Giancana v. Nooth, No. 3:2009cv00599 - Document 53 (D. Or. 2012)
Court Description: OPINION AND ORDER. The Amended Petition for Writ of Habeas Corpus 40 is DENIED, and this case is DISMISSED, with prejudice. A certificate of appealability is granted as to the following issue only: Whether petitioner's Fifth and Fourteenth Amendment rights were violated when the trial court concluded he did not unequivocally or unambiguously invoke his right to counsel. See 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. Signed on 6/8/2012 by Judge Robert E. Jones. (gw)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION FRANCIS VITO GIANCANA, 3: 09-cv-00599-JO Petitioner, v. OPINION AND ORDER MARK NOOTH, Superintendent, Snake River Correctional Institution, Respondent. Noel Grefenson Noel Grefenson, P.C. 1415 Liberty Street SE Salem, Oregon 97302 Attorney for Petitioner John R. Kroger Attorney Genera l Jacqueline Kamins Assistant Attorney General Department of Justice 1162 Court Street NE Salem, Oregon 97301 Attorneys for Respondent 1 - OPINION AND ORDER JONES, District Judge. Petitioner 28 U.S.C. brings 2254 § in this habeas which he corpus challenges action his pursuant convictions sen t ence for unlawful sexual penetration and sexual abuse. reasons set forth below, Corp"Js [40J is denied, to and For the the Amended Petition for Writ of Habeas and Judgment is entered dismissing this action with prejudice. BACKGROUND October 10, 2001, the Clackamas County Grand Jury returned O~ an indictment charging petitioner with three counts of Unlawful Sexual Penetration in the First Degree, six counts of Unlawf ul Sexual Penetration in the Second Degree, and ten counts of Sexual Abuse in the First Degree. Respondent's Exhibit 102. A jury convicted petitioner on all counts except one count of Unlawful Sexual Penetration in the Second Degree and the sentencing court imposed a sentence totaling 275 months. Respondent's Exhibit 101. Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed the trial court without written opinion, and the Oregon Supreme Court denied review. Or. App. 733, 118 P.3d 281 (2005) rev. State v. Giancana, 200 denied, 339 Or. 700, 127 P.3d 1203 (2005); Respondent's Exhibits 103-109. Petitioner filed for post-conviction relief court. The PCR trial court denied relief. in state Giancana v. Malheur County Circuit Court Case No. 06-03-5022M. 2 - OPINION AND ORDER ("PCR") Hill, On appeal, the Oregon Court of Appeals affirmed the PCR court wi thout written opinion, and the Oregon Supreme Court denied review. Hill, 222 Or. App. 605, 195 P.3d 923 (2008), Giancana v. rev. denied, 345 Or. 460, 200 P.3d 146 (2008); Respondent's Exhibits 128-132. On June 1, 2009, petitioner filed this action. In his Amended Petition for Writ of Habeas Corpus, he raises the following ground for relief: Ground One: Petitioner suffered a violation of his right, under the Fifth and Fourteenth Amendment to the United States Constitution, to have counsel present during a custodial interrogation by officers of the Lake Oswego Police Department. As a result of these violations, officers elicited statements from petitioner and seized evidence which derived from the illegal interrogation which was introduced against petitioner at trial. Adjudication of petitioner's motion to suppress which challenged this violation of his federal constitutional rights resulted in [a] state court adjudication which is contrary to and involves an unreasonable application of controlling Supreme Court precedent. See Edwards v. Arizona, 451 US 477, 484-485, 101 S Ct 1880, 1885, 68 L Ed 2d 378 (1981), Minnick v. Ivlississippi, 498 US 146, 154, 111 S Ct 486, 112 L Ed 2d 489 (1990), Oregon v. Bradshaw, 462 US 1039, 1044, 103 S Ct 2830, 77 L Ed 2d 405 (1983), Davis v. United States, 512 US 452, 459, 114 S Ct 2350, 129 L Ed 2d 362 (1994), Michigan v. Jackson, 475 US 625, 633, 106 S Ct 1404, 89 L Ed 2d 631 (1986), Arizona v. Roberson, 486 US 675, 682, 100 L Ed 2d 704, 108 S Ct 2093 (1988) and Smith v. Illinois, 469 US 91, 105 S Ct 490, 83 L Ed 2d 488 (1984). Supporting Facts: On October 7, 2001, Lake Oswego Officer John Harrington subj ected peti tioner to a custodial interrogation during which petitioner unequivocally invoked his right to counsel, by asking "May I cal l an attorney?" In violation of petitioner's rights under the Fifth and Fourteenth Amendments to the United States Constitution, Officer Harrington failed to honor peti tioner' s invocation and cease conversing with him. Instead, Officer Harrington continued to speak wi th and question peti tioner under the guise of clarifying his invocation. This violation of petitioner's rights resulted in his making incriminating statements introduced against him at trial. Furthermore, 3 - OPINION A~D ORDER Officer Harrington exploited the illegality of petitioner's post-invocation statements to obtain petitioner's consent to search his residence. With that consent, Officer Harrington and other officers searched petitioner's residence and seized evidence which the state introduced