Grant v. Warden, Maine State Prison

United States Court of Appeals
For the First Circuit

No. 09-2362

DAVID N. GRANT,

Petitioner, Appellant,

v.

WARDEN, MAINE STATE PRISON,

Respondent, Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Howard, Circuit Judges.

Christopher K. MacLean, with whom Elliot & MacLean, LLP, was
on brief, for appellant.
Donald W. Macomber, Assistant Attorney General, with whom
Janet T. Mills, Attorney General, was on brief, for appellee.

August 17, 2010
 LIPEZ, Circuit Judge. Petitioner David N. Grant was

convicted of the murder of his mother-in-law after a jury trial in

the Maine Superior Court. The Maine Supreme Judicial Court (SJC)

affirmed his conviction, see State v. Grant, 939 A.2d 93 (Me.

2008), and the federal district court denied his petition for writ

of habeas corpus. Grant appeals from the denial of his petition,

contending that the SJC's rejection of his claim that law

enforcement officers obtained incriminating statements from him in

violation of his Fifth Amendment right to remain silent was an

unreasonable application of clearly established federal law. After

careful consideration, we affirm.

I.

We summarize the facts as recounted by the SJC,

supplementing with additional facts from the record to the extent

they are consistent with the SJC's account. See Lynch v. Ficco,

438 F.3d 35, 39 (1st Cir. 2006). We "must 'accept the state court

findings of fact unless [Grant] convinces us, by clear and

convincing evidence, that they are in error.'" Id. (quoting

McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc)

(citing 28 U.S.C. § 2254(e)(1))). Grant does not contend on appeal

that the state court's factual findings were in error.

On the afternoon of November 30, 2004, Grant ingested

about a half-ounce of cocaine and then drove to the home of his

mother-in-law, Janet Hagerthy, in Farmingdale, Maine. Following an

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argument, Grant attacked Hagerthy, tied her hands behind her back,

loaded her into his pick-up truck, and dumped her in a field. Her

body was found the following day and a later autopsy indicated the

cause of death to be blunt force trauma and blood loss from stab

wounds.

Around 11:30 p.m. on the night of November 30, law

enforcement officers were dispatched to the scene of a single

vehicle accident, where they found Grant's pick-up truck in a ditch

off the side of the road. Grant was moving around in the cab of

the truck, waving a knife and repeatedly plunging it into his

throat. The officers shocked Grant several times with a taser to

subdue him, then wrestled away Grant's knife, handcuffed him, and

removed him from the truck. Grant was cuffed and secured to a long

board and transported by ambulance to Eastern Maine Medical Center,

where he had emergency surgery.

Grant's surgery was completed early on the morning of

December 1. In the hours after his surgery, detectives repeatedly

attempted to interview him. During the first three attempts, made

on the morning of December 1, Grant was not conscious or lucid

enough to make a statement. The first interview began at 4:26

a.m., just after Grant's surgery. Detectives explained that they

wanted to talk with Grant about his mother-in-law and attempted to

advise Grant of his rights under Miranda v. Arizona, 384 U.S. 436

(1966), but terminated the interview because he was not coherent.

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During the second interview attempt at 9:51 a.m., another

detective, David Tripp, explained that he was investigating the

Hagerthy case and advised Grant of his Miranda rights. Grant

responded that he did not want to talk and his throat was sore. At

11:45 a.m., Tripp returned and re-read Grant his Miranda rights.

Grant again said that he did not want to talk because his throat

was sore and indicated that he could not write because his hands

were sore.

Detective Tripp returned at 1:42 p.m. that afternoon and

administered a new set of Miranda warnings. Grant acknowledged his

rights and had the following exchange with Tripp:

Detective: Okay. Now, having all those rights
which I just explained to you in mind, do you
wish to answer questions at this time?
Grant: No.
Detective: What's that?
Grant: No.
Detective: No?
Grant: (inaudible) answer any questions.
Detective: What's that?
Grant: I don't want to answer any questions.
Detective: You don't want to answer any
questions?
Grant: No.

