Anthony Bone v. Marvin Polk , 441 F. App'x 193 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-6969
ANTHONY MAURICE BONE,
Petitioner - Appellant,
v.
MARVIN L. POLK, Warden,
Respondent - Appellee.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:04-cv-01074-JAB-WWD)
Argued: May 13, 2011 Decided: July 29, 2011
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: James Donald Cowan, Jr., ELLIS & WINTERS, LLP, Cary,
North Carolina, for Appellant. Clarence Joe DelForge, III,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina,
for Appellee. ON BRIEF: Heather Howell Wright, Sophia Liao
Harvey, ELLIS & WINTERS, LLP, Greensboro, North Carolina, for
Appellant. Roy Cooper, Attorney General, Mary Carla Hollis,
Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Contending he did not knowingly and intelligently waive his
Miranda 1 rights and that his trial counsel was ineffective in
failing to raise the issue during his criminal proceeding,
Anthony Maurice Bone appeals the denial of his 28 U.S.C. § 2254habeas petition. Because Bone knowingly and intelligently waived
his rights, we affirm.
I
The facts underlying this petition are well known to the
parties and set forth in the district court’s memorandum order,
Bone v. Polk, 2010 WL 2733333, *2-10 (M.D.N.C. July 9, 2010). We
therefore present only a brief synopsis here.
After an anonymous tip pointed police to Bone as a suspect
in an ongoing murder investigation, Detective Robin Saul of the
Greensboro Police Department located Bone and escorted him to
the police station to be interviewed. When questioned and read
his Miranda rights, Bone refused to sign a Miranda waiver or to
turn over his “Chuck Taylor” shoes, which were of particular
interest to police given shoeprint evidence taken from the crime
scene. During his initial interview, which lasted roughly an
hour and a half, Bone denied involvement in the burglary and
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
murder. Detective Saul then ended the interview, placed Bone
under arrest, and arranged for Bone to be taken before a
magistrate so that an arrest warrant could be issued.
After Bone was served with the arrest warrant, he told a
uniformed officer that he wanted to speak with Detective Saul
again. At Bone’s request, Detective Saul escorted Bone to the
interview room, where Saul again read the Miranda rights to
Bone. As he read each provision on the “Statement of Rights”
form, Detective Saul asked Bone if he understood that provision.
After Bone verbally indicated that he understood, Detective Saul
checked off each provision. Bone then signed the Statement of
Rights and a written Waiver of Rights, which provided above his
signature:
I have read the above statement of my rights and also
had my rights explained to me by a police officer.
Knowing these rights, I do not want a lawyer at this
time. I waive these rights knowingly and willingly and
agree to answer questions and/or make a statement.
J.A. 2347. After signing the form, Bone told Detective Saul
“[s]ome people need to be in prison,” and made a statement which
was written down by Detective Saul and signed by Bone. J.A.
2493. The statement read as follows:
This statement is given freely and I told Det. Saul I
wanted to talk to him after the warrant for murder had
been read to me. On Saturday 8-23-97 sometime after
dark I broke into an apartment. The reason I did this
was because I had been smoking crack. I was out of
money and needed some more to buy some more crack. I
was in Smith Homes during this time. I was walking
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behind some apts on Rockett St when I noticed a window
opened. I cut the screen with a pocket knife, then I
crawled in through the window. This led into the
kitchen. After I got in I looked around in the living
room and didn’t see anything. Then I saw a radio in
the kitchen on the counter. I laid it on the floor.
Then I walked into the bedroom and saw this white lady
in bed asleep. Right when I walked in the bedroom she
woke up and said what are you doing in here. I said I
just want money I'm not going to hurt you. She keep
saying what are you doing in here, I was afraid she
was going to start yelling so I ripped the curtain off
the wall and rolled her over on her stomach and tied
her hands behind her back then tied her feet. I had to
take the curtain rod out of the curtain before I did
this. She was still trying to get up and still I was
afraid someone was going to hear her so I put my hands
on her neck to try to hold her head down to keep her
quiet and so she would not look at me. Then I tied a
piece around her mouth for a gag. Then I saw her
pocketbook in the bedroom. I took it along with a
flashlight she had lying on her dresser into the
living room. I dumped out the pocketbook on the floor
and didn’t find anything. While I was doing this she
had been making funny noises. I went in and looked at
her and she was bleeding. Then I noticed that the
bedroom window could be looked through from the
outside. I took a white blanket off her bed and hung
up over the window so nobody could see in. When I left
I unplugged the phone and left out the back door
taking only her flashlight, I decided not to take the
radio. After I left there I went down to another apt.
