Lawrence Coleman v. Marcus Hardy

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1437
L AWRENCE C OLEMAN,
Petitioner-Appellant,
v.
M ARCUS H ARDY,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-00184—Rebecca R. Pallmeyer, Judge.
A RGUED A PRIL 3, 2012—D ECIDED A UGUST 3, 2012
Before B AUER, P OSNER and K ANNE, Circuit Judges.
B AUER, Circuit Judge. The petitioner-appellant, Lawrence
Coleman, was convicted of murder in Illinois and sen-
tenced to 28 years in prison. Coleman was denied relief
in state court and eventually filed a federal habeas
petition in district court under 28 U.S.C. § 2254. The
district court also denied relief; we granted a certificate
of appealability. For the following reasons, we affirm
the denial of the habeas petition.
2 No. 10-1437
I. BACKGROUND
This case arises from a murder that took place on No-
vember 30, 1998. Early that morning, a group of men
affiliated with a gang known as the Renegade Vice Lords
gathered outside of Jacqueline Brenaugh’s apartment
on the South Side of Chicago. The men believed that
Jamil Caraway, a member of a rival gang, was hiding out
in her apartment, and they meant to kill him. Instead,
they shot and killed Jacqueline Brenaugh, when she
peered out of her apartment window to get a better look
at the men outside.
Detective Philip Graziano of the Chicago Police Depart-
ment was assigned to the case. After some investigation,
he zeroed in on Lawrence Coleman as a suspect. At
about 11:30 a.m. on December 12, Detective Graziano
arrested Coleman and began an interrogation. By mid-
night, Graziano had elicited a confession from Coleman;
specifically, Coleman admitted serving as an accomplice
in Brenaugh’s murder. Graziano called on Assistant
State’s Attorney Nancy Nazarian to assist him in re-
cording the confession. She arrived at the police station
sometime around midnight of December 13, and about
four hours later, a court reporter recorded Coleman’s
full confession.
Coleman subsequently was indicted, pleaded not guilty,
and moved to suppress his confession. Central to the
motion to suppress was Coleman’s claim that he had
invoked his right to an attorney several times and
that the police had proceeded in violation of Miranda v.
Arizona. The parties offered conflicting testimony on this
No. 10-1437 3
issue at the suppression hearing; the court denied
Coleman’s motion, holding that “the credibility is
resolved on behalf of the State.” At trial, a jury found
Coleman guilty of first-degree murder under an accom-
plice liability theory. He was sentenced to 28 years in
prison.
Coleman appealed his conviction in state court,
arguing, among other things, that the trial court had
improperly refused to suppress his confession. He in-
cluded an affidavit from his attorney, David Wiener,
stating that Wiener had called the police station
during the December 12 interrogation and requested
that police cease questioning his client. The Illinois ap-
pellate court concluded that the suppression question
came down to a credibility determination, and that the
trial court had properly exercised its discretion in
crediting the State’s witnesses over Coleman. State of
Illinois v. Coleman, No. 1-00-4022 (Ill. App. Ct. Sept. 27,
2002). The court affirmed Coleman’s conviction.
Coleman has mounted several challenges to his con-
viction over the course of many years, so a short sum-
mary of the current procedural posture is in order.
After exhausting his state post-conviction remedies,
Coleman filed a pro se habeas petition in federal court
pursuant to 28 U.S.C. § 2254. The district court denied
relief, see U.S. ex rel. Coleman v. Shaw, No. 06C184, 2009
WL 1904370 (N.D. Ill. July 1, 2009), and Coleman re-
sponded by filing a motion to reconsider, plus several
other motions. The district court consolidated the
motions as a Rule 60(b) request for relief, considered
4 No. 10-1437
each of Coleman’s arguments on the merits, and rejected
each one; the court then denied him a certificate of
appealability. Coleman appealed to this Court; after
reviewing the record, we granted a certificate of ap-
pealability, but limited to the following issue: “whether
the state courts reasonably determined that Coleman
did not request counsel when he was arrested or
during the 17 hours he was in custody before giving a
statement and, thus, whether Coleman’s statement
was admissible at trial.” This is now the sole issue
before us on appeal.
II. DISCUSSION
A. Habeas Standards of Review
We review a district court’s denial of habeas relief
de novo. Northern v. Boatwright, 594 F.3d 555, 559 (7th Cir.
2010). Our review of state court decisions, however, is
limited by the Antiterrorism and Effective Death Penalty
Act (AEDPA). Thus, when we are dealing with a state
court’s determination on the merits, we may only grant
habeas relief if the decision “was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law,” or “was based on an unreasonable
determination of the facts in light of the evidence pre-
sented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)-(2); see also Harrington v. Richter, 131 S. Ct. 770,
783-84 (2011). The relevant decision that we review
under AEDPA is always the decision of the last state
No. 10-1437 5
court to rule on the merits of the petitioner’s claims.1
McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011).
