Naif Al-Yousif v. Trani

• Decision Date: 06 March 2015
• Docket Number: No. 14–1084.,14–1084.
• Citation: 779 F.3d 1173
• Parties: NAIF AL–YOUSIF, Petitioner–Appellee, v. Travis TRANI, Warden, Colorado State Penitentiary; John W. Suthers, Attorney General of the State of Colorado, Respondents–Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

779 F.3d 1173

NAIF AL–YOUSIF, Petitioner–Appellee

v.Travis TRANI, Warden, Colorado State Penitentiary; John W. Suthers, Attorney General of the State of Colorado, Respondents–Appellants.

No. 14–1084.

United States Court of Appeals, Tenth Circuit.

March 6, 2015.

Ryan A. Crane, Assistant Attorney General (John W. Suthers, Attorney General, with him on the briefs), Denver, CO, for Respondents–Appellants.

Brett Daniel Lampiasi, Law Office of Brett Daniel Lampiasi, Hatfield, MA, and Henry L. Solano, Wilson Elser Moskowitz Edelman & Dicker LLP, Denver, CO, (Steven M. Feder and Barry Boughman, Feder Law Firm, Denver, CO, with them on the brief), for Petitioner–Appellee.

Before HARTZ, MATHESON, and MORITZ, Circuit Judges.

Opinion

HARTZ, Circuit Judge.

The United States District Court for the District of Colorado granted Defendant Naif Al–Yousif's application for a writ of habeas corpus under 28 U.S.C. § 2254. Although the application was untimely filed, the district court granted equitable tolling and proceeded to the merits. It ruled that the state-court decision was both contrary to and an unreasonable application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). The State of Colorado appealed. (It did not need to obtain a certificate of appealability. See Fed. R.App. P. 22(b)(3).) We have jurisdiction under 28 U.S.C. §§ 1291 and 2253 and reverse.

I. BACKGROUND

The facts are largely undisputed. Defendant, a native of Saudi Arabia, moved to the United States in 1996 to study English.

He attended an English-language program for 14 months, advancing from no English comprehension or speaking ability to the ability to carry on a basic conversation.

Defendant's conviction was for the murder of Abdulaziz Al–Kohaji on January 10, 2001. See People v. Al–Yousif, 206 P.3d 824, 828 (Colo.App.2006) ( Al–Yousif II ). The victim flew to Denver that day and was driven from the airport to his apartment by Defendant's cousin (Mishal Al–Swaidy) and brother, who expected to see him later at dinner. But Defendant picked the victim up at the apartment and drove him to the home Defendant shared with Al–Swaidy and their roommate, Tariq Al–Dossary. Defendant left the house to buy groceries. When he returned, the victim was tied to a chair. Al–Dossary forced him to disclose his financial-account information and then strangled him to death with a rope while Defendant and Al–Swaidy watched. The three men disposed of the body in a dumpster. Defendant and Al–Dossary sold the victim's car, cashed $1,000 of the victim's cashier's checks, and withdrew $19,900 from his bank account. Al–Dossary and Al–Swaidy fled to Saudi Arabia. Defendant initially fled to California but returned to Colorado after speaking to his brother.

Detective Gene Guigli arrested Defendant when he returned. On the way to the police station, Defendant said words to the effect of “I know all about it,” and appeared eager to talk. People v. Al–Yousif, 49 P.3d 1165 (Colo.2002) ( Al–Yousif I ) App. A (Order on Mot. to Suppress Statements, People v. Al–Yousif, No. 01 CR 1861, 2001 WL 36243445 (Dist.Ct.Colo. Dec. 20, 2001) (Order to Suppress)), at 1178 (internal quotation marks omitted). Guigli briefly advised Defendant of his rights and instructed him not to talk while being transported.

At the station, Guigli and Detective Mike Martinez questioned Defendant while being videotaped. After asking Defendant the spelling and pronunciation of his name and his date of birth, address, and phone number, Martinez said, “[L]et me first advise you of your rights. Okay?” Tr. of Interview at 3, Al–Yousif v. Trani, No. 1:12–cv–01742–RPM (D.Colo. Nov. 16, 2002) (Doc. No. 19–2) (Tr.). He then read, without pausing, from a printed form:

Martinez: Okay. You have the right to remain silent. Anything you say can be used as evidence against you in court.

Al–Yousif: [Nods head]

Martinez: You have the right to talk to a lawyer before questioning and have him present—

Al–Yousif: [Nods head]

Martinez:—during questioning. If you cannot afford a lawyer, one will be appointed for you without cost to you before questioning.

Al–Yousif: [Nods head]

Id.; see Order to Suppress, 49 P.3d at 1180.