At that point, Tripp immediately stopped questioning Grant. Tripp

proceeded to explain that he was investigating the homicide of

Janet Hagerthy and that he and another detective from the Evidence

Response Team were going to collect evidence from Grant, including

fingernail clippings, a blood sample, and penile swabs. Tripp

showed Grant the warrant authorizing the search and stated, "So, um

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if you don't want to talk with me, that's fine. That's your right,

you don't have to talk with me. Um . . . we're gonna go ahead and

process the evidence." The detectives then executed a search of

Grant's body, during which they took hand and nail swabs, nail

clippings, pubic hair combings, a penile swab, and a blood sample.

At 9:03 a.m. the next morning, December 2, after learning

from Grant's nurses that he had not been given pain medication

since the previous afternoon, Tripp attempted another interview of

Grant. Tripp again advised Grant of his Miranda rights, and Grant

acknowledged his rights and agreed to talk with Tripp. After

answering several questions, Grant stated, "I don't know if I

should tell you without a lawyer. I just don't know, David

[Tripp], you know?" Tripp responded, "That's totally up to you."

When Grant repeated that he did not know, Tripp again explained,

And you know, that's why I read you the
Miranda rights. Um . . . it . . . it's
totally up to you. I'm not going to . . . to
tell you that you have to talk to me,
obviously, because you don't have to. . . . I
will tell you the last paragraph in that says
that . . . that you can talk to me and if you
decide to stop talking to me at any point,
that you can say I don't want to talk anymore.
Um . . . you know, so that's . . . that's
totally up to you and I want to be very clear
on that, David [Grant]. I'm not here twisting
your arm or anything. You know there are
certain things that we obviously . . . we
obviously know. . . You know that this is what
we do for a living.

Grant then continued to answer questions, and during the ensuing

interrogation he made a number of incriminating statements about

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his involvement in the killing of his mother-in-law.1 At 9:47

a.m., Grant stated, "I mean I know I've already told you enough to

hang me . . . but I think I'd really like to have a lawyer

present." Tripp promptly terminated the interrogation. Later that

day, Grant was released from the hospital and arrested. Throughout

Grant's hospital stay on December 1 and 2, law enforcement officers

were stationed in the hallway outside his room.

On December 29, 2004, a grand jury indicted Grant for

murder, see Me. Rev. Stat. Ann. tit. 17-A, § 201(1)(A). Prior to

trial, Grant moved to suppress his statements from the December 2

interview, contending that he had repeatedly invoked his Miranda

rights on December 1 and that his December 2 statements were

obtained in violation of his Fifth Amendment right to remain

silent. Following an evidentiary hearing, the motion court denied

his motion to suppress. The court concluded that Grant was not in

custody until after the 1:42 p.m. interview on December 1 when

detectives executed a search warrant on his body, and further found

that he did not unequivocally invoke his right to remain silent

during any of the December 1 interviews. A jury found Grant guilty

1
For example, Grant admitted that he had gone over to his
mother-in-law's house after ingesting about a half-ounce of cocaine
and they had had an argument. Grant then said to Tripp, "I really
don't know what happened. I just totally lost it, I don't know
why. I don't know what I've done. I know it's gotta be pretty
bad." He later stated, "I knew I was about . . . I knew I exploded
. . . I don't know what I did, Dave [Tripp], I really don't."

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of murder and the court sentenced him to a term of seventy years'

imprisonment.

The SJC affirmed Grant's conviction, holding that the

trial court did not err in denying Grant's motion to suppress his

December 2 statements. However, the SJC rejected the motion

court's reasoning and instead held, following an extensive analysis

of the facts, that Grant was in custody throughout his stay at the

hospital and that he unambiguously invoked his right to remain

silent during the 1:42 p.m. interview on December 1.2 Grant, 939

A.2d at 103-04. The court further reasoned that law enforcement

officers "scrupulously honored" Grant's invocation of his right to

remain silent before renewing interrogation the following morning,

and therefore his December 2 statements were properly admitted at

trial. Id. at 107 (citing Michigan v. Mosley, 423 U.S. 96 (1975)).

