USCA1 Opinion
November 29, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1716
JERRY LARRIVEE,
Plaintiff, Appellant,
v.
MCC, SUPT.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Jerry Larrivee on Memorandum of Law Seeking Probable Cause to
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Appeal.
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Per Curiam. Petitioner Jerry Larrivee seeks a
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certificate of probable cause to appeal the dismissal of his
28 U.S.C. 2254 habeas petition. For the reasons set forth
below, we deny his request. Petitioner was convicted, after
a jury trial, of burglary, robbery, theft of a firearm and
possession of a firearm by a felon. This was his second
conviction; both convictions arose out of robberies of
taxicab drivers. His conviction was affirmed on direct
appeal. See State v. Larrivee, 563 A.2d 1104 (Me. 1989).
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Petitioner's habeas petition contains four grounds
for relief: (1) withholding of information by the
prosecutor; (2) conviction obtained by the use of perjured
testimony of a witness; (3) conviction obtained by the use of
an inadmissable and involuntary confession; and (4)
conviction obtained by an unconstitutional in-court
identification. The district court referred the matter to a
magistrate judge. He rejected grounds one and two on the
basis that they had been disposed of on the merits in a prior
habeas petition.
As for grounds three and four, the magistrate judge
basically determined that these claims had been "exhausted"
in the sense that petitioner now would be barred from
pursuing any state remedy. However, the magistrate judge
went on, petitioner failed to show cause for this procedural
default. In addition, the magistrate judge stated that the
Fourth Amendment aspect of the admissability of petitioner's
confession was barred. See Stone v. Powell, 428 U.S. 465,
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494 (1976) (where habeas petitioner had a full opportunity to
litigate such a matter in state court, federal court is
barred from considering it in a 2254 petition).
We agree that petitioner may not pursue grounds one
and two in this habeas action. In addition to the reason
given by the district court, it is plain that these claims
have been procedurally defaulted. Petitioner presented both
of these grounds in a Maine R. Crim. P. 33 new trial motion
and in a post-conviction review petition. In rejecting the
claims in the latter proceeding, the state court held that
the issues of the use of perjured testimony and the
withholding of evidence from the defense were barred on the
basis that "[r]ather than relitigating [these] grounds in the
present proceeding, the proper procedure for contesting [the
Rule 33] decision is through direct appeal to the Maine Law
Court." Under Coleman v. Thompson, 111 S. Ct. 2546 (1991),
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if a "state court decline[s] to address a prisoner's federal
claims because the prisoner ha[s] failed to meet a state
procedural requirement," the prisoner must show cause and
prejudice to be entitled to federal habeas review. Id. at
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2554, 2565. Petitioner has not made this showing.1
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1. We also agree with the district court's reliance on Stone
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v. Powell to dismiss the claim that petitioner's confession
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was obtained in violation of the Fourth Amendment; petitioner
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In relation to grounds three and four, it appears
from the State's Response to the habeas petition that there
is a real question whether petitioner may have, in fact,
satisfied the exhaustion requirement. Rather than remand the
matter, however, we will assume exhaustion for the purposes
of disposing of petitioner's request for a certificate of
probable cause on the merits.
1. Involuntary Confession. Petitioner alleges
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that the following events rendered his confession involuntary
and, hence, inadmissable. After his arrest, petitioner
states that he was interrogated by four police officers for
two hours; one of the officers stood behind him at all times.
At some point, according to petitioner, he was informed that
the police had in their possession a statement from two
persons implicating him in the offense. According to
petitioner, there only was a statement from one individual.
Finally, upon being promised that if he confessed he would
not be prosecuted, petitioner narrated a statement. He
asserts that the only reason he did so was because of this
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promise. He further alleges that he was not allowed to read
over his statement in order to make changes.2
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has not alleged the denial of an opportunity to raise this
issue in state court.
2. Petitioner's assertion that the state trial court should
have held a hearing on the question of the voluntariness of
his confession once petitioner testified that it was made
under "the use of inducement" is without merit. In the
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To determine the question of voluntariness, we must
consider what effect the totality of the circumstances had on
petitioner's will. See Schneckloth v. Bustamonte, 412 U.S.
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218, 226-27 (1973). In the context of a habeas corpus
petition, petitioner has the burden of demonstrating that his
will was overborne by police tactics and that, as a result,
his confession was the product of a "`critically impaired'"
intellect. See Jenner v. Smith, 982 F.2d 329, 333 (8th Cir.)
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(citation omitted), cert. denied, 62 U.S.L.W. 3245 (1993);
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see also United States v. Lawrence, 889 F.2d 1187, 1189 (1st
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Cir. 1989) (a showing that psychological or physical pressure
overrode a defendant's will required). A confession is not
involuntary unless the police overreached by using coercive
tactics to elicit an incriminating statement from a
defendant. See Colorado v. Connelly, 479 U.S. 157, 163-64
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(1986).