against him at trial. The post-invocation statements and evidence taken from petitioner were a material factor leading to his conviction and imprisonment. Respondent asks the Court to deny relief on the Petition on the basis that the claim raised therein: by the year Antite~rorism sta~ute Amended (1) is barred and Effective Death Penalty Act ("AEDPA") one- of limitations; and (2) was denied on the merits in a sta t e co u rt decision entitled to deference. DISCUSSION I. Timeliness and Relation Back Petitioner concedes that he filed his Amended Petition well after the one-year AEDPA limitations period had expired. Nevertheless, he maintains the claim raised in the Amended Petition is timely because it relates back to his original, timely filed, pro se federal habeas petition. A new claim in an amended petition that is filed after the expiration of the one-year limitation period will be timely only if the new claim relates back to the filing of a claim in a timely filed pleading under Rule IS (c) (2) Procedure, of the Federal Ru l es of Civi l on the basis that the claim arises out of "the same conduct, transaction pleading. Mayle v. or occurrence Felix, II 545 U.S. as 644 a claim (2005). in the timely In Mayle, the Supreme Court held that habeas claims in an amended petition do not 4 - OPINION AND ORDER arise out of "the claims in the same original conduct, transaction petition merely or because challenge the same trial, conviction or sentence. 64. occurrence" the claims as all 545 u.s. at 655 Rat h er, under the construction of the rule approved in Mayle, Rule 15 (c) (2 ) permits relation back of habeas claims asserted in an amended petition "only when the claims added by amendment arise from the same core facts as the timely filed claims, and not when the new claims depend upon events separate in 'both time and type' form the originally raised episodes." Id . at 657. In this regard, the reviewing court looks to "the existence of a common operative facts' 'core of uniting the origina l and newly asserted claims." A claim that merely adds "a new legal theory tied to the same operative facts as those initially alleged" will relate back and be timely. Id. at 659 & n.5. In this case, petitioner's original petition al:eged he was "denied the right to due process and equal protection of the law in violation of the Sixth and States Constitution Fourteenth Amendments to the Uni ted when the Trial Court applied an improper standard to grant Petitioner's Motion for Judgment of Acquittal of Petitioner's Motion to Compel the State Petitioner's Motion to Suppress Evidence." to Elect denying and Petition [1], pp. 12-13 (emphasis added). The original peti tion further alleges trial in court erred Evidence at trial denying Peti tioner' s to convict Petitioner." 5 - OPINION AND ORDER Motion Id. to at 13. "[tJ he Suppress (emphasis added). si~gle In his amended petition, petitioner raises a claim alleging that the trial court's denial of his motion to suppress evidence derived from an illegal police interrogation in violation of his rights Fifth and Fourteenth Amendme n ts was contrary to ~nder and involved and unreasonable application of control l ing Supreme Court precedent. These claims derive from the same core of operative facts, facts surro unding police questioning of petitioner and the i.e., trial court's resolution of petitioner's evidence g l eaned from that interrogation. motion Thus, to suppress the Court finds the claim set forth in petitioner's amended petition relates back to his timely filed original petition and it will therefore consider this claim on the merits. II. Merits A. Standard of Review An application for writ of habeas corpus shall not be granted unless adjudication decision ttat was: of the claim in state court resulted in a (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the Dni ted States," or "based (2) on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." A state court's petitioner bears findings the of burden 6 - OPINION AND ORDER fact of 28 U.S.C. are pres umed rebutting the § 2254 (d). correct presumption and of correctness 2254 by clear and convincing 28 evidence. U.S.C. § (1). (e) A state established court decision '8recedent if is the "contrary state court clearly to applies a rule t~at the governing law set forth in [the Supreme Court's ] c o ~tradicts cases" or " i f the state court confronts a set of facts that are materially and from a decision of [the Supreme] Cou rt indisting~ishable nevertheless precedent." arrives at a resu l t . :. . :.W-=i:. . :l:. .