[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-12835 SEPTEMBER 30, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-20782-CV-MGC
OSMEL ALVAREZ,
Petitioner-Appellant,
versus
WALTER A. McNEIL, Secretary,
Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 30, 2009)
Before EDMONDSON, BLACK and SILER,* Circuit Judges.
PER CURIAM:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
Osmel Alvarez, a Florida prisoner serving a life sentence for armed sexual
battery, armed aggravated battery, armed kidnaping, and impersonating a police
officer while committing a felony with a firearm, appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas corpus petition. He argues that, because his
Miranda rights were violated, the trial court erred when it denied his motion to
suppress his confession. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).
We affirm the judgment of the district court.
Alvarez argues that his statements to the police and taped confession were
not freely and voluntarily given. He further argues that he did not knowingly
waive his right to have an attorney present when he made incriminating statements
to the detectives. He asserts that his confession was the result of the detectives’
failure to scrupulously honor his unequivocal request for counsel by their initiation
of further interrogation after he invoked his right to counsel.
The detectives first asked Alvarez whether he knew why he had been
arrested. Alvarez responded that he had been arrested for leaving the scene of an
accident, which was incorrect. After the detectives read Alvarez his Miranda
rights, Alvarez unequivocally invoked his Fifth, Sixth, and Fourteenth Amendment
rights.
The detectives next informed Alvarez that he was charged with sexual
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battery, kidnaping, and attempted murder. Thereafter, Alvarez spontaneously
made several incriminating statements. The detectives replied that, because he had
invoked his Miranda rights, they could not speak to him about the case. The
detectives then left the interrogation room.
When they returned, the detectives again read Alvarez his Miranda rights.
At that time, Alvarez unequivocally waived his Miranda rights, and the detectives
taped his confession.
At trial, Alvarez moved to suppress his incriminating statements and taped
confession. The trial court denied his suppression motion, finding that the
detectives’ notification to Alvarez of the pending charges against him did not
constitute interrogation, and that Alvarez initiated any further communication with
the detectives. The state appellate court affirmed. Subsequently, the district court
denied Alvarez’s habeas petition.
We review the district court’s denial of Alvarez’s habeas petition de novo.
Wright v. Hopper, 169 F.3d 695, 701 (11th Cir. 1999). “The district court’s factual
findings are reviewed for clear error, while mixed questions of law and fact are
reviewed de novo.” McNair v. Campbell, 41 F.3d 1291, 1297 (11th Cir. 2005).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA):
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
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with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim--
(1) resulted in a decision that 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) resulted in a decision that 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).
A state court’s decision is “contrary to” clearly established federal law if it
either (1) contradicts a rule established by the Supreme Court or (2) contradicts the
holding of a Supreme Court case with materially indistinguishable facts. Osborne
v. Terry, 466 F.3d 1298, 1305 (11th Cir. 2006). A state court’s decision is an
“unreasonable application” of federal law “if it identifies the correct legal rule from
Supreme Court case law but unreasonably applies that rule to the face of the
petitioner’s case.” Id.
Under AEDPA, a state court’s determinations of facts are “presumed to be
correct,” and the habeas petitioner has “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
“However, the statutory presumption of correctness applies only to findings of fact
made by the state court, not to mixed determinations of law and fact.” Parker v.
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Head, 244 F.3d 831, 836 (11th Cir. 2001).
An accused has a Fifth and Fourteenth Amendment right to have counsel
present during custodial interrogation. Edwards v. Arizona, 451 U.S. 477, 481-82,
101 S.Ct. 1880, 1883 (1981). “[W]hen an accused has invoked his right to have
counsel present during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further police-initiated
custodial interrogation even if he has been advised of his rights.” Id. at 484, 101
S.Ct. at 1884-85. Furthermore, “an accused, . . . having expressed his desire to
deal with the police only through counsel, is not subject to further interrogation by
the authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the
police.” Id. at 484-85, 101 S.Ct. at 1885. The term “interrogation” refers “to any
words or actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291,
301, 100 S.Ct. 1682, 1689-90 (1980) (citation omitted).
The state court’s finding that the detectives could constitutionally inform
Alvarez of the charges pending against him is a mixed question of fact and law
which is reviewed de novo. See Parker, 244 F.3d at 836. Informing a person in
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custody of the charges that he faces is normally attendant to arrest and custody and
does not constitute interrogation. See Innis, 446 U.S. at 301, 100 S.Ct. at 1689-90.
Moreover, the state court made a factual finding that Alvarez initiated
further communication with the police, and Alvarez has failed to demonstrate this
finding was an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2). Indeed, in his
attempt to demonstrate the unreasonableness of the state court’s factual findings,
Alvarez primarily relies on the contents of a deposition given by Detective Robert
Brown in the case; however, this deposition testimony was not admitted into
evidence at the pretrial suppression hearing.
The state court’s affirmance of the denial of the suppression motion was not
an unreasonable application of federal law. See Osborne, 466 F.3d at 1305.
Accordingly, the district court did not err in denying Alvarez’s habeas petition.
AFFIRMED.
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