Hebert v. Cain

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 24, 2005
Charles R. Fulbruge III
Clerk
No. 03-31158
Mitchell Hebert,
Petitioner-Appellant,
versus
Burl Cain, Warden, Louisiana State Penitentiary,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
02-CV-1271
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Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
*
FORTUNATO P. BENAVIDES, Circuit Judge:
In this appeal, Mitchell Hebert challenges the district
court’s denial of his habeas corpus petition. For the reasons
that follow, we affirm.
I. Background
Petitioner-Appellant Hebert and friend Shawn Gaspard
brutally murdered Gerald Green, the manager of the Green Oaks
*
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that this opinion should not be published and is not precedent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.
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Lounge in Lafayette, Louisiana. Police arrested Gaspard on
October 2, 1992, and asked his apartment-mate, Hebert, if he
would come to the police station for questioning. During the
arrest, Gaspard’s neighbor gave police a bag of clothes she said
Gaspard gave to her.
Around 2:30 p.m., after he explained Hebert’s Fifth
Amendment rights and had him sign a consent form, Detective Kelly
Gibson began questioning Hebert. Hebert began by providing an
alibi, but “became visibly shaken and nervous” when asked about
the bag of clothes. He responded by declaring, “I don’t want to
talk about it.” Gibson asked him why he did not want to discuss
the clothes and Hebert replied, “I just don’t want to talk about
it.” Once again, Gibson questioned Hebert on his refusal by
asking, “Why don’t you want to talk about this?” And, again,
Hebert repeated, “I don’t want to talk about it.” At this point,
or shortly thereafter, Gibson took Hebert’s shoes. Gibson left
the interrogation room to brief Detective Ted Vincent on what
Hebert had said. Vincent then began questioning Hebert. Hebert
was once again apprised of his Miranda rights and did not tell
Vincent at any time that he did not want to speak with him.
During questioning, Vincent “probably” mentioned that this
was a capital case and cooperation would likely spare Hebert the
death penalty if Gaspard did the actual killing. Vincent spoke
with Hebert for almost three hours, including food and cigarette
2
breaks, before Hebert began to confess. Around 7:00 p.m.,
Hebert’s full confession was videotaped.
On April 21, 1997, a jury in state court found Hebert guilty
of first-degree murder. See State v. Hebert, 716 So. 2d 63, 64
(La. Ct. App. 1998). The court sentenced Hebert to life
imprisonment without parole. Id. Before trial, Hebert litigated
a number of pre-trial motions, including, inter alia, a motion to
suppress his confession. See id. at 67-68. The Court of Appeal
of Louisiana rejected Hebert’s contention that his confession was
taken in violation of the Fifth Amendment.1 See State v. Hebert,
676 So. 2d 692, 700 (La. Ct. App. 1996). After Hebert’s
conviction, the state appellate court reviewed this finding and
concluded it was not in error. See Hebert, 716 So. 2d at 68. It
affirmed Hebert’s conviction in June 1998. Id. at 69.
In August 1999, Hebert filed an application for post-
conviction relief, arguing, inter alia, that his Fifth Amendment
rights had been violated. Louisiana’s 15th Judicial District
Court rejected Hebert’s application. Subsequent appeals to the
Court of Appeal and the Louisiana Supreme Court were also denied.
In June 2002, Hebert filed pro se habeas corpus petitions
under 28 U.S.C. § 2254 in the U.S. District Court for the Western
1
The Fifth Amendment reads, in relevant part: “No person . .
. shall be compelled in any criminal case to be a witness against
himself.” U.S. CONST. amend. V.
3
District of Louisiana. He asserted once again, inter alia, that
his confession was coerced. The district court denied the
petition and Hebert filed an application for a certificate of
appealability (“COA”) with the district court on December 8,
2003. The application was denied. On March 30, 2003, this Court
denied Hebert’s application for a COA as to all claims except for
the Fifth Amendment issue, for which this Court granted a COA.
II. Standard of Review
“In reviewing a ruling on the merits of a habeas claim, the
district court’s findings of fact are reviewed for clear error;
its conclusions of law, de novo.” Schaetzle v. Cockrell, 343
F.3d 440, 443 (5th Cir. 2003). The Antiterrorism and Effective
Death Penalty Act of 1996, 28 U.S.C. § 2254, supplies the proper
standards for reviewing the state court ruling. See Jones v.
