Muniz v. Johnson

• Decision Date: 02 January 1998
• Docket Number: No. 96-50508,96-50508
• Citation: 132 F.3d 214
• Parties: Pedro Cruz MUNIZ, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 214

132 F.3d 214

Pedro Cruz MUNIZ, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 96-50508.

United States Court of Appeals, Fifth Circuit.

Jan. 2, 1998.

Faison T. Sessoms, Minneapolis, MN, for Petitioner-Appellant.

John Dury Jacks, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before SMITH, BARKSDALE and DeMOSS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Pedro Muniz appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Finding no reversible error, we affirm and vacate the stay of execution.

I.

Muniz raped and murdered Janis Bickham in 1976. Before doing so, he followed her down a city street and over a bridge. When she reached the end of the bridge, Muniz grabbed her, dragged her down a ravine, over a stream, and through a fence. He then took her to an abandoned cabana, where he raped her and beat in her head with a log. When he was finished, he buried her body in a pile of wood and fled.

Two days later, police arrested Muniz and charged him with murder. He was taken before a magistrate, then placed in a local jail.

The next day, Officer William Shirley questioned Muniz; this interview ultimately led to Muniz's confession. In his written statement, Muniz admitted to having the aggravated and nonconsensual sexual relations with Bickham that preceded her death. Muniz gave the statement while in police custody after receiving his Miranda warnings.

During this interview, Shirley suggested at one point that Muniz might want to call a lawyer. Muniz agreed, and Shirley picked up the telephone to place the call for Muniz. When asked for his lawyer's number, Muniz indicated that he would contact the lawyer later. Shirley then hung up the phone and continued the interview. ¹

II.

A.

At the pre-trial hearings concerning his motion to suppress the confession, Muniz testified that Shirley had coerced him into giving the confession. He claimed that Shirley had made him feel despondent, playing on his fears for his family; had promised him leniency in exchange for the confession; and had offered to help his family if he signed the statement.

Shirley testified that he told Muniz that sometimes when a defendant confesses, the state shows leniency. Shirley, however, denied that he guaranteed a reduced charge or sentence in exchange for Muniz's statement.

Shirley also stated that although he did offer to contact social service agencies for Muniz's family, he did not condition his offer on whether Muniz confessed. Shirley testified that he spoke with Muniz about religion and offered to get him a priest--an offer not conditioned on a confession. During the interview that led to the confession, Shirley showed Muniz photos of Bickham's body and of the crime scene.

The trial judge credited Shirley's testimony over Muniz's and admitted the confession into evidence. In 1986, a jury convicted Muniz of capital murder and sentenced him to death. ²

B.

The Texas Court of Criminal Appeals affirmed, see Muniz v. State, 851 S.W.2d 238, 259 (Tex.Crim.App.1993), whereupon Muniz filed a state habeas corpus petition, which was denied by the Texas Court of Criminal Appeals in 1994. Two months later, Muniz filed a federal habeas petition, which was denied in 1996.

III.

We first must address the applicability to this case of the Antiterrorism and Effective Death Penalty Act ("AEDPA") of 1996. After denying Muniz's habeas petition, the federal district court granted a Certificate of Probable Cause ("CPC"), allowing him to appeal. We remanded in light of our caselaw applying the AEDPA to similar cases. See Muniz v. Johnson, 114 F.3d 43, 45-46 (5th Cir.1997). We instructed the district court to narrow the issues for appeal by issuing a Certificate of Appealability ("COA") under the new law. See id.

On remand, the district court did as we had instructed and issued a COA specifying the issues Muniz could appeal. Contemporaneously, however, the Supreme Court decided Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), holding that the AEDPA is inapplicable to cases like Muniz's. See Lindh, --- U.S. at ----, 117 S.Ct. at 2063.

In light of Lindh, we erred in remanding this case for a COA. Instead, the district court was correct originally to have issued a CPC. Fortunately, however, under the law of this circuit, we construe the COA grant as a grant of a CPC. See McBride v. Johnson, 118 F.3d 432, 436 (5th Cir.1997).

