Johnson v. Harkleroad, (4th Cir. 2004)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

W AYNE T HOMAS J OHNSON , Petitioner-Appellant,

v. No. 03-6620 S IDNEY H ARKLEROAD , 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 Affirmed by unpublished opinion.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

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Unpublished opinions are not binding precedent in this circuit.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

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,

9. 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

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,

0, 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

, 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. 3). Where a state court resolved the merits of a claim for post-

conviction relief, federal habeas relief is not available unless the state

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,

  (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 Ð he gave a verbal confession prior to receiving Miranda warnings and

provided a more detailed written statement after being Mirandized Ð

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 ,

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

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. (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

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-

(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

-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)

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.

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 Ð where

a more lenient standard of review is applied than on habeas review

Ð 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,

(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-

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

, 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

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.

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 Ð which is trou-

bling, but not unconstitutional Ð 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-

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.").

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

police 4 might demonstrate custody, in light of the totality of the cir-

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.

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. 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 Ð both

resulting in his receiving the highest prior conviction levels Ð according

to the State of North Carolina. J.A. at 372-73. 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 ,

U.S. 218, 225 (1973)); see also Dickerson , 530 U.S. at 434,

because of coercive police conduct, Colorado v. Spring , 479 U.S. , 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. . . . 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."

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 ,

2 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,

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."

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

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