Johnson v. Harkleroad

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

WAYNE THOMAS JOHNSON, 
Petitioner-Appellant,
v.  No. 03-6620
SIDNEY HARKLEROAD, Superintendent,
Respondent-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Paul Trevor Sharp, Magistrate Judge.
(CA-02-398-1)

Argued: May 5, 2004

Decided: July 19, 2004

Before WIDENER and GREGORY, Circuit Judges,
and C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.

Affirmed by unpublished opinion. Judge Gregory wrote the opinion,
in which Judge Widener and Senior Judge Beam joined.

COUNSEL

ARGUED: Ryan David Guilds, ARNOLD & PORTER, L.L.P.,
Washington, D.C., for Appellant. Clarence Joe DelForge, III, Assis-
tant Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF NORTH CAROLINA, Raleigh, North Carolina, for Appellee. ON
2 JOHNSON v. HARKLEROAD
BRIEF: Roy Cooper, Attorney General, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

GREGORY, Circuit Judge:

Petitioner Wayne Thomas Johnson ("Johnson" or "Petitioner"), a
North Carolina inmate, seeks federal habeas relief, contending that his
conviction and sentence were unconstitutionally imposed in violation
of the Fifth Amendment. Specifically, Petitioner contends that the
police obtained his confession in violation of Miranda v. Arizona, 384
U.S. 436 (1966), and its progeny by failing to give the requisite warn-
ings before he verbally made inculpatory statements. After unsuccess-
ful state post-conviction relief proceedings, Petitioner filed his
petition for habeas relief in the United States District Court for the
Middle District of North Carolina. The district court denied the peti-
tion, and we granted a certificate of appealability to determine
whether Petitioner’s confession was coerced or obtained in violation
of Miranda. Having now considered Petitioner’s claim on the merits,
we affirm the judgment of the district court denying habeas relief. We
conclude that the decision of the North Carolina Court of Appeals
was not contrary to, nor was it an unreasonable application of, clearly
established federal law.

I.

The facts found by the state trial court and adopted by the North
Carolina Court of Appeals as well as the federal district court, are as
follows:

On October 31, 1999 at 4:47 a.m., Detective R.M. Fuquay, of the
Burlington Police Department, was dispatched to a crime scene after
 JOHNSON v. HARKLEROAD 3
the body of Harold Keith Booker (hereinafter "the deceased") was
discovered near the intersection of Sidney and Queen Anne Streets in
Burlington, North Carolina. Reports later confirmed that the deceased
died from head and spinal cord injuries caused by a great deal of force
from a very heavy object such as a bat or a shovel.

Another detective, Sergeant Tye Fowler, interviewed Vicki Sims,
who had accompanied the deceased and an "older white male" in a
taxi from a bar the night the deceased was murdered. She gave a
description of the older man to the police and a composite sketch was
drawn. Officer Avery Irby reported that a man fitting the description
given by Sims had previously flagged him down not far from the
crime scene, stating that he was suffering from an apparent heart
attack. Officer Irby took the man, who was later identified as Johnson,
to the Alamance Regional Medical Center. After discharging Johnson
later that same day, the medical center sent him to Wesley Hall, a res-
idential treatment facility for substance abuse. Two detectives went to
Wesley Hall to ask if Johnson would ride with them to the Burlington
Police Department for questioning.

Having agreed to accompany the officers, Johnson arrived at the
police department between 9:25 p.m. and 9:30 p.m. on October 31,
1999. Prior to being interviewed, according to the testimony of Detec-
tive Fuquay, Johnson was informed that he was not under arrest and
that he was "free to leave at any time." According to Detective
Fuquay, Johnson explained during questioning that he did not know
the deceased or anything about his death and that he had not been to
any bars on the night in question.

At some point during his interactions with police, Johnson volun-
tarily accompanied the officers on a car trip to the City Park, the loca-
tion where defendant said he had slept upon arriving in town the night
before. Detective Fuquay drove an unmarked vehicle to the site as
Johnson rode alongside him, unrestrained by handcuffs or other
devices, in the front passenger seat while Sergeant Fowler sat in the
back taking notes. Johnson first directed the officers to the underpass
of I-40/I-85, explaining that he sat and drank wine at that location
once he arrived in town. Johnson then pointed to B & J’s Lounge
where he admitted to the detectives, for the first time, that he met the
4 JOHNSON v. HARKLEROAD
deceased. After taking this ride, Johnson and the detectives returned
to the Burlington Police Department.