IV.

A.

Muniz claims that on multiple occasions during the interrogation that led to his confession, he invoked his right to counsel. He further argues that the state can offer only one instance of his voluntary re-initiation of the interrogation. Therefore, he maintains, we should find a Miranda violation, because the state is unable to disprove all of the instances in which he claims that he invoked his right to an attorney. The well-settled rule is that "an accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1881, 68 L.Ed.2d 378 (1981).

At bottom, Muniz's argument is an attack on the trial court's factual finding that Muniz made only one request for a lawyer, rather than several. ³ State court factual findings are presumed correct under 28 U.S.C. § 2254(d) ⁴ unless one of the statutory exceptions is met. The exception at issue here is whether the state court's "factual determination is not fairly supported by the record." 28 U.S.C. § 2254(d)(8). "[T]he burden shall rest on the applicant to establish by convincing evidence that the factual determination by the State court was erroneous." Id. § 2254(d).

Muniz testified that he had made several requests for counsel; Shirley, the only other person in the room at the time, testified to the contrary. At the suppression hearing prior to the first trial, Shirley stated that Muniz asked for counsel "at one period." At that hearing, Shirley also testified, in response to a question by defense counsel, that "there were a couple of times [Muniz] asked to talk to an attorney," but at the suppression hearing before the second trial, Shirley clarified his former testimony, stating that there was only one request for an attorney and that, as he began to place the call to Muniz's lawyer, Muniz decided to continue the interview without counsel.

The record supports the state court's finding that Muniz made only one request for counsel. ⁵ Although Shirley equivocated at the first suppression hearing, his subsequent testimony provides enough evidence to support the trial judge's conclusion that Muniz requested counsel only once. ⁶ Moreover, there is reason to disbelieve Muniz's testimony given at the suppression hearings. ⁷ Given the record, therefore, Muniz has not established "by convincing evidence that the factual determination by the State court was erroneous." 28 U.S.C. § 2254(d).

B.

Muniz challenges the voluntariness of his confession. A confession is voluntary if it is "the product of a rational intellect and a free will." Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978) (internal quotations omitted). The defendant, therefore, must show that but for police coercion he would not have given the confession. See Colorado v. Connelly, 479 U.S. 157, 163-64, 107 S.Ct. 515, 519-20, 93 L.Ed.2d 473 (1986).

"[T]he ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination." Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985). Subsidiary factual questions, however, are entitled to a presumption of correctness: "[S]ubsidiary questions, such as length and circumstances of the interrogation, the defendant's prior experience with the Miranda warnings, often require the resolution of conflicting testimony of police and defendant. The law is therefore clear that state-court findings on such matters are conclusive on the habeas court if fairly supported by the record...." Id. at 117, 106 S.Ct. at 453. Accordingly, using the presumptively correct factual findings of the state court, we reweigh de novo the voluntariness calculation.

"Whether the police engaged in the coercive tactics alleged by the defendant is a subsidiary fact; as such, the trial court's finding is entitled to deference on habeas review if it is supported in the record." Pemberton v. Collins, 991 F.2d 1218, 1225 (5th Cir.1993) (citation omitted). The record supports the trial court's factual findings that Shirley did not promise leniency in exchange for the confession. ⁸ There is also sufficient evidence to support the finding that Shirley did not condition his offer to help Muniz's family seek social services, or his getting a priest for Muniz, on a confession. ⁹

In our voluntariness calculation, therefore, we are left with Shirley's showing Muniz the murder scene pictures; Shirley's appeal to Muniz's religion; and Muniz's alleged fatigued physical and emotional condition at the time of the confession. We cannot conclude that the totality of these factors overpowered Muniz's will or produced a confession that was not of his own free choice.

Muniz was fully informed of his Miranda warnings before he gave his statement. The evidence supports the state court's finding that he understood what these warnings meant. Moreover, before he signed the statement, Muniz was asked by another officer--one who was not in the room at the time the confession was written--whether the statement he gave was...