A state court decision is “contrary to” federal law when
it “contradicts the governing law set forth in [Supreme
Court] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000).
A state court decision involves an “unreasonable ap-
plication of . . . clearly established federal law” when
the state court “identifies the correct governing legal
rule from [Supreme Court] cases but unreasonably
applies it to the facts of the particular state prisoner’s
case.” 2 Id. at 407.
Alternatively, a state court decision involves “an unrea-
sonable determination of the facts” under § 2254(d)(2)
only when the state court makes an “unreasonable er-
ror.” Morgan v. Hardy, 662 F.3d 790, 798 (7th Cir. 2011).
We give great deference to state court factual findings.
1
In this case, that is the Illinois appellate court’s decision from
Coleman’s direct appeal of his conviction. The state courts
that subsequently denied Coleman collateral relief never
discussed the merits of his Miranda claim.
2
Williams v. Taylor also explains that a state court decision
will contain an “unreasonable application” of clearly established
federal law when the state court “either unreasonably extends
a legal principle from [Supreme Court] precedent to a new
context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should
apply.” Williams, 529 U.S. 362, 407 (2000). However, Coleman
does not argue for the extension or non-extension of any
Supreme Court precedent in his Miranda claim.
6 No. 10-1437
After AEDPA, we are required to presume a state
court’s account of the facts correct, and the petitioner
has “the burden of rebutting the presumption of correct-
ness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005).
B. “Contrary to” or an “Unreasonable Application”
of Federal Law Under Section 2254(d)(1)
We begin by identifying the clearly established federal
law at issue here: Miranda v. Arizona and its progeny.
Miranda, 384 U.S. 436 (1966).
Once an accused is read his Miranda rights, he may
invoke his right to counsel under the Fifth and Fourteenth
Amendments by requesting an attorney, and the police
must immediately cease the interrogation until counsel
is present. Edwards v. Arizona, 451 U.S. 477, 481-82 (1981).
Any waiver of the Miranda right to counsel must be
voluntary, knowing, and intelligent. Id. at 482. To be
voluntary, the waiver must simply be non-coerced; to
be knowing and intelligent, waiver must be made with
“a full awareness of both the nature of the right being
abandoned and the consequences of the decision to
abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).
Finally, a court may only conclude that a suspect
waived his Miranda rights if the “ ‘totality of the circum-
stances surrounding the interrogation’ reveal both an
uncoerced choice and the requisite level of comprehen-
sion.” Id. (quoting Fare v. Michael C., 442 U.S. 707, 724-25
(1979)).
No. 10-1437 7
Coleman is never clear as to whether he is arguing that
his state conviction was “contrary to” or represents an
“unreasonable application” of clearly established federal
law. Although there are separate standards associated
with each of these prongs under § 2254(d)(1), he uses
them interchangeably throughout his argument. We
will discuss first whether the state court decision was
“contrary to” federal law.
Coleman’s primary argument under § 2254(d)(1) is that
the state appellate court ran afoul of Edwards v. Arizona
in its analysis. Edwards does indeed contain the relevant
standard, but the Illinois appellate court correctly identi-
fied that standard in its decision. The state court was
careful to explain that any waiver of the right to coun-
sel must be “voluntary, knowing, and intelligent,” and
it found that Coleman’s waiver met that standard. The
court went on to explain that in determining whether
waiver is knowing and intelligent, the court must
consider the totality of the circumstances. This is also
correct and in accord with Edwards and Moran v.
Burbine. Because the state appellate court identified
the correct legal standards, we now turn to whether it
applied those standards reasonably under the “unreason-
able application” clause. See Etherly v. Davis, 619 F.3d 654,
661 (7th Cir. 2010) (analyzing the “contrary to” and
“unreasonable application” clauses in a similar fashion).
We first highlight an important distinction between
Edwards and this case; in Edwards, the defendant was
arrested and requested counsel during his initial inter-
rogation. The police ceased questioning, but then failed
8 No. 10-1437
to provide him with counsel and resumed ques-
tioning the next day. Eventually the defendant re-
lented during interrogation and confessed to a crime.
The Supreme Court held that the defendant had not
“knowingly and intelligently” waived his right to
counsel when interrogation resumed on the second day.