The SJC denied Grant's motion for reconsideration.

Grant filed a petition for writ of habeas corpus in

federal district court, see 28 U.S.C. § 2254, on the sole ground

that his December 2 statements were obtained in violation of his

Fifth Amendment right against self-incrimination. The district

2
The SJC further concluded that Grant's refusals to answer
questions during the 9:51 a.m. and 11:45 a.m. interviews on
December 1 were not unambiguous invocations of his Miranda rights
"because he indicated, after being asked, that he did not want to
answer questions due to his sore throat and hands." Grant, 939
A.2d at 103 n.6. Grant does not challenge that conclusion here and
therefore we do not address it.

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court denied relief, but granted a certificate of appealability.

See 28 U.S.C. § 2253(c). This appeal followed.

II.

A. Standard of Review

We review the district court's denial of Grant's habeas

petition de novo. Abrante v. St. Amand, 595 F.3d 11, 15 (1st Cir.

2010). Under the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), a federal court may not grant habeas relief as to

claims adjudicated on the merits in state court unless the state

court decision either (1) "was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States," or (2) "was

based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding." 28 U.S.C.

§ 2254(d)(1)-(2). Only the first prong of the AEDPA standard, 28

U.S.C. § 2254(d)(1), is at issue here.

A state court decision is "contrary to" clearly

established law if the court "arrives at a conclusion opposite to

that reached by [the Supreme Court] on a question of law or if the

state court decides a case differently than [the Supreme Court] on

a set of materially indistinguishable facts." Williams v. Taylor,

529 U.S. 362, 413 (2000). Alternatively, a state court

adjudication involves an "unreasonable application of" clearly

established law if the court "identifies the correct governing

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legal principle from [the Supreme Court's] decisions but

unreasonably applies that principle to the facts of the prisoner's

case." Id. at 413. Thus, the "unreasonable application" clause

"reduces to a question of whether the state court's derivation of

a case-specific rule from the [Supreme] Court's generally relevant

jurisprudence appears objectively reasonable." O'Laughlin v.

O'Brien, 568 F.3d 287, 299 (1st Cir. 2009) (quotation marks and

citations omitted). Under this deferential standard, "'the state

court's decision is not vulnerable unless it evinces some increment

of incorrectness beyond mere error.'" Abrante, 595 F.3d at 15

(quoting Foxworth v. St. Amand, 570 F.3d 414, 425 (1st Cir. 2009));

see also Williams, 529 U.S. at 411 ("[A] federal habeas court may

not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable.").

B. Clearly Established Federal Law

Grant's claim under AEDPA relies on the clearly

established law of Miranda and Mosley.3 In Miranda, the Supreme

Court held that once a suspect in custody invokes his right to

3
This case involves the question of when the police may renew
interrogation after a suspect's invocation of the right to remain
silent, not after a suspect's invocation of the right to counsel.
Thus, the Supreme Court's recent decision in Maryland v. Shatzer,
130 S. Ct. 1213 (2010), addressing the resumption of police
questioning after a suspect invokes the right to counsel, is not
relevant here.

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remain silent, law enforcement officers must cease interrogating

the suspect. 384 U.S. at 473-74. The Court reasoned that at that

point the suspect "has shown that he intends to exercise his Fifth

Amendment privilege," and therefore "any statement taken after the

person invokes his privilege cannot be other than the product of

compulsion, subtle or otherwise. Without the right to cut off

questioning, the setting of in-custody interrogation operates on

the individual to overcome free choice in producing a statement

after the privilege has been once invoked." Id. at 474.