=l=-=l=- =a' =m:..:. :,=s_v..:. . . . :. . ------,T=-a=.. . . v-=l:. . : :o:. =.r , 52 9 different U. S. 3 62 , from 405- 06 [ that] (200 0 ) . U:1der the " u nreasonable application" clause, a federal habeas court may grant re l ief "if the state court principle from applies Id. that at 413. state court Id. at 410. the correct legal decisi o ns, but unreasonably [the Supreme Court's] principle to the facts of the prisoner's decision to be more than incorrect or erroneous. The state court's application of clearly established Id. at 409. Analysis Petitioner contends detectives impermissibly question him after he unequivocally invoked his right case." The "unreasonable application" clause requires the law must be objectively unreasonable. B. ide~tifies to counsel during a custodial continued to Fifth Amendment interroga t ion. Respondent Baintains that the trial court, in its resolution of petitioner's pre-trial motion to suppress, comprehensively addressed this issue. 7 - OPINION AND ORDER After holding a lengthy suppression hearing and making extensive factual findings, 1. that court denied relief on the motion. Legal Standards - Invocation of Right to Counsel When a person in custody is subject to interrogation, he must first be read his Miranda rights in obtained to be admissible in court. 436, 467-68 this rule may not be admitted for trial." (1966) order for the information Miranda v. Arizona, 384 U.S. "Statements elici ted in noncompliance wi th Stansbury v. California, certain purposes 511 U.S. 318, in criminal 322 (1994) (per ciJr iam) . Police are not required to obtain an express waiver of Miranda rights before proceeding with interrogation. Butler, 441 U.S. 369, 373 North Carolina v. (1979) (holding that courts can. infer a waiver of Miranda rights "from the actions and words of the person interrogated"). If at any point during the interrogation a suspect invokes his right to counsel, however, all questioni n g must cease and may not resume in the absence of counsel unless the suspect himself waives the Edwards v. Arizona, Illinois, 469 U.S. right by (1994) . inquiry. further discussions. 451 U.S. 477, 484-85 (1981); see also Smith v. 91, 95 (1984). Whether t h e accused has obj ecti ve initiating Davis v. invoked his right to counsel is an United States, 512 U.S. "A suspect must unambiguously request counsel." 452, 459 Id. He must articulate his desire to have counsel present sufficiently 8 - OPINION AND ORDER clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. Id. At a mi:1imum, the suspect must make some stateme~t that can reasonably be construed to be an expression of a desire for the assistance of an attorney. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to cocnsel, our precedents do not require cessation of questioning. Id. (inLernal quotations and citations omitted). include the words deemed ambiguous. "might," ~, "maybe," Davis, or Utterances which "perhaps" 512 u.s. at 455 are ("Maybe I should talk to a lawyer" held ambiguous); United States v. F.3d 1179, If a 1187 (9th Cir. equivocal police may, questions. Davis, but are 512 U.s. Barrett, 479 U.s. 523, 535 otherwise 2005). ambiguous not at Younger, 398 request is ambiguous or required, 461-62; generally to ask clarifying see also Connecticut v. (1987) (" [C] ircumstances may clarify an [invocation ] .") (Brennan, J., concurring in judgment) . "[A] statement either is such an assertion of the right to counselor it is not." u.s. at responses 97-98). to Davis, 512 u.s. at 459 (quoting Smith, 469 For further this reason, an accused's postrequest po l ice questioning cannot be used to cast doubt on the clarity of the initial request. Smith, 469 U.S. at 100 (explaining that subsequent statements are relevant only to the question whether tte accused has 9 - OPINION AND ORDER wai ved the right he invoked). Accordingly, a peti tioner' s postrequest responses shou l d not be used to find that he invoked his right and quickly waived it again because in order for such a waiver to be found, had to cease for a period of time. the interrogation See Snith, 469 u.S. at 98 ("[W]e accordi.ngly have emphasized that a valid waiver "cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation.") (quoting Edwards, 451 u.S. at 484 ) ). This rule exists requests counsel, that ~he to discourage police, after from asking additional questions defendant might be induced to say an "in the hope something retrospective doubt on his initial statement .... " accused casting Id. at 99. In Smith, the suspect made a plain request for counsel while receiving his Miranda warnings followed closely by other statements in which he essentially agreed to talk to police without counsel present. The state supreme court found the statements, considered as a totality, to be ambiguous and determined that the accused had not invoked the right to counsel. The Supreme Court reversed, holding that "an accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself." Under Smith, it Id. at 100 (emphasis in original ) . is irrelevant whether further police questioning seeks "clarifying" or "material" information. Smith, 469 u.S. at 98 ("Where nothing about the request for counselor the 10 - OPINION AND ORDER circumstances leading up to the request would render it ambiguous, all questioning must In cease.") Smith, the officer simply contin u ed giving the suspect his Miranda rights and those contin u ed questions were found to constitute impermissible "police-initiated custodial interrogation." 