UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-60030
(Summary Calendar)
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HERMAN BARNES,
Petitioner-Appellant,
versus
JAMES V. ANDERSON, SUPERINTENDENT,
MISSISSIPPI STATE PENITENTIARY,
Respondent-Appellee.
_______________________________________________
Appeal from the United States District Court
For the Southern District of Mississippi
(CA-2:88-CV-223)
_______________________________________________
May 19, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Herman Barnes appeals the dismissal of his federal habeas
corpus petition challenging his convictions in Mississippi state
court. We affirm.
Herman Barnes was convicted in separate trials of two counts
of capital murder and was sentenced to two consecutive terms of
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
life imprisonment. Barnes appealed his convictions to the
Mississippi Supreme Court claiming, inter alia, that his confession
was involuntary and extracted in violation of his rights under the
Fourth, Fifth, Sixth, and Fourteenth Amendments. The Mississippi
Supreme Court affirmed both convictions without written opinion.
Barnes v. State, 507 So.2d 380 (Miss. 1987); Barnes v. State, 506
So.2d 977 (Miss. 1987).
Barnes filed a federal habeas petition with the district court
under 28 U.S.C. § 2254. At the magistrate judge's recommendation,
the district court dismissed the petition with prejudice on the
ground that all of Barnes's claims were barred by Stone v. Powell,
428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) (holding
that Fourth Amendment claims may not be raised in federal habeas
corpus proceedings if there was full and fair opportunity to
litigate in state court). We affirmed the district court's
disposition with respect to Barnes's Fourth Amendment claims but
remanded his claims under the Fifth, Sixth, and Fourteenth
Amendments for a determination of whether Barnes had exhausted his
remedies in state court and, if so, whether his claims were
meritorious.
The magistrate judge found that Barnes had exhausted his
remedies in state court, but determined that his confession was
voluntary and that he properly waived his Sixth Amendment right to
counsel. The district court adopted the magistrate judge's
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recommendation and dismissed Barnes's petition. We granted a
certificate of probable cause for appeal.1 Barnes challenges the
dismissal of his petition on the grounds that his confession was
involuntary, that it was procured in violation of his Fifth and
Sixth Amendment rights to counsel, that the delay between his
arrest and presentation to a magistrate judge violated a liberty
interest created by state law, and that the district court judge
was prejudiced against him and should have recused himself from the
proceedings.
Barnes first contends that his confession was involuntary due
to the conditions of his confinement2 and the fact that more than
eighty hours passed between his arrest and initial appearance
before a magistrate judge. We disagree.
The Fourteenth Amendment bars admission of confessions at
trial unless they are offered freely, voluntarily, and without
compulsion or inducement. Withrow v. Williams, 507 U.S. 680, 688-
90, 113 S. Ct. 1745, 1751-52, 123 L. Ed. 2d 407 (1993). Federal
courts look at the totality of the circumstances to determine
whether a confession was the product of the accused's free and
1
We granted Barnes’s request for a certificate of probable cause (CPC)
on June 5, 1996. On April 24, 1996, the President signed the Antiterrorism and
Effective Death Penalty Act (AEDPA), which amended 28 U.S.C. § 2253(c)(1) to
require that a petitioner obtain a certificate of appealability (COA) prior to
appeal in habeas corpus proceedings, rather than a CPC as previously required.
In Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996), we held that the
standard governing the issuance of a COA is the same as that for a CPC.
Therefore, we shall treat Barnes’s CPC as a COA.
2
Barnes argues generally that he was detained “incommunicado” without
access to visitors or an attorney.
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rational choice. Id. at 689, 113 S.Ct. at 1751; United States v.
Rogers, 906 F.2d 189, 190 (5th Cir. 1990). “[N]o single event is
sufficient to place the stamp of involuntariness on [a defendant’s]
confessions.” Jurek v. Estelle, 623 F.2d 929, 940 (5th Cir. 1980)
(en banc), cert. denied, 450 U.S. 1001, 101 S. Ct. 1709, 68 L. Ed.
2d 203 (1981), and cert. denied, 450 U.S. 1014, 101 S. Ct. 1724, 68
L. Ed. 2d 214 (1981).
Although a delay of more than forty-eight hours between an
arrest and probable cause hearing is a presumptive violation of the
Fourth Amendment, County of Riverside v. McLaughlin, 500 U.S. 44,
57, 111 S.Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991), the delay is
only one aspect of the totality of the circumstances a court should
consider when assessing the voluntariness of the confession under
the Fifth and Fourteenth Amendments. West v. Johnson, 92 F.3d
1385, 1404-05 (5th Cir. 1996). In assessing such claims, we must
determine whether there is a causal connection between the delay
and the confession. De La Rosa v. Texas, 743 F.2d 299, 303 (5th
Cir. 1984), cert. denied, 470 U.S. 1065, 105 S. Ct. 1781, 84 L. Ed.
2d 840 (1985).
Whether a confession is voluntary is a mixed question of law
and fact. Williams v. Maggio, 727 F.2d 1387, 1390 (5th Cir. 1984).