Here, there is nothing to indicate that petitioner
was anything else but of normal intelligence. He does not
assert that he was illiterate or uneducated. Further, we
assume, because petitioner does not indicate to the contrary,
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absence of a motion to suppress the statement prior to trial
or an objection to its admission during trial, there must
exist "alerting circumstances" before a court has the duty to
sua sponte inquire into the voluntariness of a confession.
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See United States v. Santiago Soto, 871 F.2d 200, 202 (1st
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Cir.) (per curiam), cert. denied, 493 U.S. 831 (1989). No
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such circumstances exist here. Id. (duty to hold a hearing
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if it appears defendant is impaired physically or mentally)
(citing cases).
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that he had been advised of his Miranda rights upon his
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arrest. See Miranda v. Arizona, 384 U.S. 436 (1966). Thus,
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he was aware that any statement he made could be used against
him. See Evans v. Dowd, 932 F.2d 739, 742 (8th Cir.) (per
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curiam) (Where Miranda warnings were given, "it would be
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difficult to conclude that the police coerced the confession
while at the same time warning [defendant] that he need not
say anything."), cert. denied, 112 S. Ct. 385 (1991).
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Petitioner's most serious allegation is that the
police specifically promised that he would not be prosecuted
if he confessed. In Bram v. United States, 168 U.S. 532
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(1897), upon which petitioner relies, the Court held that a
confession is involuntary if it was obtained by any
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promises -- implied or direct, substantial or slight. Id. at
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542-43. However, Bram "has not been interpreted as a per se
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proscription against any promises made during interrogation."
Miller v. Fenton, 796 F.2d 598, 608 (3d Cir.), cert. denied,
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479 U.S. 989 (1986). The question is whether the promise, by
overcoming the will of petitioner, induced the confession;
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that is, "whether, under the totality of the circumstances,
the statement induced the confession, not whether it was, on
its face, a promise." Id. at 609 n.10.
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The bare statement that petitioner decided to
confess because of a police promise that he would not be
prosecuted, standing alone, does not satisfy this inquiry.
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What is missing are factual allegations of any specific
behavior or conversations. See United States v. Santiago
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Soto, 871 F.2d 200, 202 (1st Cir.) (per curiam) (no coercion
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where allegation that defendant was afraid of postal
inspectors not supported by "a description of any specific
behavior"), cert. denied, 493 U.S. 831 (1989). Further,
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there is no indication in any of petitioner's pleadings that
he was in a weakened state of mind due to psychological
pressures or that, due to the length of the questioning, the
use of physical punishments, or the threat of violence or
prolonged incarceration, he was no longer rational. Compare
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Davis v. North Carolina, 384 U.S. 737, 745-47, 752 (1966)
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(defendant held for sixteen days under repeated interrogation
without being told of rights; confession found to be
involuntary); Payne v. Arkansas, 356 U.S. 560, 567 (1958)
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(confession involuntary where defendant not advised of
rights, held incommunicado for three days, denied food for
long periods of time and threatened with violence).
We only note that courts have upheld as voluntary
confessions given in circumstances more coercive than alleged
here. See, e.g., Stein v. New York, 346 U.S. 156, 185 (1953)
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(12-hour interrogation stretched out over 32-hour period, not
so "oppressive as to overwhelm powers of resistance"); United
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States v. Kiendra, 663 F.2d 349, 351-52 (1st Cir. 1981)
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(confession held voluntary despite fact that defendant, with
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a ninth-grade education, held in solitary confinement for one
month before confession); United States v. Parker, 549 F.2d
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1217, 1220-21 (9th Cir.) (confession determined to be
voluntary even though defendant interrogated for four hours
and despite existence of dispute as to whether agents used
promises of drugs and physical force), cert. denied, 430 U.S.
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971 (1977). See generally Lawrence, 889 F.2d at 1190.
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2. Unconstitutional In-court Identification.
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Although not entirely clear, petitioner apparently bases this
claim on his assertion that he did not resemble either of the
descriptions of the perpetrators given to the police by the
victim. As a result, he asserts, the in-court identification
was impermissibly "tainted." Petitioner goes on to argue
that if the fact of the prior descriptions had been disclosed
to the defense, the "misidentification" never would have
occurred.
These allegations do not state a constitutional
claim. This is not the case where a suggestive pretrial
identification procedure "tainted" an in-court identification
during trial. See e.g., Stovall v. Denno, 388 U.S. 293, 302
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(1967) (individual showup in hospital room). Rather,
petitioner's concern appears to be evidentiary in nature.
That is, he argues that if he had had, at the time of trial,
the information concerning the victim's description,
petitioner could have impeached the victim's credibility.
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Because petitioner has procedurally defaulted the claim
concerning the failure of the prosecution to disclose
exculpatory material, this claim, by itself, is not
cognizable under 2254. See Neil v. Biggers, 409 U.S. 188,
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196-201 (1972).
The request for a certificate of probable cause is
denied. The motion to proceed in forma pauperis on appeal is
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moot.
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