Bryan v. Warden, Indiana State Reformatory

• Decision Date: 15 May 1987
• Docket Number: No. 85-2809,85-2809
• Citation: 820 F.2d 217
• Parties: Martin R. BRYAN, Petitioner-Appellant, v. WARDEN, INDIANA STATE REFORMATORY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 217

820 F.2d 217

Martin R. BRYAN, Petitioner-Appellant, v. WARDEN, INDIANA STATE REFORMATORY, Respondent-Appellee.

No. 85-2809.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 1987.

Decided May 15, 1987.

Marvin Hamilton, Law Student, Prof. Thomas Broden, Notre Dame University, Law School, Notre Dame, Ind., for petitioner-appellant.

Michael Schoening, Asst. Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before CUMMINGS, FLAUM and EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge.

The appellant, Martin R. Bryan, was convicted of attempted murder, rape, and confinement. On direct appeal, the Indiana Supreme Court affirmed his conviction. Bryan v. State, 438 N.E.2d 709 (Ind.1982). Bryan subsequently petitioned for habeas corpus relief, alleging that his post-arrest confession was obtained in violation of his Fifth Amendment right to have counsel present during custodial interrogation. He also alleged that he was denied "appellate due process," because his conviction was affirmed even though a majority of the Indiana Supreme Court--although for different reasons--would have reversed his conviction. We conclude that neither issue Bryan raises warrants the relief he seeks, and we therefore affirm the denial of his habeas petition.

I.

Bryan was arrested for the attempted murder, rape, and confinement of a convenience store clerk. Upon arrest, he was read his Miranda rights, and he executed a written notice acknowledging this. However, Bryan contends that, during the ensuing interrogation, he was questioned even after he had requested an attorney. At the beginning of the defendant's interrogation, part of which was tape-recorded, the sheriff asked Bryan, "Is there any question as to your legal rights, Martin?" Bryan v. State, 438 N.E.2d 709, 715 (Ind.1982). Then, the following exchange took place:

[Bryan]: No, but I think I'm gonna need a lawyer.

[Sheriff]: Ok, you don't want to talk to us.

A: I'll talk to you, but I'm still gonna need a lawyer.

Q: Ok ... now do you want a lawyer before we ask you questions?

Id. Bryan did not answer the sheriff's question. Instead, he asked what the charges were against him. The defendant subsequently confessed to the abduction. The following colloquy took place immediately thereafter:

[Sheriff]: Ok, do you want an attorney here?

[Bryan]: Yea.

Q: You do want an attorney.

A: Yea, I sure do.

Q: Ok, you understand that I can't ask you any more questions.

A: That's right. I want an attorney.

Id. The state court found that, at this point, the tape recorder was turned off and a discussion between Bryan and two officers occurred. What took place during this interval was subject to conflicting testimony. However, when the machine was turned back on, Bryan affirmatively responded to the sheriff's statement that, "you want to give me a statement into the case and then you want an attorney." Id. Bryan then confessed to the crimes charged, and subsequently was convicted.

On direct appeal, the Indiana Supreme Court, which is composed of five justices, affirmed. The court concluded that the "defendant exercised his free will and voluntarily and knowingly made the confession." Id. at 718. Two justices, however, dissented from this finding, concluding that the state had not proven a valid waiver of Bryan's Miranda rights. One justice, although believing that Bryan's confession was voluntary, concluded that a hearing was needed to determine whether Bryan was competent to stand trial.

Bryan then filed a habeas petition in federal district court, alleging that he had not voluntarily waived his Miranda rights and that the manner in which the Indiana Supreme Court had affirmed his conviction denied him due process. The district court concluded that Bryan's confession had been voluntarily made. The district court held that Bryan's "appellate due process" claim was waived, because he failed to show sufficient cause for not raising it in his petition for rehearing to the Indiana Supreme Court.

II.

This appeal presents the issue of whether Bryan voluntarily waived his Miranda rights. To make this determination, we must first decide the appropriate standard of review. This raises the issue of whether a finding by a state court that a waiver was voluntary is entitled to deference under 28 U.S.C. Sec. 2254(d). ¹ Section 2254(d) provides that in a habeas corpus proceeding state court factual findings that are reasonably based on the record are accorded a presumption of correctness.