Dretke, 375 F.3d 352, 353-54 (5th Cir. 2004). As to legal
issues, the statute provides that the habeas corpus petition
should not be granted unless the state court’s 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)(1). “The state court’s application of the law must be
‘unreasonable’ in addition to being merely ‘incorrect.’”
Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000) (citing
Williams v. Taylor, 529 U.S. 362, 410 (2000)). “Stated simply, a
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federal habeas court making the ‘unreasonable application’
inquiry should ask whether the state court’s application of
clearly established federal law was objectively unreasonable.”
Williams, 529 U.S. at 409.
When dealing with factual issues, the habeas petition should
not be granted unless the state court’s “decision . . . 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)(2). “[A] determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); see also
Patterson v. Dretke, 370 F.3d 480, 484 (5th Cir. 2004).
Therefore, “[t]o establish that habeas relief is warranted on the
§ 2254(d)(2) ground that the state court’s decision was based on
an ‘unreasonable determination of the facts . . . ,’ a petitioner
must rebut by clear and convincing evidence the § 2254(e)(1)
presumption that a state court’s factual findings are correct.”
Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002). In
addition, the petitioner must show that the mistaken factual
determination constituted the basis for the state court’s
decision at issue. See Wiggins v. Smith, 539 U.S. 510, 551-52
(2003) (Scalia, J., dissenting).
III. Discussion
5
Hebert’s Fifth Amendment claim is governed by the Supreme
Court’s interpretation of Miranda v. Arizona, 384 U.S. 436
(1966), in Michigan v. Mosley, 423 U.S. 96 (1975). The Miranda
Court stated that if the person being interrogated “indicates in
any manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease.” 384 U.S.
at 473-74. The Mosley Court developed the contours of this
right, holding “that the admissibility of statements obtained
after the person in custody has decided to remain silent depends
under Miranda on whether his ‘right to cut off questioning’ was
‘scrupulously honored.’” 423 U.S. at 104.
Rather than issuing a bright-line rule for determining when
police were scrupulous in honoring suspects’ rights, the Court
examined a number of operative facts, all present in Mosley. See
id. at 104-06. The Court indicated that it found four factors
particularly probative: (1) whether police immediately ceased
initial interrogation upon the suspect’s request; (2) whether
questioning was resumed after a “significant period of time,”
e.g., “an interval of more than two hours”; (3) whether a “fresh
set of warnings” was provided; and (4) whether the topic of the
second interrogation was a different crime. See id. at 105-06.
We have read Mosley to include a fifth factor, implicit in the
third, that “the suspect was advised prior to initial
interrogation that he was under no obligation to answer
6
question[s].”2 United States v. Alvarado-Saldivar, 62 F.3d 697,
699 (5th Cir. 1995).
It does not appear that any single factor is dispositive,
though. See, e.g., Kelly v. Lynaugh, 862 F.2d 1126, 1131 (5th
Cir. 1988) (stating that “it is not decisive that the
interrogations covered the same crime”). Rather, a case-by-case
analysis of police conduct is required, Wilcher v. Hargett, 978
F.2d 872, 877 (5th Cir. 1992), although this can sometimes
“produce opposite results in cases that are similar in some
respects.” Charles v. Smith, 894 F.2d 718, 726 (5th Cir. 1990).
A. Unreasonable Determination of Facts
Bearing in mind the factual issues found probative by the
Mosley Court, we examine the trial court’s findings of fact to
determine whether any constitute an “unreasonable determination .
. . in light of the evidence.” 28 U.S.C. § 2254(d)(2). Hebert
argues that the state court unreasonably found facts that allowed
it to conclude that “the second interrogation was initiated by
Detective Vincent approximately one to one and one-half hours
after defendant told Detective Gibson he did not want to talk
2
As Mosley does not do so explicitly, different courts have
enunciated different factors when reading the Court’s opinion.
See, e.g., Anderson v. Calderon, 232 F.3d 1053, 1066 (9th Cir.
2000) (finding five factors, including “[a] different officer
resumed the questioning”); Evans v. Rogerson, 77 F. Supp. 2d
1014, 1031 (S.D. Iowa 1999) (identifying nine factors cited by
the Mosley Court); People v. Fleming, 431 N.E.2d 16, 18 (Ill.