2. As noted rd. at 98. Application above, a state court acts contrary to clearly established federa l law if it app l ies a legal rule that contradicts prior Supreme Court holdings. 362, 412-13 (2000). See W ill iams v. Taylor, 529 u. S. Therefore, whether the trial court's decision here applied a legal rule contradictory to the holdings of Smith hinges on whether petitioner made a request for counsel that was clear and unambiguous. address "the However, circumstances in Smith was "narrow" a n d did not which an accused's request for counsel may be characterized as ambiguous or equivocal as a resu l t of events r:-equest preceding itself," equivocation. The request the or of nuances consequences of inherent such in the ambiguity or Smith, 469 u.S. at 99-100. central determination, or the issue that the here is totality whether of the trial circumstances court's rendered petitioner's request "May I call an attorney?" ambiguous and that he did not invoke his right to counsel, was contradictory to, or an unreasonable application of, Supreme Court precedent, i.e., whether the trial court could reasonably find that a reasonable officer in 11 - OPINION AND ORDER the circumstances "merely" a could question or understand to be peti tioner' s otherwise request ambiguous due to to be any preceding statements or nuances in the request itself. The Ninth Circuit recently upheld as a reasonable application of clearly established Supreme Court precedent a state court's finding that a suspect's pre-Miranda question asking whether he was entitled to a lawyer was not an actual invocation of the right to counsel. Sessoms v. Runnels, 650 F.3d 1276, 1288 (2011). In so holding, the court noted: When Sessoms asks if he is entitled to an attorney, his inflection, body language, and manner support the state court's conclusion that he was completely unaware if he eve~ had a right to counsel under the circumstances and was only asking if he could request counsel. Id. at 1288. Sessoms, however, is distinguishable from petitioner's case because there the accused asked whether he was entitled to a lawyer before he was advised of h i s Miranda rights to that effect. In contrast here, petitioner had been advised of his Miranda rights, had indicated that he understood them, and had given an implied waiver of those rights by continuing to talk to the officers. Butler, rights) . 441 U.S. at 373 (suspect can implicitly waive See Miranda The requirement in Davis that a suspect articulate his desire for counsel clearly enough that a reasonable police officer in the circumstances WOJld understand the 12 - OPINION AND ORDER state~ent to be a request for an attorr-ey applies only to post-waiver requests. See Sessoms, 650 F.3d at 1283 (citing Davis, 512 u.S. at 460-61). Notably, the trial court found t h at the detectives' version of what transpired from t h e time of petitioner's arrest at h is home thro ug h his interrogation at the police station to be consistent a nd credible. W ile petitioner gave h a sigJli::=icantly different version of events at h is suppression heari n g which the tr i al court found incredible, credibility finding convincing evidence he as has to in his failed the to history rebut the of state events by briefs before this Court. court's clear and Briefly, detectives described the relevant events as fo l l ows: Officers arrested petitioner at his home as he left his house for work. ¢ Officers advised petitioner of his Miranda rights and he acknowledged that he understood them. Detective Harrington then asked petitioner for permission to search his house to look for i mplements related to the victims' allegations. Petitioner stated that he would have to call his wife or "somebody" before letting officers search the house. Detective Harrington responded that they would deal with the search issue later on. Petitioner was transported to the Lake Oswego Police Department. The transporting officers reported that petitioner had not said anything en route to the po l ice station. Petitioner's handcuffs were removed and he was put in an interview room. After answering basic biographica l questions, petitioner continued to participate in the interview and answer 13 - OPINION AND ORDER numerous questions related to the allegations him. He consistently denied any wrong doing. against Some time into the interview, and after emphatically denying that he had sexual intercourse with the victim, petitioner told detectives that he wanted to call a family member. In response, Detective Harrington advised petitioner that he (Detective Harrington) wanted to search petitioner's ~ouse for certain items he believed were still there and t~at if petitioner could wait to call a family member, no one could later accuse peti tioner of having someone remove t h ose items. The detective testified that petitioner agreed to wait until after the interview and maintained there was nothing illegal in his house. Questioning continued and following an exchange related to petitioner's cessation of contact with the victim, petitioner