Jerry Smith v. Richard Kirkland ( 2010 )

FILED
NOT FOR PUBLICATION DEC 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JERRY MICHAEL SMITH, No. 10-15009
Petitioner - Appellant, D.C. No. 2:06-cv-01762-RCT
v.
MEMORANDUM *
RICHARD KIRKLAND; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Richard C. Tallman, Circuit Judge, Presiding
Argued and Submitted December 8, 2010
San Francisco, California
Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.
Petitioner Jerry Michael Smith was convicted of first degree murder by
means of lying in wait, with a firearm enhancement, in California Superior Court.
Before trial, Smith moved to suppress his confession as involuntary and in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1996). The court
held an evidentiary hearing and denied Smith’s motion. The California Court of
Appeal affirmed the superior court’s judgement that the confession was voluntary.
In a 28 U.S.C. § 2254 petition for a writ of habeas corpus, Smith argued that the
state courts erred in finding his confession voluntary. The district court denied
Smith’s petition. We affirm.
This court reviews de novo a district court’s decision to grant or deny a
habeas corpus petition under 28 U.S.C. § 2254. Yee v. Duncan, 463 F.3d 893, 897
(9th Cir. 2006). Because the Anti-Terrorism and Effective Death Penalty Act
applies, this court may grant relief only if the state court’s adjudication of the
merits of the case “(1) 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; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
Smith argues that his confession was involuntary because police officers
engaged in an impermissible two-step interrogation under Missouri v. Seibert, 542
U.S. 600 (2004) and because he was coerced.
1. Two-step interrogation claim
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The “two-step interrogation strategy, termed ‘question first’ . . . called for
the deliberate with-holding of the Miranda warning until the suspect confessed,
followed by a Miranda warning and a repetition of the confession already given.”
United States v. Williams, 435 F.3d 1148, 1154 (9th Cir. 2006) (citing Seibert, 542
U.S. at 604, 609-11 (Souter, J., plurality opinion)). This argument fails because
the California Court of Appeal’s conclusion that Smith did not confess until after
hearing and waiving his Miranda rights is not an unreasonable determination of the
facts. Smith neither divulged incriminating evidence nor made inculpatory
admissions prior to the invocation of his rights.
2. Coercion claim
In support of his coercion claim, Smith asserts that police officers (1)
deliberately violated Miranda by ignoring his requests for counsel, and (2)
promised leniency for his wife in exchange for a confession.
Once a suspects invokes his right to counsel, questioning must cease and
may not resume in the absence of counsel unless the suspect initiates further
discussions. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). However, the
request must be unambiguous and clear such “that a reasonable police officer in the
circumstances would understand the statement to be a request for an attorney.”
Davis v. United States, 512 U.S. 452, 459 (1994). “If the statement fails to meet
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the requisite level of clarity, Edwards does not require that the officers stop
questioning the suspect.” Id. While Smith mentioned an attorney several times
before the officers ended his interrogation, we cannot say that the California Court
of Appeal unreasonably applied clearly established federal law when it determined
that his statements were not unambiguous requests for counsel.
Law enforcement may not extract a confession “by any sort of threats or
violence, [or] obtained by any direct or implied promises, however slight, [or] by
the exertion of any improper influence.” Hutto v. Ross, 429 U.S. 28, 30 (1976)
(quoting Bram v. United States, 168 U.S. 532, 542-43 (1897). However,
“speculation that cooperation will benefit the defendant or even promises to
recommend leniency are not sufficiently compelling to overbear a defendant’s
will.” United States v. Harrison, 34 F.3d 886, 891 (9th Cir. 1994). To support his
coercion claim, Smith relies on Lynumn v. Illinois, 372 U.S. 528, 533 (1963). This
case, however, is distinguishable from Lynumn because it was Smith who initiated
the conversation about his wife and it was his idea to bargain for leniency. Thus,
the California Court of Appeal’s conclusion that Smith was not coerced into
confessing is not contrary to clearly established federal law.
AFFIRMED.
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