App. Ct. 1981) (noting only three factors as central to the
Mosley analysis).
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about the shopping bag full of new clothes.” State v. Hebert,
676 So. 2d at 692, 699 (La. Ct. App. 1996). We agree that this
is clearly in error. The record does not show such a significant
time lapse between interrogations.
However, in order to grant a habeas petition on the grounds
of an unreasonable factual determination, it must be shown that
this error constituted the basis for the court’s decision. 28
U.S.C. § 2254(d)(2) (requiring that the state court’s decision
was “based on an unreasonable determination of the facts”
(emphasis added)). A reading of the Court of Appeal of
Louisiana decision finding no Miranda violation shows that the
court did not base its decision on its clearly erroneous factual
conclusion. See Hebert, 676 So. 2d at 699-700.
When analyzing Hebert’s Mosley claim, the court acknowledged
that one of the “[o]ther” Mosley factors to be considered is “the
time delay between the original request and subsequent
interrogation.” Id. at 699 (internal quotations omitted) (citing
State v. Brooks, 505 So. 2d 714, 722 (La. 1987); State v. Harper,
430 So. 2d 627, 633 (La. 1983)). However, the court stressed
that the central inquiry hinges “‘on the totality of the
circumstances involved under the particular facts of each case.’”
Id. (citing Brooks, 505 So. 2d at 722). And, although the court
stated in its recitation of the facts that “approximately one to
one and one-half hours” passed between the two interrogations, at
8
no point did it indicate that this factor proved dispositive.
See id. at 699. Indeed, the issue of time is never mentioned in
the analytic portion of the Mosley discussion. See id. at 700.
Further, the court relied on cases applying Mosley that did not
feature significant time intervals between interrogations. See
id. (discussing facts of State v. Daniel, 378 So. 2d 1361 (La.
1979), and State v. Taylor, 490 So. 2d 459 (La. Ct. App. 1986)).
When applying facts to law to find no violation of Mosley’s
“scrupulously honoring” dictate, the state court focused on the
voluntariness of the confession, the lack of “browbeating,” and
the reiterations of Hebert’s Miranda rights:
In the present case, it is apparent that Detective
Vincent was not browbeating Hebert hoping to wear him
down to get him to confess; instead, it appears that the
detective first wanted to inform Hebert what evidence he
had indicating that he and Gaspard may have been involved
in the robbery and murder. Since Hebert was again
informed of his Miranda rights, and the detective went
over the rights form Hebert signed previously with
Detective Gibson, Hebert’s decision to change his mind
and again waive his rights and speak with Detective
Vincent was voluntary and intelligent and not the product
of police misconduct.
Hebert, 676 So. 2d at 700. Clearly, the time interval between
Hebert’s refusal to talk and Vincent’s subsequent interrogation
was not considered as a significant factor by the state court
when it performed its Mosley analysis. Therefore, the clearly
erroneous finding of fact did not provide the basis for the
court’s decision. Accordingly, we deny Hebert’s habeas petition
9
under 28 U.S.C. § 2254(d)(2).
B. Unreasonable Application of Law
Hebert also asks us to grant the habeas petition under 28
U.S.C. § 2254(d)(1) because of an unreasonable application of
law. We look at the state court’s decision to see if it
unreasonably applied Mosley to the facts of Hebert’s case. See
Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).
The Mosley factors do not provide a clear outcome based on
the facts of this case. The record does give us pause in that a
reasonable court could have concluded that Hebert’s rights were
in fact violated. “However, ‘an unreasonable application of
federal law is different from an incorrect application of federal
law.’” Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004)
(citing Williams v. Taylor, 529 U.S. 362, 410 (2000)) (emphasis
in original). As the above review of the Louisiana opinion
showed, the state court did consider the Mosley factors,
apparently reasoning that the specific facts of this case, in
particular the repeated Miranda warnings and patent lack of
actual coercion, satisfied the Supreme Court’s guidelines,
regardless of the time interval. We are not persuaded that the
state court’s finding, based on an application of the holistic,
case-by-case Mosley test, is objectively unreasonable. See
Williams, 529 U.S. at 409. We thus deny Hebert’s habeas petition
under 28 U.S.C. § 2254(d)(1).
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For the foregoing reasons, we AFFIRM the decision of the
district court.
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