We recently have been faced with a similar issue: whether the Sec. 2254(d) presumption of correctness applies to state court findings that a waiver of Miranda rights is knowing and intelligent. See Perri v. Director, 817 F.2d 448 (7th Cir.1987). In Perri, we held that the presumption should apply because the determination of whether a waiver was knowing and intelligent was a factual inquiry. Our result, we concluded, was consistent with the Supreme Court's reasoning in Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). Moreover, our result in Perri was supported by the fact that in a federal criminal case on direct appeal, the question of whether a defendant has waived his or her rights is treated as a question of fact. We conclude that, for much the same reasons we outlined in Perri, a state court determination that a waiver was voluntarily made is entitled to the Sec. 2254(d) presumption.

A.

In Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985), the Supreme Court held that the "ultimate issue of 'voluntariness' is a legal question," id. at 450 (emphasis added), and that this ultimate determination is subject to de novo federal review. The Miller Court was concerned with coercive techniques that could force a defendant to confess. To protect the "Fourteenth Amendment guarantee of fundamental fairness," Miller, 106 S.Ct. at 449, the Court held that an independent federal review of the totality of the circumstances is required. Therefore, whether or not the confession itself was voluntary, and whether it was properly admitted, are questions of law subject to de novo federal review, even though the subsidiary findings are questions of fact.

Miller does not bar our conclusion that the voluntariness of a waiver is a factual inquiry entitled to the Sec. 2254(d) presumption. See Perri, 817 F.2d at 451. In fact, the Court stated: "The present case presents no occasion for us to address the question whether federal habeas courts must accord the statutory presumption of correctness to state-court findings concerning the validity of a waiver," id. 106 S.Ct. at 449 n. 3. The issue of whether a waiver is voluntary does not involve the same concerns that the Supreme Court expressed in Miller. The voluntariness of a waiver can be determined from certain factual inquiries, such as the length and circumstances of the interrogation. See Miller, 106 S.Ct. at 453. A state trial court is in the best position to look at these factual circumstances surrounding the waiver, and to weigh the conflicting testimony. "The resolution of conflicting stories is appropriately made by the court of initial impression and not a federal court on collateral review." Perri, 817 F.2d at 452 (citation omitted) (footnote omitted); see also Miller, 106 S.Ct. at 452. The voluntariness of a waiver--like the determination of whether a waiver is knowingly and intelligently made--is therefore a subsidiary factual inquiry best made in the state courts.

We conclude that whether a waiver of Miranda is voluntary is a factual determination. Therefore, state court findings on whether a defendant voluntarily waived his or her rights are entitled to the Sec. 2254(d) presumption. Accord Murphy v. Holland, 776 F.2d 470, 482 (4th Cir.1985), vacated on other grounds, --- U.S. ----, 106 S.Ct. 1787, 90 L.Ed.2d 334 (1986); Nelson v. McCarthy, 637 F.2d 1291, 1295-96 (9th Cir.1980), cert. denied, 451 U.S. 940, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981). But see Ahmad v. Redman, 782 F.2d 409, 413 (3d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 119, 93 L.Ed.2d 66 (1986) ²; Finney v. Rothgerber 51 F.2d 858, 862 (6th Cir.), cert. denied, 471 U.S. 1020, 105 S.Ct. 2048, 85 L.Ed.2d 310 (1985).

Our conclusion is consistent with the treatment that this circuit gives the question of whether a defendant has voluntarily waived his or her rights in federal criminal cases on direct appeal. See, e.g., Gorham v. Franzen, 760 F.2d 786, 790 (7th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 255, 88 L.Ed.2d 262 (1985) (question of whether a defendant has waived his or her Miranda rights is a question of fact); accord United States v. Alderdyce, 787 F.2d 1365, 1368 (9th Cir.1986); United States v. Binder, 769 F.2d 595, 598 (9th Cir.1985); cf. United States v. Hardin, 710 F.2d 1231, 1236 (7th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 286, 78 L.Ed.2d 263 (1983) ("The parameter of a consensual search like the question of the voluntariness of the consent itself, is an issue of fact...."). The treatment should be the same, because "[b]oth the district court in a federal criminal case and a state trial court have the opportunity to assess the credibility of witnesses." Perri, 817 F.2d at 452. Thus we conclude, as we did in Perri with regard to the "knowing and intelligent" prong of the waiver analysis, that it would be anomalous to accord a state trial court's factual findings less weight than the findings of a federal trial court.

The Supreme Court's recent opinion in Connecticut v. Barrett, --- U.S. ----, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987), also supports our result. In that case, the defendant refused to give a written statement unless his attorney was present, even though he "had 'no problem' talking about the incident." Id. at 830 (citation omitted). The Connecticut Supreme Court reversed Barrett's conviction, holding that Barrett had invoked his right to counsel. The Supreme Court reversed, holding that...