The screen was already cut so I raised the window and
climbed in. This was in a bathroom. When I walked
around the apt I saw an old black man sleeping in a
chair in the living room. On a chair was a pair of
pants and inside the pants pocket was a wallet, I took
this into the bedroom and dumped everything out. There
was about 8 or 9 dollars and I took it and went out
the window I came in through. I walked through the
path to the Center and then all the way to
Shamberger’s Store on Eugene St. Then I bought a $5.00
rock and smoked it. Last month I told Paul Blackmon
that I might have killed somebody. Paul just looked at
me and didn’t say anything. In closing I would like to
say that I am deeply sorry and I know I’ve brought a
lot of grief on the family but I was on drugs when
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this happened and I wish I didn’t abuse the drugs like
I do. I’m not a bad person. In time I hope you can
find forgiveness. Signed Anthony Bone, R.W. Saul,
10/8/97 at 1500 hours.
J.A. 2732-33.
A jury in Guilford County, North Carolina convicted Bone of
the first-degree murder of Ethel McCracken and two counts of
first-degree burglary. Bone received a sentence of death plus
two consecutive terms of 146-185 months’ imprisonment, which was
later converted to a sentence of life after the North Carolina
courts determined Bone was mentally retarded under North
Carolina law. Bone also filed a motion for appropriate relief
(“MAR”) contending, among other things, that his trial counsel
failed adequately to investigate and present evidence that his
confession was obtained in violation of his Fifth Amendment
rights. Bone’s MAR, and a subsequent petition for review to the
state court of appeals, were denied.
In October 2004, Bone filed a § 2254 habeas petition in the
Middle District of North Carolina. After conducting an
evidentiary hearing, the district court denied Bone’s petition
and issued a certificate of appealability as to Bone’s claim
“that he did not knowingly and intelligently waive his Miranda
rights and that his trial counsel was ineffective in failing to
raise this issue in state court.” Bone appealed, and we have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1).
5
II
Where (as here) a petitioner’s claims are adjudicated on
the merits in state court, we may grant habeas relief only if
the state court adjudication “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.” 28 U.S.C. § 2254(d); Cummings v. Polk, 475
F.3d 230, 237 (4th Cir. 2007). But even if we so find, we may
only grant relief after “review[ing] [the] state court
judgment[] independently to determine whether issuance of a writ
is warranted.” Rose v. Lee, 252 F.3d 676, 689-90 (4th Cir.
2001).
In resolving Bone’s petition, we assume without deciding
that the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law. .
. .” 28 U.S.C. § 2254(d); see also Golphin v. Branker, 519 F.3d
168, 189-90 (4th Cir. 2008) (finding unnecessary to consider
whether the state court unreasonably applied federal law because
any error did not have a prejudicial effect); Bauberger v.
Haynes, 632 F.3d 100, 103 (4th Cir. 2011) (same; noting that by
doing so “we avoid wasting the parties’ and the courts’ limited
resources on ‘questions that have no effect on the outcome of
the case.’”) (quoting Pearson v. Callahan, 555 U.S. 223, 129 S.
Ct. 808, 818 (2009)). We therefore review the record de novo to
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determine whether issuance of the writ is warranted; that is,
whether Bone knowingly and intelligently waived his Miranda
rights. See Rose, 252 F.3d at 689-90.
III
To be valid, a waiver of Miranda rights must have been (i)
“voluntary in the sense that it was the product of free and
deliberate choice rather than intimidation, coercion, or
deception”; and (ii) “made with a full awareness of both the
nature of the right being abandoned and the consequences of the
decision to abandon it.” 2 Moran v. Burbine, 475 U.S. 412, 421
(1986). “Only if the ‘totality of the circumstances surrounding
the interrogation’ reveal both an uncoerced choice and the
requisite level of comprehension may a court properly conclude
that the Miranda rights have been waived.” United States v.
2
The district court’s certificate of appealability applies
only to Bone’s claims “that he did not knowingly and
intelligently waive his Miranda rights and that his trial
counsel was ineffective in failing to raise this issue in state
court.” We therefore limit our discussion to those issues, and
do not address whether Bone’s waiver was voluntary. See Appleby
v. Warden, 595 F.3d 532, 535 n.3 (4th Cir. 2010) (“[B]ecause
this court is empowered to consider only the specific issue or
issues set forth in the certificate of appealability, we will
not consider [additional] issues.”) (quoting United States v.
Linder, 561 F.3d 339, 344 n.6 (4th Cir. 2009) (internal
quotations omitted)).
7
Cristobal, 293 F.3d 134, 140 (4th Cir. 2002) (quoting Moran, 475
U.S. at 421).
When evaluating the totality of the circumstances for the
purposes of determining the validity of a Miranda waiver, we
consider factors such as a defendant’s “intelligence and
education,” his “age and familiarity with the criminal justice
system, the proximity of the waiver to the giving of the Miranda
warnings,” and whether he “reopened the dialogue with the
authorities.” Poyner v. Murray, 964 F.2d 1404, 1413 (4th Cir.
1992) (citations omitted). “In cases involving defendants with
low intellectual ability, the knowingness of the waiver often
turns on whether the defendant expressed an inability to
understand the rights as they were recited.” United States v.