In Mosley, the Supreme Court addressed a question left

unresolved by Miranda: when, if ever, law enforcement officers can

resume questioning after a suspect has invoked the right to remain

silent. The Court rejected a per se ban on further interrogation,

concluding that such a prohibition "would transform the Miranda

safeguards into wholly irrational obstacles to legitimate police

investigative activity, and deprive suspects of an opportunity to

make informed and intelligent assessments of their interests."

Mosley, 423 U.S. at 102. Instead, the Court reasoned that the

"critical safeguard" identified in Miranda was the suspect's

"'right to cut off questioning.'" Id. at 103 (quoting Miranda, 384

U.S. at 474). The requirement that law enforcement officers

respect the suspect's exercise of that right "counteracts the

coercive pressures of the custodial setting," allowing the suspect

to "control the time at which questioning occurs, the subjects

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discussed, and the duration of the interrogation." Id. at 104,

103. Therefore, "the admissibility of statements obtained after

the person in custody has decided to remain silent depends under

Miranda on whether his 'right to cut off questioning' was

'scrupulously honored.'" Id. at 104.

Applying this general standard, the Mosley Court examined

the circumstances leading to the defendant's confession and held

that law enforcement officers "fully respected" his right to cut

off questioning. Id. The Court found that after the defendant

invoked his right to remain silent, law enforcement officers

"immediately ceased the interrogation, resumed questioning only

after the passage of a significant period of time [more than two

hours] and the provision of a fresh set of warnings, and restricted

the second interrogation to a crime that had not been a subject of

the earlier interrogation." Id. at 106. Thus, this was not a case

in which officers failed to honor the suspect's decision to cut off

questioning "either by refusing to discontinue the interrogation

upon request or by persisting in repeated efforts to wear down his

resistance and make him change his mind." Id. at 105-06.

C. Analysis

Grant primarily contends that the SJC's conclusion that

law enforcement officers "scrupulously honored" his right to cut

off questioning was an unreasonable application of Miranda and

Mosley. We disagree, concluding that the SJC's application of the

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general standard announced in Mosley to the particular facts of

Grant's case falls within the broad limits of reasonableness. See

Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (noting that the

more general the standard established by the relevant Supreme Court

jurisprudence, "the more leeway courts have in reaching outcomes in

case-by-case determinations").

The SJC thoroughly analyzed whether law enforcement

officers scrupulously honored Grant's invocation of his right to

remain silent, focusing on the same considerations found

significant in Mosley. In particular, the court broke the Mosley

analysis into four factors, each of which it viewed as a

nondispositive consideration in the ultimate inquiry of whether

Grant's invocation was scrupulously honored: "(1) whether police

immediately cease the interrogation when the defendant invokes the

right to remain silent; (2) whether a significant amount of time

passes before questioning is resumed; (3) whether fresh Miranda

warnings are provided; and (4) whether the later interrogation is

restricted to matters distinct from the former." Grant, 939 A.2d

at 104-105 (internal quotation marks omitted).

The SJC found that several relevant factors weighed in

favor of admission of Grant's December 2 statements. After Grant

invoked his right to remain silent during the 1:42 p.m.

interrogation on December 1, Detective Tripp immediately ceased

questioning and did not further pressure Grant to speak. Tripp did

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not attempt to resume questioning until the following day, at which

time he administered a full new set of Miranda warnings. A

"significant period of time," over nineteen hours, elapsed between

the 1:42 p.m. invocation and the resumption of questioning at 9:03

a.m. the next day. See Mosley, 423 U.S. at 106 (finding two hours

to be a "significant period of time"). During this nineteen-hour

interval, Grant was recovering from injuries but was not given any

additional pain medication, allaying concerns that medication

interfered with his ability to clearly evaluate his circumstances.

On the other hand, the SJC acknowledged that the 1:42 p.m.

interrogation and the 9:03 a.m. interrogation the next day involved

precisely the same issues, a factor that weighed against admission

of the December 2 statements.