During the early hours of November 1, 1999, Johnson indicated
that he needed his glasses and medication, which were located at the
treatment center. Consequently, two detectives transported Johnson to
Wesley Hall so that he could retrieve those items. On the way to Wes-
ley Hall, Johnson voluntarily made the following statements to the
detectives: that he and the deceased were in an altercation; that he was
afraid for his life and was only defending himself; that "he didn’t
want a charge"; that "he did not want to be charged with anything
more than he had to be"; and that "he didn’t mean to do it." Johnson
was thereafter read Miranda warnings at which time he provided the
officers with a written statement.

Johnson was indicted on November 8, 1999 for second-degree
murder in violation of N.C. Gen. Stat. § 14-17 (1999). On May 9,
2000, Johnson filed a motion to suppress the inculpatory statements
he made to the detectives. At the conclusion of a two-day voir dire
hearing, the trial court denied Johnson’s suppression motion. On May
18, 2000, a jury convicted Johnson of voluntary manslaughter. John-
son was thereafter sentenced to 146-185 months imprisonment. The
North Carolina Court of Appeals affirmed the conviction. Johnson
filed a petition for discretionary review in the Supreme Court of
North Carolina which was denied. Petitioner then filed a motion for
appropriate relief in the Superior Court of Alamance County, which
was summarily denied. Johnson filed the current petition for federal
habeas review on May 21, 2002. On March 19, 2003, the district court
denied Petitioner’s habeas claims. We granted a certificate of appeala-
bility ("COA") to determine whether Johnson’s confession was
obtained in violation of the due process clause of the Fifth and Four-
teenth Amendments and the privilege against self-incrimination as
declared in Miranda and its progeny.

II.

We review de novo the district court’s denial of habeas relief based
on a state court record. Bell v. Ozmint, 332 F.3d 229, 233 (4th Cir.
2003). Where a state court resolved the merits of a claim for post-
conviction relief, federal habeas relief is not available unless the state
 JOHNSON v. HARKLEROAD 5
court’s decision was "contrary to, or involved an unreasonable appli-
cation of, clearly established Federal law, as determined by the
Supreme Court of the United States," 28 U.S.C. § 2254(d)(1) (2003),
or was "based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding," id.
§ 2254(d)(2).

The Supreme Court has interpreted 28 U.S.C. § 2254(d)(1) as giv-
ing independent meaning to both the "contrary to" and "unreasonable
application" clauses. Williams v. Taylor, 529 U.S. 362, 404-05
(2000). A state court decision is "contrary to" Supreme Court prece-
dent if it (1) arrives at a conclusion that contradicts that reached by
the Supreme Court on a question of law; or (2) confronts facts that
are materially indistinguishable from those of relevant Supreme Court
precedent and arrives at a contrary result. Id. at 405. A decision is an
"unreasonable application" of clearly established Supreme Court law
if a state court "identifies the correct governing legal principle from
[the Supreme Court’s] decisions but unreasonably applies that princi-
ple to the facts of [a] prisoner’s case." Id. at 413. "[C]learly estab-
lished Federal law, as determined by the Supreme Court," refers to the
"holdings, as opposed to the dicta, of [the Court’s] decisions as of the
time of the relevant state-court decision." Id. at 412.

As is well established, Johnson’s burden to make such showings
under § 2254 is a most demanding one. "‘[A] federal habeas court
may not issue the writ simply because that court concludes in its inde-
pendent judgment that the state-court decision applied [a Supreme
Court case] incorrectly. Rather, it is the habeas applicant’s burden to
show that the state court applied [that case] to the facts of his case in
an objectively unreasonable manner.’" Price v. Vincent, 538 U.S. 634,
641 (2003) (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)
(per curiam)) (internal citation omitted). With that background in
mind, we turn to the merits of Petitioner’s habeas claims.

III.

A.