Robinson, 404 F.3d 850, 861 (4th Cir. 2005). In such
circumstances, a defendant’s “below average I.Q. does not make
him per se incapable of intelligently waiving his rights.” Id.A
Bone argues he was incapable of knowingly and intelligently
waiving his Miranda rights due to his diminished mental
capacity. In support of his argument, Bone points out that he
has an I.Q. of 69; has established that he is mentally retarded
under North Carolina law; and that the state MAR court found
that he had “difficulties [] comprehending and expressing
8
information including [an] inability to give directions, [a]
need to have things explained to him repeatedly, [] poor
understanding of others, and [] limited reading and writing
skills.” J.A. 49. Additionally, Bone presents the affidavit of
Dr. Olley, previously submitted to the MAR court, which avers
Bone “demonstrated a very limited understanding of his Miranda
rights” when he was tested roughly four years after his waiver;
Bone’s confession was “written at a reading level at which Mr.
Bone would have difficulty understanding”; and “there are many
indicators that Mr. Bone in fact did not understand the waiver
of rights that was presented to him and that he signed.” J.A.
125, 127, 130.
The evidence presented by Bone, however, is eclipsed by the
evidence contemporaneous to his confession which indicates that
he knowingly and intelligently waived his Miranda rights. Bone
indicated he understood that he did not have to speak to police
when, during his first interaction with Detective Saul, he
denied involvement in the crime and refused to sign a waiver. He
initiated——without prompting——the second interview by asking an
officer if he could again speak with Detective Saul. Bone then
demonstrated his understanding of the consequences of the
decision to abandon his Miranda rights when he began the second
interview by saying “[s]ome people need to be in prison.” J.A.
2493. And, as Saul reviewed the Miranda rights with Bone prior
9
to questioning him, Bone acknowledged that he understood each
provision as it was read to him and then signed an
acknowledgement and waiver of his rights before confessing. 3
Given these circumstances, Bone’s I.Q. does not preclude a
determination that his Miranda waiver was valid. See Cornell v.
Thompson, 63 F.3d 1279, 1288 (4th Cir. 1995) (finding waiver
knowing, voluntary, and intelligent where a defendant with an
I.Q. of 68 had previous experiences with law enforcement and
received numerous Miranda warnings); Robinson, 404 F.3d at 861(“Although Robinson admittedly has a low I.Q. [70] and several
mental disorders, nothing in the record indicates that Robinson
could not understand the rights as Agent Hicks provided them.
To the contrary . . . Robinson was ‘street smart’ and understood
his Miranda rights.”).
It is thus clear from the record that Bone understood “that
he may choose not to talk . . ., to talk only with counsel
present, or to discontinue talking at any time.” Colorado v.
Spring, 479 U.S. 564, 574 (1987). In light of the totality of
the circumstances, Bone understood these fundamental concepts
3
In addition, Bone (1) had “familiarity with the criminal
justice system,” Poyner, 964 F.2d at 1413, demonstrated by his
two previous arrests and guilty pleas, J.A. 2773; and (2)
signaled his prior experience with the criminal justice system
when he refused to surrender his shoes to Detective Saul during
earlier questioning.
10
when he waived his Miranda rights; hence, his decision to waive
those rights was made both knowingly and intelligently.
B
To establish ineffective assistance of counsel under the
familiar standard of Strickland v. Washington, 466 U.S. 668(1984), a criminal defendant must show that his counsel’s
representation “‘fell below an objective standard of
reasonableness,’ and . . . that ‘the deficient performance
prejudiced the defense.’” United States v. Cooper, 617 F.3d 307,
312 (4th Cir. 2010) (citing Strickland, 466 U.S. at 687–88).
Where, as here, a Sixth Amendment claim rests on trial counsel’s
failure to move to suppress evidence, establishing actual
prejudice requires the petitioner to establish that the
underlying claim is meritorious and that there is a reasonable
probability that the verdict would have been different absent
the excludable evidence. See, e.g., United States v. Cieslowski,
410 F.3d 353, 360 (7th Cir. 2005) (“When the claim of
ineffective assistance is based on counsel’s failure to present
a motion to suppress, we have required that a defendant prove
the motion was meritorious.”); Kimmelman v. Morrison, 477 U.S.
365, 375 (1986) (“Where defense counsel’s failure to litigate a
Fourth Amendment claim competently is the principal allegation
of ineffectiveness, the defendant must also prove that his
11
Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been
different absent the excludable evidence.”).
Bone cannot establish prejudice under Strickland because,
as explained above, the Miranda issue which he contends should
have been presented at trial is without merit. Because Bone
fails to establish prejudice, it is not necessary for us to
analyze whether his trial counsel’s performance fell below an
objective standard of reasonableness. McHone v. Polk, 392 F.3d
691, 704 (4th Cir. 2004) (“If McHone fails to demonstrate
sufficient prejudice from certain acts or omissions, we need not
decide whether counsel’s performance in those respects was, in
fact, deficient under Strickland.” (citing Strickland, 466 U.S.
at 694)).
IV
For the foregoing reasons, we affirm the judgment of the
district court. 4
AFFIRMED
4
The Court wishes to express its appreciation to Mr. James
Donald Cowan for the very fine argument he gave on behalf of
appellant in this case.
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