Cotton v. Cain ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-30799
Summary Calendar
GREGORY WAYNE COTTON,
Petitioner-Appellant,
versus
BURL CAIN, Warden,
Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 97-CV-820-H
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May 28, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Gregory Cotton (Louisiana prisoner #119098) appeals the
district court’s judgment dismissing his 28 U.S.C. § 2254
petition with prejudice. Cotton has also filed a motion for the
appointment of counsel. Because the “interests of justice” do
not require the appointment of counsel in the instant case,
Cotton’s motion is DENIED. See Schwander v. Blackburn, 750 F.2d
494, 502-03 (5th Cir. 1985).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Cotton pleaded guilty to second-degree murder, reserving the
right to appeal three incriminating statements which the state
trial court refused to suppress. He now challenges the
constitutional validity of those statements, contending that they
were obtained in violation of his Fifth, Sixth, and Fourteenth
Amendment rights. The district court granted a certificate of
appealability (COA) on the following issue: “Whether the failure
to suppress Cotton’s confessions deprived him of his rights under
the Fourth, Fifth, and Fourteenth Amendments.” Cotton has waived
any Fourth Amendment claim by failing to brief it on appeal. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Moreover, Cotton’s Sixth Amendment claim is not before us on
appeal because the district court did not grant a COA on that
claim and because Cotton has not expressly requested that his COA
be broadened to encompass that claim. See Lackey v. Johnson, 116
F.3d 149, 151-52 (5th Cir. 1997); United States v. Kimler, 150
F.3d 429, 431 & n.1 (5th Cir. 1998). Thus, the only issue
properly before us on appeal is whether the three incriminating
statements were obtained in violation of Cotton’s Fifth and
Fourteenth Amendment rights.
Cotton’s chief complaint regarding his first statement is
that the police continued to question him after he purportedly
invoked his right to have counsel present during the custodial
interrogation. On direct appeal, the state appellate court
concluded that Cotton had not unequivocally invoked his right to
counsel. The court further concluded that Cotton’s interrogator,
Sergeant Mike Edwards, was entitled to ask follow-up questions to
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clarify whether Cotton wanted an attorney present and that
Cotton’s subsequent responses indicated that he did not want to
invoke his right to counsel at that time. The state appellate
court’s resolution of the issue was not contrary to, or an
unreasonable application of, clearly established federal law.
See 28 U.S.C. § 2254(d)(1); Barnes v. Johnson, 160 F.3d 218, 224-
25 (5th Cir. 1998), cert. denied, 1999 U.S. Lexis 3318 (U.S. May
17, 1999)(No. 98-8088).
Cotton also argues that he did not voluntarily waive his
right to counsel during his first statement because (1) he signed
the advice-of-rights form at 2:05 a.m., (2) the taped interview
did not commence until 2:31 a.m., (3) he informed Edwards that he
could not read, and (4) a psychiatrist who had examined him for
his competency evaluation had opined that he had limited
intellectual abilities and probable mild mental retardation. He
further maintains that his first statement was involuntary as a
result of those same factors.
Both the state trial court and the state appellate court
determined that Cotton had knowingly waived the rights of which
he was advised. Cotton has not presented clear and convincing
evidence to rebut the state-court findings, which are presumed to
be correct. See 28 U.S.C. § 2254(e)(1); Kelly v. Lynaugh, 862
F.2d 1126, 1131 (5th Cir. 1988). Cotton’s contention that his
statement was involuntary as a result of those same factors is
likewise without merit. He “has presented no evidence of
coercive tactics by the police or evidence that his confession
was not made intelligently because of his limited intellectual
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capacities.” See Jones v. Johnson, 171 F.3d 270, 278 & n.31 (5th
Cir. 1999).
Cotton contends that his second and third statements were
obtained in violation of his Fifth Amendment rights because the
police initiated further questioning after he had invoked his
right to counsel during the first statement. He further contends
that his second and third statements should have been suppressed
as fruit of the poisonous tree. Cotton’s contentions are without
merit. As previously discussed, Cotton did not invoke his right
to counsel during the first statement. Thus, the police were not
prohibited from initiating further questioning. Cf. Minnick v.
Mississippi, 498 U.S. 146, 153 (1990)(“[W]hen counsel is
requested, interrogation must cease, and officials may not
reinitiate interrogation without counsel present, whether or not
the accused has consulted with his attorney.”). Moreover,
because Cotton has not shown that his first statement was
constitutionally invalid, he has not shown that his second and
third statements should have been suppressed as fruit of the
poisonous tree. See Colorado v. Spring, 479 U.S. 564, 571-72
(1987)(“A confession cannot be ‘fruit of the poisonous tree’ if
the tree itself is not poisonous.”).
Finally, Cotton argues that his second and third statements
were involuntary because he made those statements based upon
unfulfilled promises by the police that they would help him on
any forthcoming charges. The state trial court found that no
promises had been made by the police to obtain Cotton’s
statements. The state appellate court agreed that the police had
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made no promises to induce Cotton’s statements, noting that
Sergeant Edwards agreed only to “make unspecified recommendations
to the district attorney based on what [Cotton] told him.” The
state-court findings were not unreasonable in light of the
evidence presented and are therefore entitled to a presumption of
correctness. See 28 U.S.C. § 2254(d)(2), (e)(1). Cotton has not
presented clear and convincing evidence to rebut that
presumption. See 28 U.S.C. § 2254(e)(1).
Cotton’s three incriminating statements were not obtained in
violation of his Fifth or Fourteenth Amendment rights.
Accordingly, the district court’s judgment is AFFIRMED.
MOTION DENIED; AFFIRMED.