Coleman admits but downplays the crucial difference
here: In Edwards, there was no question (as there is
here) about whether the defendant had initially invoked
his right to counsel. Instead, the question in Edwards
was whether the defendant subsequently waived the
right after invoking it. This is a key element in the
Supreme Court’s decision. It makes sense, of course;
after unequivocally invoking his right to counsel, the
defendant’s sudden confession during interrogation
without counsel on the very next day raises a suspicion
that any “waiver” made was not altogether knowing
and intelligent. And the decision stresses this important
distinction throughout: the lower courts had misunder-
stood the proper standard for finding “a valid waiver
of the right to counsel, once invoked.” Edwards, 451 U.S. at
484 (emphasis added). It is inconsistent with Miranda,
Edwards held, for authorities to resume interrogation
once a defendant in custody “has clearly asserted his
right to counsel.” Id. at 485. And the Court reaffirmed the
rule of North Carolina v. Butler that “after initially being
advised of his Miranda rights, the accused may himself
validly waive his rights and respond to interrogation.”
Id. at 484. Only when the accused requests counsel are
any “additional safeguards” necessary. Id.No. 10-1437 9
In this case, Coleman was properly read his Miranda
rights, and no state court found that he ever invoked his
right to counsel. Because it was never invoked, there
was also nothing in federal law (in Edwards or otherwise)
preventing Coleman from implicitly waiving his right
to counsel simply by responding to police questioning
and eventually confessing.
Coleman counters that under Edwards, courts are re-
quired to examine the waiver of the right to counsel by
considering the totality of the circumstances, and he
insists that the Illinois appellate court failed to do so.
This argument is difficult to grasp. In its review of the
trial court’s denial of the motion to suppress Coleman’s
confession, the appellate court stated that “[i]n deter-
mining whether this waiver is knowing and intelligent,
a court considers the totality of the circumstances, in-
cluding the characteristics of the defendant and the
details of the interrogation.” And indeed, the court con-
sidered a variety of factors in reviewing the waiver ques-
tion, including but not limited to: (1) Coleman’s claims
that he did request counsel; (2) Coleman’s claim that
he spoke to his attorney prior to his arrest and the
phone record corroborating this; (3) Detective Graziano’s
and Assistant State’s Attorney Nazarian’s claims that
Coleman never requested counsel at any point during
interrogation; and (4) evidence that Coleman’s attorney
contacted the police station during Coleman’s time
in custody.
Still, according to Coleman, the state court’s “choice of
words” proves that it was not reviewing waiver under
10 No. 10-1437
the totality of the circumstances—words like “dispositive”
and phrases like “that fact alone.” Coleman cites no
authority, and we are aware of none, that requires a court
to use magic words in order to properly constitute an
analysis under the totality of the circumstances. We
simply look to the substance of the analysis to see if the
court was weighing all (the “totality”) of the relevant
facts (the “circumstances”) in reaching its decision. The
state court’s refusal to find certain issues “dispositive,”
such as evidence that Coleman phoned his attorney
before his arrest, only demonstrates that the court con-
sidered that factor but refused to assign it great weight.
In Etherly v. Davis, a case involving review of the
totality of the circumstances surrounding a juvenile’s
waiver of the right to counsel, we acknowledged that
“how much weight to assign each factor . . . may differ
from court to court, and reasonable jurists may cer-
tainly disagree.” Etherly, 619 F.3d 654, 662 (7th Cir. 2010)
(citing Hall v. Washington, 106 F.3d 742, 748-49 (7th
Cir. 1997)). Coleman believes Etherly supports his argu-
ment, but in fact it cuts against him; we reversed a
district court’s grant of habeas relief in that case be-
cause the court had exceeded its authority under AEDPA
to re-weigh factors properly weighed by the state court
in upholding a conviction. The state court’s decision,
we held, was not an unreasonable application of federal
law and so could not be upset by the district court
on habeas review.
Even assuming that the state court in this case could
have written a clearer opinion, an inarticulate decision
No. 10-1437 11
is not enough for Coleman to obtain habeas relief. For
relief to follow under § 2254(d)(1), the state court must
have applied federal law unreasonably, and that is a far
cry from what happened here. We will not require a
particular choice of words when a court is evaluating
the totality of the circumstances surrounding the waiver
of the right to counsel. In this case, the state court an-
nounced the correct legal standard and proceeded to
weigh all the relevant factors in a reasonable fashion.
Federal law required nothing more.
Because the state court applied the correct federal law
and did so reasonably, Coleman’s claim under 28 U.S.C.
§ 2254(d)(1) fails.