stated "The amazing thing is that if you want to talk to an attorney in a case like this, you automatically seem guilty," followed by "May I call an attorney?" Detective Harrington then assured petitioner that he had the right to talk to an attorney, that he would make a phone available, and that if petitioner wanted to talk to an attorney, he would end the interview and allow petitioner to contact counsel. The detective then stated "If you merely want to call a faf1ily member to inform them that you've been arrested, I would prefer you wait on that," and again told petitioner that by waiting no one could later argue items from petitioner's home had been removed or tampered with. Detective Harrington then asked petitioner "Do you wish to contact an attorney and seek counsel, or do you wish to proceed with us asking questions." Petitioner responded that he wanted to keep talking to de~ectives. Transcript Designation - Part A, pp. 16-42. In denying petitioner's motion to suppress, the trial court reasoned as follows: We don't yet have an ironclad rule that no interrogation by a police officer can take place without the presence 14 - OPINION AND ORDER of an attorney, and so we have rules which require t h at if an attorney is desired, then the defendant whose right it is to have that attorney has to make that clear and has to -- that has to be invoked in some matter. I do not believe that there was any mention by Mr. Giancana of an attorney until the discussion wh ich took place in the interrogation room at the police station about the concern on Mr. Giancana's part that in this kind of case a request for an attorney makes one l ook guilty. Now, obviously the fact that that even came up, obviously and I think fairly suggesLs that it is likely that that's something that Mr. Giancana had been considering as he thought about this startling and u n u sual event of being arrested, that -- you know, that if at some point in the process he was to ask for a lawyer, you know, it might make him look guilty. Now, t h at's a mental ca l culati on that an individual may well make and :nay come down on ei ther side of that question, whether to and when to ask for an attorney, and it appears clear that - up until that point Mr. Giancana had in fact not asked for an attorney. But when he was considering that, certainly he raised that issue in the context of this fairly amicable interchange between the officer and the defendant about these allegations and his firm denial in large measure and unwavering denial throughout. The -- and then after raising that issue and suggesting the negative implications that one might draw from a person asking for an attorney, says, you know, "May I call an attorney?" And at that point the offi.cers did, I believe, exactly what they were supposed to do, and that is stop, make sure that they knew what was being requested. And here they -- you know, they indicated that if he wanted a lawyer that he could have one, and that they would make one available, and they would stop the questioning, and entirely consistent with the advice that t~e defendant already indicated that he was aware of from h i s childhood, but also what had been reinforced in the Miranda warnings read to him at the time of his arrest, that they would stop questioning and provide an attorney. Now, yes, they did go on and speak to the issue about calling a family member, and I don't -- you know, I don't give that the same kind of import that, you know, that 15 - OPINION AND ORDER Mr. Bowman suggests in terms of it having some insidious purpose, but in the context in which the defendant was questioning whether you know, what would be the implications of calling an attorney in terms of making himself look glJilty to the police, and then "May I call an attorney?" In my view, the fact that he had had a previous discussion about calling a family member and the question about simply advising his family that he's been arrested and such, is not unreasonable in my view in this context for the officer to say, "Now, you know, if you want an attorney, here's what we'll do. Now, if you're just - if you just want -- are trying to just let somebody know that you've been arrested, then -- you know, then we should wai t . " And I think that, you know, whether that's, you know, the most courteous way to approach the issue about calling a family member or not is not really a matter of constitutional import, the way the issue about representation by counsel is, and -- but I don't find anything about that that is inconsistent with providing Mr. Giancana an opportunity to make the call. "Do you want to talk with us or not?" And the very next thing is that Mr. Giancana then according to the police officers, which I found to be entirely consistent and believable, was that he then spontaneously, not in response to any question, but then he hi~self began talking again about how it was his wife that always allowed Ashley to dress provocatively, you know, et cetera, et cetera, and from there the police continued to discuss with him these issues consistent with his indication that he did not want to stop the discussion and did not intend to halt the questioning, and by his conduct there made clear he didn't want to interrupt the discussion and call an attorney at that time. * * * An d there's just nothing to indicate any effort on [the officers' part to subvert Mr. Giancana's rights [related to his invocation of counsel] in that regard, and in fact the evidence is all to the contrary, that essentially that right was simply never invoked by Mr. Giancana. Id. at 259-64. 