We granted a COA to determine whether Johnson’s confession —
he gave a verbal confession prior to receiving Miranda warnings and
6 JOHNSON v. HARKLEROAD
provided a more detailed written statement after being Mirandized —
should have been suppressed because it was obtained in violation of
Miranda and its progeny, or whether his confession was coerced or
otherwise involuntarily obtained in violation of the Fifth Amend-
ment’s privilege against self-incrimination made applicable to the
States by the Fourteenth Amendment. While conceding the police
interview was initiated with his consent, Johnson maintains that the
interview was transformed into a custodial interrogation by the exten-
sive length of the interview, his lack of access to the public and a
mode of transportation, the barrage of questioning by alternating
teams of police officers, the fact that he had been photographed at
some point during his interactions with the police, and his diminished
mental state, resulting from his prior history of drug and alcohol
abuse and excessive indulgence of same several hours prior. Conse-
quently, Johnson contends he should have been given his Miranda
warnings prior to making his verbal confession and, thus, his entire
confession should be suppressed. He also maintains that his verbal
confession, made without the benefit of Miranda warnings, was
coerced and, therefore, could not constitute a voluntary waiver of his
Miranda rights.

A suspect is entitled to Miranda warnings only if he or she is inter-
rogated while "in custody." Thompson v. Keohane, 516 U.S. 99, 102
(1995). The Supreme Court has held that two discrete inquiries must
be conducted when determining whether a person was "in custody."
First, we must consider "the circumstances surrounding the interroga-
tion." Id. at 112. As this is purely an issue of fact, see Tankleff v. Sen-
kowski, 135 F.3d 235, 243 (2d Cir. 1998), we presume that the state
courts’ findings are correct. See 28 U.S.C. § 2254(e)(1); see also Yar-
borough v. Alvarado, 124 S. Ct. 2140, 2150 (2004) (reversing court
of appeals’ grant of habeas relief under 28 U.S.C. § 2254 after finding
that evidence lead to "differing indications" as to the custody inquiry
and concluding, "[t]he custody test is general, and the state court’s
application of our law fits within the matrix of our prior decisions").
We then must determine whether, given those circumstances, a rea-
sonable person would have felt "at liberty to terminate the interroga-
tion and leave," which is a mixed question of fact and law. Thompson,
516 U.S. at 112-13.

As noted above, however, under 28 U.S.C. § 2254(d) Petitioner
must show that the North Carolina Court of Appeals’ decision was
 JOHNSON v. HARKLEROAD 7
either contrary to, or an unreasonable application of, the Supreme
Court’s clearly established precedents. Here, in considering the "con-
trary to" prong of the analysis, the North Carolina state court clearly
identified the applicable Supreme Court precedents and correctly rec-
ognized the governing principles of those decisions. See State v. John-
son, 560 S.E.2d 885 (table), 2002 WL 276219, at *2 (N.C. Ct. App.
Feb. 5, 2002) (unpublished) (discussing Miranda and Beckwith v.
United States, 425 U.S. 341 (1976)); id. (quoting State v. Gaines, 483
S.E.2d 396, 405 (N.C. 1997) (citing Stansbury v. California, 511 U.S.
318 (1994) (per curiam))); id. (quoting Oregon v. Mathiason, 429
U.S. 492, 495 (1977) (per curiam)). In short, nowhere did the North
Carolina Court of Appeals apply a legal standard contrary to that set
forth by the United States Supreme Court, nor did the state court
address a set of facts materially indistinguishable from those of the
Supreme Court’s clearly established precedents. Similarly, for the
detailed reasons that follow, we conclude that the state court’s deci-
sion did not involve an "unreasonable application" of clearly estab-
lished federal law and thus we affirm the judgment of the district
court denying Johnson habeas relief.

B.

In order to protect the right guaranteed by the Fifth Amendment
that "[n]o person . . . shall be compelled in any criminal case to be
a witness against himself," U.S. Const. amend. V, the Supreme Court
in Miranda set forth constitutional rules that law enforcement officers
must follow during custodial interrogations. 384 U.S. at 444; see also
Dickerson v. United States, 530 U.S. 428, 444 (2000) (holding that
requirements of Miranda are constitutional in nature). In general, any
statements elicited from a suspect in violation of these rules are inad-
missible during the prosecution’s case-in-chief. Stansbury, 511 U.S.
at 322. Absent formal arrest, Miranda warnings only apply "where
there has been such a restriction on a person’s freedom as to render
him ‘in custody.’" Mathiason, 429 U.S. at 495. An individual is in
custody for Miranda purposes when, under the totality of the circum-
stances, "a suspect’s freedom of action is curtailed to a ‘degree asso-
ciated with formal arrest.’" Berkemer v. McCarty, 468 U.S. 420, 440
(1984).

