impeachment purposes violates
due process because warnings pursuant to Miranda . . . carry an implicit assurance
that silence will carry no penalty.” United States v. Reeves,
742 F.3d 487, 504 (11th
Cir. 2014). “[B]ut a defendant who voluntarily speaks after receiving Miranda
warnings has not been induced to remain silent. As to the subject matter of his
statements, that defendant has not remained silent at all.” Anderson v. Charles,
447
U.S. 404, 408 (1980). See also Lofton v. Wainwright,
620 F.2d 74, 78 (5th Cir. 1980)
(holding that once a defendant “chooses to contradict his post-arrest statements to
the police . . . it becomes proper for the prosecutor to challenge him with those
statements”).
Here, the Florida courts reasonably determined that Mr. Thomas’ post-
Miranda statement concerning the fingerprints was not covered by Doyle. Rather
than staying silent when the police officers confronted him with the fingerprint
evidence found at the crime scene, Mr. Thomas expressly stated that he did not know
how his fingerprints were there. At trial, he then attempted to contradict those
statements by explaining that he previously bought cigarettes at the store. As far as
we can tell, there is no established federal law that forecloses the prosecution from
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using Mr. Thomas’ own inconsistent statements to impeach his trial testimony after
he chose to testify. Cf. Routly v. Singletary,
33 F.3d 1279, 1290–91 (11th Cir. 1994)
(adopting the district court’s order: where the defendant chose to testify, the
prosecutor’s references to his right to take the stand did not violate his right to remain
silent, absent evidence that the defendant incriminated himself during his testimony).
Nor did the prosecution shift the burden of proof to Mr. Thomas by referring
to his post-Miranda statement. Mr. Thomas argues that, as a result of the
prosecution’s impermissible use of his statements about his fingerprints, he was left
with “no choice but to testify in order to give a reasonable hypothesis as to why his
fingerprints were left at a contaminated crime scene.” Appellant’s Br. at 15. This
forced him to “become a witness against himself violating his Fifth Amendment
right.”
Id. at 17. But once Mr. Thomas voluntarily chose to make a statement to the
police after being Mirandized, he opened himself to the possibility that those same
statements could be used against him at trial. See Harris v. New York,
401 U.S. 222,
225–26 (1971). See also United States v. Dodd,
111 F.3d 867, 869–70 (11th Cir.
1997) (holding that the prosecution’s reference to the defendant’s custodial
statements were permissible because “[t]he prosecutor’s comments here can
reasonably be read to refer to the inconsistency between [the defendant’s] defense
and his post-Miranda statement”).
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III
For the foregoing reasons, we affirm the district court’s denial of Mr. Thomas’
§ 2254 petition.
AFFIRMED.
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