After examining the circumstances leading to Grant's

incriminating statements, the SJC concluded that "taken as a whole,

the conduct of the police did scrupulously honor Grant's

invocation" of his right to remain silent. Grant, 939 A.2d at 107.

We cannot say that the SJC's weighing of the nondispositive factors

discussed in Mosley was objectively unreasonable. See, e.g.,

United States v. Lugo Guerrero, 524 F.3d 5, 12 (1st Cir. 2008)

(holding post-invocation statements admissible under Mosley where

officers immediately stopped questioning after invocation,

conducted second interview nearly four hours later, gave defendant

a new set of Miranda warnings, and treated defendant well at all

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times, even though first and second interviews concerned same

crime); United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir.

1998) (finding post-invocation statements admissible where officer

stopped questioning after defendant indicated unwillingness to

speak, another officer resumed questioning several hours later

after asking defendant if he remembered his rights, and there was

no "undue pressure" on defendant to talk, but first interview was

related to same crime as second).

Grant contends that the SJC's conclusion was unreasonable

in light of evidence that Tripp "took steps to undermine Grant's

decision to invoke his right to remain silent," a relevant

consideration under Mosley. Grant emphasizes that after he

declined to answer questions during the 1:42 p.m. interview, Tripp

explained that he would be executing a search of Grant's body,

showed Grant the search warrant, and then executed the search.

Grant also stresses that after he expressed doubts about whether to

continue answering questions during the 9:03 a.m. interview, Tripp

responded, "I'm not here twisting your arm or anything. You know

there are certain things that we obviously . . . we obviously

know . . . . You know that this is what we do for a living."

However, the SJC expressly concluded that after Grant

invoked his right to remain silent during the 1:42 p.m. interview,

the detective promptly ceased the interrogation "without further

badgering or pressure to speak." Grant, 939 A.2d at 106. Viewing

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Tripp's statements and actions in context, we cannot say the SJC

was unreasonable in concluding that Tripp did not try to wear down

Grant's resistance or pressure him to speak, but instead fully

respected his invocation of the right to remain silent. Cf. United

States v. Barone, 968 F.2d 1378, 1384 (1st Cir. 1992) (excluding

post-invocation statements where officers "repeatedly spoke to

[defendant] for the purpose of changing his mind, failed to provide

new Miranda warnings, applied pressure by emphasizing the danger he

would face in Boston if he did not cooperate, and took advantage of

a long delay in arraignment").

Grant further contends that the SJC's adjudication of his

Fifth Amendment claim "was an unreasonable application of Mosley as

interpreted by the First Circuit."4 He argues that in evaluating

whether law enforcement officers "scrupulously honored" his

invocation of the right to remain silent, the SJC relied

exclusively on the four factors enumerated in its opinion. Grant

contends that the SJC's reliance entirely on these four factors is

inconsistent with First Circuit decisions, which have described the

4
We note that the certificate of appealability (COA) granted
by the district court framed this issue in similar terms. The COA
was granted as to two issues:

1. Whether the Law Court's factor analysis
approach was an unreasonable application of
Mosley as interpreted by the First Circuit;
and,
2. Whether the Law Court erred in holding that
Mr. Grant's Miranda rights were scrupulously
honored by police in accordance with Mosley.

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factors highlighted in Mosley as part of a "totality of the

circumstances" analysis of whether the defendant's right to cut off

questioning was scrupulously honored. See, e.g., Lugo Guerrero,

524 F.3d at 12; United States v. Thongsophaporn, 503 F.3d 51, 57

(1st Cir. 2007); Barone, 968 F.2d at 1384.

However, this line of argument rests on a mistaken

premise. The relevant question under AEDPA is not whether the

SJC's decision involved an unreasonable application of Mosley "as

interpreted by the First Circuit," but whether the SJC unreasonably

applied "clearly established Federal law, as determined by the

Supreme Court of the United States." 28 U.S.C. § 2254(d)(1)

(emphasis added). Under AEDPA, "it is not an unreasonable

application of clearly established Federal law for a state court to

decline to apply a specific legal rule that has not been squarely

established by" the Supreme Court. Knowles v. Mirzayance, 129 S.