The Miranda Court defined a "custodial interrogation" as "ques-
tioning initiated by law enforcement officers after a person has been
8 JOHNSON v. HARKLEROAD
taken into custody or otherwise deprived of his freedom of action in
any significant way." 384 U.S. at 333; Mathiason, 429 U.S. at 492
(duty to give Miranda warnings is triggered "only where there has
been such a restriction on a person’s freedom as to render him ‘in cus-
tody’" and are not required merely because questioning occurs at a
police station); see also Stansbury, 511 U.S. at 322-23 (police offi-
cer’s subjective belief that person questioned is a suspect is irrelevant
to objective "in custody" determination); Berkemer, 468 U.S. at 236-
39 (nature of suspected offense is irrelevant to duty to administer
Miranda warnings); California v. Beheler, 463 U.S. 1121, 1125
(1983) ("ultimate inquiry" is whether there was a formal arrest or
restraint on freedom of movement to the degree associated with a for-
mal arrest); Beckwith, 425 U.S. at 347-48 (holding the fact that an
individual is the "focus" of a criminal investigation does not necessar-
ily mean he or she is in custody). Thus, a determination of whether
a person is "in custody" during police interrogation for purposes of
Miranda, is a mixed question of law and fact. Thompson, 516 U.S. at
112-13. A reviewing court must look to the totality of the circum-
stances in determining whether a person is in custody, "but the ulti-
mate inquiry is simply whether there was a formal arrest or restraint
on freedom of movement of the degree associated with a formal
arrest." Stansbury, 511 U.S. at 322 (citations and internal quotation
marks omitted).

C.

Applying the legal principles discussed above, the North Carolina
state courts concluded that Johnson was not in custody prior to receiv-
ing Miranda warnings. Specifically, the North Carolina state courts
found it significant that: (1) the detectives interrogating Johnson
repeatedly advised him that "he was not under arrest" and was "free
to go"; (2) Johnson acknowledged that he understood these facts;1 (3)
1
Johnson argues his own understanding was immaterial because the
custody determination for Miranda purposes is determined by a reason-
able person standard, not by what the individual subjectively believed.
See infra at 9-12. Here, however, it is clear that in the face of such
repeated statements by the officers that the Petitioner was free to leave,
the North Carolina state courts’ conclusions that a reasonable person
would have felt free to leave is well-supported.
 JOHNSON v. HARKLEROAD 9
the detectives admitted that during the early stages of the interview
they had no probable cause to believe Johnson had killed the deceased
and they would have allowed him to leave; (4) Johnson accompanied
the detectives to the crime scene while riding in the passenger seat
and was never placed in handcuffs or restrained in any other manner;
(5) Johnson was allowed to leave the room in which he was being
questioned to use the restroom without police accompaniment. Hav-
ing reviewed the state courts’ application of federal law concerning
custody to these facts, we conclude that such application was not
unreasonable under clearly established federal law. The purported
evidence of police overreaching is insufficient for us to disturb the
North Carolina Court of Appeals’ determination that the voluntary
interview was not later transformed into a custodial interrogation such
that Johnson was not free to leave, therefore, triggering Johnson’s
Miranda rights prior to the time he was actually warned.

In United States v. Parker, for example, on direct review — where
a more lenient standard of review is applied than on habeas review
— we determined, on largely similar facts although admittedly the
questioning was conducted inside the defendant’s home, that a police
interview did not constitute a custodial interrogation. 262 F.3d 415,
419 (4th Cir. 2001). Specifically, we wrote:

The facts in this case do not demonstrate that Parker’s free-
dom of action was curtailed to such a degree [associated
with formal arrest]. The district court found that Parker was
told she was not under arrest. She was not handcuffed or
otherwise restrained, and the agents did not draw their
weapons in her presence.

Id. We also concluded: "Custody determinations do not depend on the
subjective views of either the interrogating law enforcement officers
or of the person being questioned, but depend instead upon the objec-
tive circumstances of the interrogation." Id. (quoting Stansbury, 511
U.S. at 323).