C. “Unreasonable Determination of the Facts” Under
Section 2254(d)(2)
Coleman argues that the state court made “an unreason-
able determination of the facts” under § 2254(d)(2) in
denying his Miranda claim. Specifically, he argues that it
was unreasonable for the state trial court to credit the
State’s witnesses over his own. He further argues that,
especially in light of new affidavits he presented in his
state petition for post-conviction relief, he now has
ample evidence to rebut the state court’s factual deter-
minations.
First, we reiterate that after AEDPA, state court
factual findings are presumed correct on habeas review
and may only be rebutted by “clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1); see also Miller-El v.
12 No. 10-1437
Dretke, 545 U.S. 231, 240 (2005) (noting that “[t]he
standard is demanding but not insatiable”). Coleman
faces an even greater uphill battle in a case like this,
where the credibility of witnesses is at the heart of
the challenge. Credibility determinations made in the
trial court are notoriously difficult to overturn under
§ 2254(d)(2). See Rice v. Collins, 546 U.S. 333, 341-42 (2006)
(“Reasonable minds reviewing the record might disagree
about the prosecutor’s credibility, but on habeas review
that does not suffice to supersede the trial court’s credi-
bility determination.”); Morgan v. Hardy, 662 F.3d 790,
799 (showing deference to state trial court’s credibility
determinations under § 2254(d)(2)).
The state appellate court acknowledged evidence
that Coleman called (but did not reach) his attorney
around 7:00 a.m. on December 12 when he realized the
police were searching for him; this would have
occurred hours prior to his arrest and so could not im-
plicate his right to counsel. The state court also noted
that Coleman’s attorney called the police station during
his interrogation. The law is clear, and Coleman does
not dispute, that an attorney cannot invoke his client’s
right to counsel under Miranda. See Moran v. Burbine, 475
U.S. 412, 424-28 (1986). At best, this all amounts to
evidence that Coleman wished to reach his attorney.
The trial court simply found Graziano’s and Nazarian’s
testimony more credible than Coleman’s, and believed
that it outweighed any countervailing evidence. The
appellate court agreed, and we have no clear and con-
vincing evidence before us to suggest that this deter-
mination of facts is unreasonable.
No. 10-1437 13
Coleman challenges one of the state trial court’s factual
determinations in particular. He argues that the court
erroneously lent a corroborative effect to Nazarian’s
testimony in order to credit Graziano’s story. The court
relied on this corroboration, Coleman argues, when it
denied his motion to suppress. Our own reading of
the state trial court’s transcript does not reveal any prob-
lem with Nazarian’s testimony or its corroborative effect.
Graziano was present with Coleman for a much
longer period of time than Nazarian. But both Graziano
and Nazarian were present with Coleman from roughly
12:00 a.m. on December 13 to 4:00 a.m. that same
morning when Coleman’s confession was recorded.
During that four-hour period, Coleman claimed at trial,
he was still asking for an attorney (for example, he
claimed he asked for counsel just before the court
reporter showed up at 4:00 a.m.). So when Nazarian
testified at the suppression hearing that Coleman never
asked for an attorney, she was presumably referring
to the four-hour time period during which she and
Graziano were both present. There is nothing in the
transcript to indicate that the court believed Nazarian
meant to corroborate Graziano’s account of events from
earlier in the night before she arrived on the scene.
Finally, Coleman relies on affidavits produced for the
first time in his state petitions for post-conviction relief
to argue the state court clearly erred in its credibility
determination. These affidavits were prepared years
after the crime occurred by his uncle and his former
girlfriend, who both claim they overheard Coleman
14 No. 10-1437
asking to speak to an attorney when the police initially
approached him. The argument about the affidavits
was only presented to the state courts and to the federal
district court in the context of Coleman’s ineffective
assistance of counsel argument. Specifically, he used the
affidavits to argue that his counsel at the suppres-
sion hearing was ineffective for not calling his uncle
and his ex-girlfriend to testify. Coleman now relies on
the affidavits to bolster his Miranda argument under
§ 2254(d)(2) for the first time on appeal. It is well-estab-
lished that arguments raised for the first time on appeal
are waived. See, e.g., Pole v. Randolph 570 F.3d 922, 937
(7th Cir. 2009); Domka v. Portage Cnty., Wis., 523 F.3d 776,
783 (7th Cir. 2008); Kunz v. DeFelice, 538 F.3d 667, 681 (7th
Cir. 2008). Even if a party mentioned evidence relating
to the argument below, if the argument itself was not
adequately developed, it is still waived. See Pond v.
Michelin North America, Inc., 183 F.3d 592, 597 (7th Cir.
1999). We thus find Coleman has waived the argu-
ment regarding the affidavits as they relate to his
Miranda claim.
III. CONCLUSION
For the aforementioned reasons, we A FFIRM the dis-
trict court’s denial of habeas relief.
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