Ct. 1411, 1419 (2009) (quotation marks and citations omitted).5

5
Of course, this is not to say that decisions from this and
other courts cannot inform our analysis under 28 U.S.C.
§ 2254(d)(1). For example, "[d]ecisions from the lower federal
courts may help inform the AEDPA analysis to the extent that they
state the clearly established federal law determined by the Supreme
Court." Aspen v. Bissonnette, 480 F.3d 571, 574 n.1 (1st Cir.
2007). In addition, "factually similar cases from the lower
federal courts may inform" a determination of whether a state court
decision involves an unreasonable application of clearly
established Supreme Court jurisprudence, "providing a valuable
reference point when the relevant Supreme Court rule is broad and
applies to a kaleidoscopic array of fact patterns." Rashad v.
Walsh, 300 F.3d 27, 35 (1st Cir. 2002); see also Phoenix v.
Matesanz, 233 F.3d 77, 83 n.3 (1st Cir. 2000) ("Although decisions
issuing from this Court are not 'clearly established' for the

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 We have characterized Mosley as applying a totality of

the circumstances test to the question of whether the defendant's

invocation of the right to remain silent was scrupulously honored.

We think that is a fair reading of Mosley in light of the language

that introduces the Supreme Court's analysis of the specific facts

relevant in that case. There, the Supreme Court stated that "[a]

review of the circumstances leading to Mosley's confession reveals

that his 'right to cut off questioning' was fully respected in this

case." Mosley, 423 U.S. at 104. However, the Supreme Court has

never expressly characterized its test as a totality of the

circumstances test. The SJC chose to read Mosley as setting forth

a four-factor test, and noted that "[e]ven after the First Circuit

indicated that examining the totality of the circumstances was

appropriate, we have relied entirely on the identified factors."

Grant, 939 A.2d at 105 n.8. Despite our own reading, we cannot say

that the SJC's application of Mosley was unreasonable.

Moreover, Grant has not shown that the SJC's four-factor

approach unreasonably constrained its analysis of the ultimate

question under Mosley: whether Grant's right to cut off questioning

was scrupulously honored. As discussed above, the SJC examined the

circumstances leading up to Grant's incriminating December 2

statements, finding that Tripp promptly stopped the interrogation

purposes of § 2254(d)(1) because they do not issue from the Supreme
Court, they provide significant insight on what constitutes
reasonableness for a particular fact pattern.").

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after Grant's December 1 invocation, did not further badger or

pressure Grant to answer questions, resumed questioning over

nineteen hours later after administering a new set of Miranda

warnings, and confirmed that Grant had not been given additional

medication during this interval. The SJC concluded that these

circumstances demonstrated that law enforcement officers fully

honored Grant's invocation. Grant, 939 A.2d at 107. Grant argues

generally that a four-factor approach "forecloses any consideration

of the surrounding circumstances," but he does not point to any

relevant factual circumstances that the SJC failed to consider in

its analysis. Thus, regardless of whether the SJC described its

analysis as a "totality of the circumstances" test or a four-factor

test, its conclusion was not an unreasonable application of

Mosley.6

III.

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.

6
Grant also suggests that the SJC took a purely "numerical
approach" to the Mosley analysis and concluded that "three out of
four factors favoring the state equals scrupulous honoring." This
is not an accurate characterization of the SJC's decision. The SJC
made clear that the considerations found significant in Mosley "are
considered as nondispositive factors that militate in favor of, or
against, a conclusion that a suspect's invocation has been
scrupulously honored," and noted that the substantive analysis was
the same even if it was broken into fewer or more than four
factors. Grant, 939 A.2d at 105 & n.7.

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