In this case, we must consider the totality of the circumstances and
determine whether a reasonable person would have understood him
or herself to be under arrest at any time during the interview. Id. First,
we note that the police interview was initiated with Johnson’s con-
10 JOHNSON v. HARKLEROAD
sent, and continued after police repeatedly told him that he was not
in custody and thus free to leave. Johnson, nonetheless, argues that his
"initial willingness to accompany the police to the station does not
negate the fact that as the interrogation proceeded his objectively rea-
sonable understanding of his personal freedom was dramatically
altered." Br. of Appellant at 17 (citing United States v. Kim, 292 F.3d
969, 975 (9th Cir. 2002) (deciding on direct review that: "Voluntary
initiation of contact with the police cannot be, under any circum-
stances, the end of the inquiry into whether a defendant was ‘in cus-
tody’ during the encounter. If an individual comes to the police
station or another location and, once there, the circumstances become
such that a reasonable person would not feel free to leave, the interro-
gation can become custodial.")). We agree that a finding that the
defendant’s contact with the police was voluntary ab initio, without
more, is not the end of the "in custody" inquiry. Our inquiry, then,
must focus on the police conduct after the interview was initiated.

In that vein, Johnson contends that he was objectively "not free to
leave" because he was "repeatedly asked the same questions," had
been "directly and consistently accused of murdering Keith Booker,"
had been "confronted with his past criminal history," and was "held
in custody for several hours" prior to being given his first and only
Miranda warnings. Br. of Appellant at 12.2 At oral argument, counsel
for Johnson indicated that Johnson was "in custody" at the point he
was confronted with his criminal record and the allegations of eyewit-
nesses. To the contrary, the State argues that there was no police mis-
conduct and that the state court’s findings of fact, to which we owe
great deference, clearly indicate that Johnson was free to leave.
Indeed, before Johnson was advised of his Miranda rights, he was
2
More specifically, Johnson contends that: "From the moment Mr.
Johnson entered the Burlington police station, police exercised dominion
and control over him." Br. of Appellant at 13. He also claims the follow-
ing facts support his argument that he was in custody: he was placed in
an interrogation room measuring approximately four-feet by five-feet;
"teams" of detectives alternated asking him questions "at a fast and furi-
ous pace"; detectives took him to the various places he had been the
night before; he was never outside of the officers’ presence; they never
offered to take him back to the residential treatment facility; and he "had
no contact with the outside world." Id. at 13-14.
 JOHNSON v. HARKLEROAD 11
advised that he was not under arrest and that he was "free to leave";
he was allowed to go to the restroom unattended; he was not hand-
cuffed or restrained in any fashion; he was transported in the passen-
ger seat of an unmarked police car as he was taken to retrace his steps
of the previous night; he would have been allowed to leave if he
wanted; and Johnson acknowledged his understanding of the fact that
he was not under arrest and was free to go. On this record, we find
the only probative evidence of police overreaching — which is trou-
bling, but not unconstitutional — is found in a misrepresentation
made by one of the officers who indicated that the "police had an eye-
witness and murder weapon implicating him in the crime." Br. of
Appellant at 14 (citing J.A. at 43-44).3 Without more, however, there
is a strong objective inference that a reasonable person in Johnson’s
circumstances would have understood himself to be free to leave. See
e.g., United States v. Howard, 115 F.3d 1151, 1154-55 (4th Cir. 1997)
(holding, on direct review, defendant driven by DEA agents to proba-
tion office and questioned there as suspect in crime was not "in cus-
3
Even this misrepresentation is not as deceitful as it would first appear.
Though they did not have a true "eye-witness" to the murder, the police
did have a witness who had given a statement indicating that she last saw
the deceased leaving a bar with an individual identified as Johnson. And,
it is well-settled that police may engage in some misrepresentation with-
out rendering a suspect’s resulting confession involuntary or coerced.
See, e.g., United States v. Braxton, 112 F.3d 777, 783 (4th Cir. 1997) (en
banc) (holding that investigator’s statement "you’re not coming clean
. . . you can do five years because you’re not coming clean," did not con-
stitute a threat or promise); cf. Frazier v. Cupp, 394 U.S. 731, 739 (1969)
(holding interrogator’s misrepresentation to suspect that his co-suspect
had already confessed did not render suspect’s subsequent confession
involuntary); Lucero v. Kerby, 133 F.3d 1299, 1310-11 (10th Cir. 1998)
(officer’s false statement that defendant’s fingerprint had been recovered
at the crime scene did not render an otherwise voluntary statement invol-
untary); Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994) (hold-
ing officer’s false statements that police had matched defendant’s
fingerprints to fingerprints found in victim’s van and that two witnesses
had identified defendant did not render defendant’s confession involun-
tary); Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992) ("Of the
numerous varieties of police trickery . . . a lie that relates to a suspect’s
connection to the crime is the least likely to render a confession involun-
tary.").
12 JOHNSON v. HARKLEROAD
tody" for Miranda purposes where he voluntarily agreed to
accompany the officers, was not physically restrained, the officers
brandished no weapons, and there was no evidence of coercion). On
the facts as found by the North Carolina state courts, and in light of
the fact that our holding in Howard, supra, suggests that Johnson
would not prevail on direct review, surely he cannot prevail here
given the deferential standard of review required by 28 U.S.C.
§ 2254(d).