16 - OPINION AND ORDER As a pre l iminary matter, and in consideration of relevant case law and the trial court's characterization of petitioner as a "self-employed successful businessman," "insurance broker," and one who was "obviously very self-possessed, with the fact officers had attorney?" examined in petitioner isolation, unambiguous request for counsel. regarding petitioner's unreasonable officer given his Miranda the Court finds that petitioner's statement "May I call war~ings, an that self-confident," coupled for that hearing level court constitute would Given the trial court's findings of it sophistication, to then conclude that peti tioner' s an statement ~n a isolation would be reasonable would not construe it as an expression of a desire for assistance of counsel. Significantly, however, and in accord with Smith, 469 U.S. at 99-100, the trial court did not examine petitioner's statement in isolation. Rather, it considered the statement in the context of "events preceding the request or of nuances inherent in the request itself," specifically taking note of the comment petitioner made jest prior to asking for counsel wherein he lamented how asking for an attorney previous Harrington menber. in a case discussions related In detectives peti tioner' s this ~ad to like his had between petitioner's context, properly statement made the asked "May 17 - OPINION AND ORDER I you petitioner requests trial court clarifying call seem guilty, an and the and Detective call a to concluded questions attorney?" to family that the following determine whether petitioner in fact wanted to invoke h i s right to counsel and suspend the interview. Accordingly, question, was it contrary while the Court finds it is a relatively close ca~not to, conclude that the trial co u rt's determination or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of Un ited States. 1 the As the trial court noted, peti tioner' s comment expressing his concern that if he asked for an attorney it might make him look guilty could have indicated to a officer right that petitioner to counsel. addition, although remained Tra~script less conflicted Designation, persuasive, the about Part A, Court reasonable invoking p. finds 260. the his In trial court's reference to the prior discussions between petitioner and Detective Harrington about petitioner's request to call a family member as a possible indicator to officers that the request was amb i guous and warranted clarification, was not unreasonable. Finally, given the Court's determination above, it also rejects petitioner's argument that Detective Harrington "exploited For the reasons already discussed above, in determining whether petitioner's statement "May I call an attorney" was an unambiguous request for counsel, neither petitioner's subsequent responses to the officers' "clarifying" questions nor his continued participation in the interrogation can be used to cast doubt on the clarity of his original statement. The Court is satisfied that the trial court appropriately focused on the circumstances leading up to the statement to determine it was ambiguous and find that petitioner had not invoked his right to counsel. 18 - OPINION AND ORDER the illegaiity of petitioner's post-invocation statements to obtain petitio~er's [40 J at 8; consent to search his residence." Amended Petition see also Petitioner's Brief in Support [41] at 35-36. Petitioner has failed to rebut by clear and convincing evidence the trial court's factual findings supporting its conclusion that petitioner's consent to the search was "freely and willingly and voluntarily" given. At a minimum, petitioner cannot demonstrate that the trial court's reasoned denial of petitioner's pre-trial motio~ to suppress, even if debatable, was contrary to, or involved an unreasonable applica~ion of, clearly established Federal law, as determined by the Supreme Court. CONCLUSION For these reasons, the Amended Petition for Writ of Habeas Corpus [40J is DENIED, and this case is DI SMISSED, with prejudice. A cert~ficate only: were of appealability is granted as to the following issue Whether petitioner's Fifth and Fourteenth Amendment rights violated when the trial court concluded he did unequivocally or unambiguously invoke his right to counsel. u.S.C. § 2253(c) (2). IT IS SO ORDERED. DATED this ?~ r2 day of June, 2012. 1"---!;\-::----.~n es States District Judge 19 - OPINION AND ORDER not See 28
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