Martinez checked off each right as he read. See Order to Suppress, 49 P.3d at 1180. When asked if he understood, Defendant “nodded and mumbled something that sound[ed] like an affirmative response.” Id. Martinez asked whether Defendant was sure, and he responded yes. Martinez then turned the form to face Defendant and said: “I need your signature here to show you were the person advised of your rights.” Id. (internal quotation marks omitted). Defendant signed his name. Martinez continued: “[I]t says here, ‘Knowing my rights and knowing what I'm doing, I now wish to voluntarily talk to you.’ To talk with us, I need your signature on that line.” Tr. at 4. He pointed to the signature blank in the waiver portion of the form. See Order to Suppress, 49 P.3d at 1180. Defendant signed his name without asking any questions. See id. Martinez twice asked whether any promises or threats had been made to Defendant to have him make a statement. See id. Defendant responded “What statement?”¹ Al–Yousif I, 49 P.3d at 1170 (internal quotation marks omitted). Guigli said that Martinez meant that they “didn't make any threats to hurt you or physically harm, or mentally harm you to make this statement. It's voluntary?” Tr. at 4. Defendant shook his head and said “You didn't.” Tr. at 5.

Nevertheless, when Guigli asked, “And you're voluntarily going to talk to us about what happened,” Defendant said that he would not speak to the detectives until the victim's uncle arrived. Id. Guigli responded, “You understand we have to talk first.” Order to Suppress, 49 P.3d at 1182 (internal quotation marks omitted). Defendant initially said, “We'll talk,” Tr. at 5; but after Martinez said, “Tell us what happened to [the victim],” id. at 8, Defendant repeated, “I don't feel like talking until his uncle comes,” Order to Suppress, 49 P.3d at 1182 (internal quotation marks omitted). Guigli said, “We can't bring the uncle into this interview.” Id. (internal quotation marks omitted).

Defendant then answered questions with inculpatory statements that led to his conviction. During the interview Defendant “stated that he was good friends with the victim,” id. , that he had spoken to the victim's uncle and told him that he would explain what happened when the uncle came to Colorado, and that in Saudi Arabia the victim's parents would decide his punishment. Late in the interview, the detectives asked Defendant whether he expected to go to prison. He said no and asked the detectives what would happen if the victim's uncle said to let Defendant go. A detective said: “You have been here long enough. You know we have courts like across the street, that big courthouse. That's up to a judge and jury what happens to you. Do you understand that?” Tr. at 78. The interview lasted 90 minutes before Defendant agreed to take the detectives to the dumpster where he and the other men had disposed of the body.

When Defendant and the detectives returned to the station, Detective Martin Vigil asked Defendant how long he had been in the United States, if Defendant had understood him, and whether Defendant had understood everything in the earlier interview. He responded affirmatively and said that although “he sometimes has a problem understanding” he would ask for an explanation if he did not understand. Order to Suppress, 49 P.3d at 1181. Vigil provided a third Miranda advisement, offering some explanation or paraphrase after each right. Defendant then said that he wanted an attorney, and the detectives ended the interview.

Before trial, Defendant moved to suppress the video of his police interrogation, asserting that he had not knowingly and intelligently waived his Miranda rights. At the suppression hearing, he called three witnesses who testified that he had not understood his rights because of his cultural background and limited English proficiency. One expert, Dr. Mohammed Amin Kohlwadia, testified that Defendant had poor English skills compared to other Arabic-speaking students and that he found it more difficult to explain legal concepts to him. Dr. Kholwadia also testified that “nodding ... does not necessarily mean that an Arab person understands everything but can mean that he wants more explanation.” Id. He said that “some of the terms used in the advisement such as ‘right’ and ‘evidence’ could translate into two or three different meanings.” Al–Yousif I, 49 P.3d at 1171. And he related that there is no right not to speak to the police in Saudi Arabia, and that when he reviewed the advisement form with Defendant the morning of the hearing, Defendant understood the words but had difficulty with the concept of the right to remain silent. The other two witnesses had taught Defendant English. They testified that he would nod and say that he understood even when he did not understand the full meaning of what was being said. One testified that Defendant had reached a fifth-grade level of English reading and that comprehension of the Miranda advisement requires a seventh-grade reading level for a native speaker. See Order to Suppress, 49 P.3d at 1181. Two friends testified that Defendant had limited English proficiency and that they had assisted Defendant with forms in English.

The trial court's “impression from multiple reviews of [the videotaped interrogation] [was] that defendant had a fair ability to converse with the detectives in English.” Id. at 1180. It noted that Defendant “frequently respond[ed] ‘Huh?’ to questions and had trouble with certain words [but] responded appropriately to most of the questions posed to him.” Id. Nonetheless, the court concluded that, although Defendant demonstrated the ability to engage in casual conversation, the State had failed to show that Defendant knowingly and...