While on a different record, a defendant’s diminished mental state
as a result of his or her history of excessive alcohol and drug use, his
or her less than optimal familiarity with the geographic area in which
discussions with police occur, his or her lack of means of transporta-
tion, and the fact that such defendant had been photographed by the
police4 might demonstrate custody, in light of the totality of the cir-
4
On appeal, Petitioner argues that because the police photographed
him he was in custody. We find that argument unsupported by the record.
First, while Johnson alleges that he had been photographed "for purposes
of identification," Br. of Appellant at 12, thus supporting the proposition
that he was in custody, there is no record support for that proposition.
Under North Carolina law, an individual "charged with the commission
of a felony or a misdemeanor may be photographed and his fingerprints
may be taken for law-enforcement records only when he has been: (1)
Arrested or committed to a detention facility, or (2) Committed to
imprisonment upon conviction of a crime, or (3) Convicted of a felony."
N.C. Gen. Stat. § 15A-502(a) (emphasis added). However, the North
Carolina statute also provides: "[t]his section does not prevent the taking
of photographs, moving pictures, video or sound recordings, fingerprints,
or the like . . . for other evidentiary use." Id. § 15A-502(d) (emphasis
added). Here, the record does not contain any detail as to why Johnson
was photographed, or at what point during his interactions with police his
photograph was taken. Instead, there is only a stray reference to John-
son’s photograph. See J.A. 33 (Tr. at 121, cross-examination of Detective
Duquay) ("[Question]: When [Johnson] got to the station, do you know
whether or not any photos were taken of him? [Answer]: I do know,
because I read it in the report that Detective Poe or Parker one [sic] took
a photo of him."). Thus, on this scant record evidence, we conclude that
the fact that Johnson was photographed is of little import in determining
whether he was in custody. Regardless, given the absence of clearly
established federal law on whether the photographing of a suspect is an
indicia of custody, we could not hold that the North Carolina state
courts’ determination was contrary to, or unreasonable under, clearly
established federal law for failing to consider such evidence.
 JOHNSON v. HARKLEROAD 13
cumstances as found by the state courts in Johnson’s case, these facts
alone do not suggest that Petitioner was "objectively" in custody dur-
ing the interview. See Braxton, 112 F.3d at 784-85 (finding that sus-
pect was not in custody because he initiated the interview, was free
to leave, and was not subject to any police coercion, in word or deed);
cf. Correll v. Thompson, 63 F.3d 1279, 1290-91 (4th Cir. 1995) (con-
fession voluntary when, although defendant had IQ of 68, he had
received Miranda warnings in the past, was in custody only about
seven hours, there was no physical coercion or deprivation, and he
was not induced by promises).5