While this appeal was pending, Congress enacted the AEDPA, which
modified the standard of review for such questions in habeas
petitions. Section 2254(d)(1) now provides that we may grant an
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application for writ of habeas corpus only if the state court’s
disposition of a mixed question of law and fact “resulted in a
decision that . . . involved an unreasonable application of[]
clearly established Federal law . . . .”3 Following our recent
decision in Drinkard, an application of law to facts is not
unreasonable unless “it can be said that reasonable jurists
considering the question would be of one view that the state court
ruling was incorrect.” 97 F.3d at 769.
We find that the record supports the state court’s conclusion
that Barnes gave his confession freely, voluntarily, and without
compulsion or inducement. Although we do not commend the lengthy
delay between his arrest and initial appearance before a
magistrate, we find no evidence to support a finding that the
incarceration caused Barnes to confess. To the contrary, the
record indicates that during the first four days of Barnes's
confinement, police made no attempt to question him about his
possible involvement in the murders other than his voluntary
submission to a lie detector test. The sheriff and other officials
present when Barnes confessed testified that he was never
threatened or offered rewards or leniency in exchange for his
confession. The record also reveals that, on at least three
occasions prior to his confession, police administered Miranda
3
Amended § 2254(d)(1) applies to appeals, such as this one, pending
on the effective date of the AEDPA. Drinkard, 97 F.3d at 764-65.
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warnings and Barnes indicated that he understood his rights. In
fact, Barnes explicitly waived his Miranda rights just prior to
dictating his confession to police. At no time did Barnes request
the presence of counsel. The magistrate judge noted that Barnes
was an articulate high school graduate familiar with the legal
system and that he was not under the influence of drugs or alcohol
at the time of his confession. In light of the evidence in the
record and the totality of the circumstances, we cannot say that
the state court’s determination that Barnes’s confession was
voluntary was an unreasonable application of clearly established
federal law.
As an additional ground for habeas relief, Barnes argues that
police obtained his confession in violation of his Fifth and Sixth
Amendment rights to counsel. Barnes’s argument is unconvincing.
The Fifth Amendment guarantees the right to counsel during
custodial interrogation regarding an uncharged offense only if the
defendant expressly invokes the right. United States v. Laury, 49
F.3d 145, 150 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct.
162, 133 L. Ed. 2d 105 (1995). Moreover, a defendant’s voluntary
decision to answer questions regarding a charged offense after
police have administered proper Miranda warnings constitutes a
knowing and intelligent waiver of the right to counsel under the
Sixth Amendment. West, 92 F.3d at 1404; Montoya v. Collins, 955
F.2d 279, 282 (5th Cir.), cert. denied, 506 U.S. 1036, 113 S. Ct.
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820, 121 L. Ed. 2d 692 (1992). Although Barnes was advised of his
Miranda rights on at least three occasions))once immediately before
he confessed))at no time did Barnes expressly invoke his right to
consult an attorney during his confinement or interrogation.
Therefore, we agree with the magistrate judge that Barnes knowingly
and intelligently waived his Fifth and Sixth Amendment rights to
counsel.
Barnes next contends that the lengthy delay between his arrest
and initial appearance before a magistrate violates a state-created
liberty interest protected under the due process clause of the
Fourteenth Amendment. Although the Fourteenth Amendment entitles
individuals to procedural protections before they can be deprived
of a liberty interest created by state law, Meachum v. Fano, 427
U.S. 215, 226, 96 S. Ct. 2532, 2539, 49 L. Ed. 2d 451 (1976),
state-created procedural rights themselves are not liberty
interests within the meaning of the Fourteenth Amendment. Olim v.
Wakinekona, 461 U.S. 238, 250, 103 S. Ct. 1741, 1748, 75 L. Ed. 2d
813 (1983).4 Asserted violations of state law cannot provide a
basis for federal habeas relief. West, 92 F.3d at 1404. Barnes's
claim is thus beyond the scope of our review.
Lastly, Barnes argues that the district court judge should
4
The Seventh Circuit in Shango v. Jurich, 681 F.2d 1091 (7th Cir.
1982), aptly noted that “[i]f a right to a hearing is a liberty interest, and if
due process accords the right to a hearing, then one has interpreted the
Fourteenth Amendment to mean that the state may not deprive a person of a hearing
without providing him with a hearing. Reductio ad absurdum.” Id. at 1101.
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have recused himself from the proceedings because his opinion
demonstrates prejudice against Barnes and his claims. We disagree.
Although any federal "justice, judge or magistrate . . . shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned," 28 U.S.C. § 455, adverse rulings
alone do not call into question a district judge's impartiality.
Liteky v. United States, 510 U.S. 540, ___, 114 S. Ct. 1147, 1157,
127 L. Ed. 2d 474 (1994).
There is nothing in the record to suggest that the district
court judge held any animus toward Barnes personally or that he was
otherwise prejudiced against Barnes or his claims. Therefore,
Barnes has shown no grounds for recusal.
For the foregoing reasons, we AFFIRM the district court’s
dismissal of Barnes’s petition.
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