As we stated in United States v. Photogrammetric Data Servs.,
Inc., 259 F.3d 229, 242 (4th Cir. 2001), abrogated on other grounds
by Crawford v. Washington, 124 S. Ct. 1354 (2004), "[i]n sum, we are
at best left with [Johnson’s] after-the-fact assertion that he felt he had
little or no choice but to accede to the [officers’] request for an inter-
view, which is entitled to limited consideration given the totality of
the circumstances before us. See Braxton, 112 F.3d at 781 (‘Subse-
quent testimony by an accused about his prior subjective mental
impressions and reactions must be carefully scrutinized, as such testi-
mony is always influenced by his self-interest.’) (internal quotation
marks and alterations omitted))." Like the defendant in Photogram-
metric, Johnson "failed to establish that the law enforcement agents
were so intimidating or overpowering as to overcome his will to
resist." Id. To the contrary, the facts as found by the state courts
repeatedly reveal that Johnson was a willing participant throughout
the course of his interactions with the police. Accordingly, the state
court’s finding that Johnson was not in custody and, therefore, not
entitled to Miranda warnings prior to when they were given, was nei-
ther contrary to, nor an unreasonable application of, clearly estab-
lished federal law.
5
We note that Johnson had an extensive criminal history, which he
does not deny. Like the petitioner in Correll, supra, Johnson had also
been given Miranda warnings in the past and was, thus, more likely than
not aware of his rights in this instance. Indeed, Johnson had a total of
seven prior felony and thirteen prior misdemeanor convictions — both
resulting in his receiving the highest prior conviction levels — according
to the State of North Carolina. J.A. at 372-73.
14 JOHNSON v. HARKLEROAD
IV.

Johnson also contends that his confession was involuntary. As dis-
cussed above, supra Part III.C., this claim lacks merit for many of the
same reasons as his custody claim fails. The test for determining
whether a statement is involuntary under the Due Process Clause "is
whether the defendant’s will has been ‘overborne’ or his ‘capacity for
self-determination critically impaired,’" United States v. Pelton, 835
F.2d 1067, 1071 (4th Cir. 1987) (quoting Schneckloth v. Bustamonte,
412 U.S. 218, 225 (1973)); see also Dickerson, 530 U.S. at 434,
because of coercive police conduct, Colorado v. Spring, 479 U.S.
564, 574 (1987). To determine whether a defendant’s will has been
overborne or his capacity for self determination critically impaired,
courts must consider the "totality of the circumstances," including the
characteristics of the defendant, the setting of the interview, and the
details of the interrogation. Pelton, 835 F.2d at 1071. Though an
appellate court must make an independent determination on the issue
of voluntariness, the trial court’s findings of fact on the circumstances
surrounding the confession are to be accepted unless clearly errone-
ous. Id. at 1072.

To establish that his confession was the product of police coercion,
therefore, Johnson must still come forward with evidence of actual
police overreaching, be it mental or physical. As we noted in United
States v. Cristobal:

Historically, cases of gross abuse have allowed courts to
easily deem certain confessions involuntary. Undoubtedly,
an accused’s will may be overborne when he or she is sub-
jected to severe physical abuse, held incommunicado and
questioned for over 36 hours without sleep or rest, given
"truth serums," or threatened with a loaded gun while
wounded. The crucial difference between these cases and
the case at hand is that Cristobal’s waiver (and subsequent
confession) was not the result of coercive police activity.

Coercive police activity is a necessary predicate to a finding
that a confession is not "voluntary" within the meaning of
the Due Process Clause of the Fourteenth Amendment.
 JOHNSON v. HARKLEROAD 15
. . . In determining whether a defendant’s will has been
overborne, the Court has focused on the "crucial element of
police overreaching." While each case has turned on its own
set of factors justifying the conclusion that police conduct
was oppressive, "all have contained a substantial element of
coercive police conduct."

293 F.3d 134, 140-41 (4th Cir. 2002) (citations omitted).

In support of his coercion claim, Johnson argues that the detectives
ignored his initial statement that he did not wish to say anything con-
cerning the deceased’s death and his subsequent statement that
"maybe I should stop talking and get a lawyer." These facts alone,
however, do not establish coercion. First, the state courts’ findings
clearly demonstrate that Johnson’s initial equivocal statement that he
did not wish to say anything was vitiated by his consistent and willing
cooperation with law enforcement. Further, even if Johnson had been
in custody, which he was not, the Supreme Court and this court have
held that ambiguous statements regarding a lawyer like that made by
Johnson are not sufficient to invoke a right to counsel. See Davis v.
United States, 512 U.S. 452, 457-62 (1994) (holding that when an
individual makes an equivocal statement such as "[m]aybe I should
talk to a lawyer," officers do not need to cease questioning); Burket
v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000) (following Davis and
holding statement, "I think I need a lawyer," is not unequivocal, and
petitioner was not in custody because, inter alia, he was advised that
he could leave any time).

For further support of his coercion claim, Johnson relies on his
diminished mental capacity, a condition of which he contends the
police were well aware because they had previously taken him to the
hospital for an apparent heart attack, which turned out to be symp-
toms of excessive drug and alcohol use. The state courts’ factual find-
ings foreclose such arguments, however. See, e.g., State v. Johnson,
2002 WL 276219, at *3 (adopting the lower court’s factual finding
that Johnson did not smell of alcohol and "appeared fine and nor-
mal"); id. (accepting lower court’s finding Johnson appeared compe-
tent to the detectives, "did not have any odor of alcohol on his breath,
that he was able to walk and talk properly, and that he had no diffi-
culty in answering questions"); State v. Johnson, No. 99 CRS 56417,
16 JOHNSON v. HARKLEROAD
slip op. at 2-3 ¶ 10 (N.C. Super. Ct. June 1, 2000) (finding "defendant
accompanied the officers freely and voluntarily down a set of stairs,
that he had no problem walking and had no problem getting in the
car; that when he talked to [the detectives], that the defendant was
rational, that he had a normal tone of voice . . . and that he had no
problems understanding the questions and responded appropriately");
id. at 3 ¶ 13 (finding defendant walked and talked properly and
answered questions without difficulty); id. ¶ 17 (finding "there was
still nothing out of the ordinary about defendant’s appearance and
demeanor").

Thus, the state courts’ findings demonstrate that evidence of coer-
cion in this case falls far short of the facts at issue in Cristobal, where
we found that even the fact that the defendant had been given pain
killers and narcotics such as morphine was "not enough to render his
waiver involuntary." 293 F.3d at 141. In that case, we acknowledged:
"In making a determination on whether one’s will has been over-
borne, we certainly must take into consideration ‘the characteristics
of the defendant.’" Id. (quoting Pelton, 835 F.2d at 1071). However,
we concluded that "a deficient mental condition (whether the result of
a pre-existing mental illness or, for example, pain killing narcotics
administered after emergency treatment) is not, without more, enough
to render a waiver involuntary." Id. (citing Colorado v. Connelly, 479
U.S. 157, 164-65 (1986)). Here, in light of the state courts’ myriad
factual findings regarding Johnson’s apparent competency, we find no
evidence of unconstitutional coercion. The state record cannot support
a claim that law enforcement officials exploited Johnson’s weakened
condition with coercive tactics. See Connelly, 479 U.S. at 165.

Like the defendant in Cristobal, Johnson "‘never requested not to
be interviewed due to pain’" or due to his mental state. Cristobal, 293
F.3d at 141 (quoting United States v. Guay, 108 F.3d 545, 550 (4th
Cir. 1997)). Likewise, "[n]o officer harmed or threatened to harm
Cristobal if he did not" confess. Id. In fact, the police "did not pres-
sure [Johnson] in any way", see id., to make his oral confession.
Rather, the officers were "careful to 1) ensure that [Johnson] was alert
before speaking with him, 2) introduce [themselves to Johnson] and
advise [him] of the nature of the investigation, 3) read [Johnson] his
Miranda rights [before formally arresting him], and 4) make sure,
even after the waiver, that [Johnson] was in fact a willing participant."
 JOHNSON v. HARKLEROAD 17
Id. Thus, under Cristobol, the conclusion is inescapable that "[t]his is
simply not a case where law enforcement has attempted to ‘wring[ ]
a confession [or Miranda waiver] out of an accused against his will.’"
Id. (quoting Blackburn v. Alabama, 361 U.S. 199 (1960)) (alterations
in original).

Based on our review of the record, we conclude the North Carolina
Court of Appeals’ determination that Johnson’s confession was not
the result of unconstitutional police coercion is neither contrary to,
nor an unreasonable application of, clearly established federal law.
We do not find, as Johnson asserts, that his will was overborne by the
circumstances of the police station interview.

V.

For the foregoing reasons, we affirm the district court’s denial of
Johnson’s habeas petition.

AFFIRMED