* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-30799

Summary Calendar

 

GREGORY WAYNE COTTON,

Petitioner-Appellant,

versus

BURL CAIN, Warden,

Louisiana State Penitentiary,

Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 97-CV-820-H

- - - - - - - - - -

May 28, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Gregory Cotton (Louisiana prisoner #119098) appeals the

district court’s judgment dismissing his 28 U.S.C. § 2254

petition with prejudice. Cotton has also filed a motion for the

appointment of counsel. Because the “interests of justice” do

not require the appointment of counsel in the instant case,

Cotton’s motion is DENIED. See Schwander v. Blackburn, 750 F.2d

494, 502-03 (5th Cir. 1985). 
Cotton pleaded guilty to second-degree murder, reserving the

right to appeal three incriminating statements which the state

trial court refused to suppress. He now challenges the

constitutional validity of those statements, contending that they

were obtained in violation of his Fifth, Sixth, and Fourteenth

Amendment rights. The district court granted a certificate of

appealability (COA) on the following issue: “Whether the failure

to suppress Cotton’s confessions deprived him of his rights under

the Fourth, Fifth, and Fourteenth Amendments.” Cotton has waived

any Fourth Amendment claim by failing to brief it on appeal. See

Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). 

Moreover, Cotton’s Sixth Amendment claim is not before us on

appeal because the district court did not grant a COA on that

claim and because Cotton has not expressly requested that his COA

be broadened to encompass that claim. See Lackey v. Johnson, 116

F.3d 149, 151-52 (5th Cir. 1997); United States v. Kimler, 150

F.3d 429, 431 & n.1 (5th Cir. 1998). Thus, the only issue

properly before us on appeal is whether the three incriminating

statements were obtained in violation of Cotton’s Fifth and

Fourteenth Amendment rights. 

Cotton’s chief complaint regarding his first statement is

that the police continued to question him after he purportedly

invoked his right to have counsel present during the custodial

interrogation. On direct appeal, the state appellate court

concluded that Cotton had not unequivocally invoked his right to

counsel. The court further concluded that Cotton’s interrogator,

Sergeant Mike Edwards, was entitled to ask follow-up questions to
No. 98-30799 

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clarify whether Cotton wanted an attorney present and that

Cotton’s subsequent responses indicated that he did not want to

invoke his right to counsel at that time. The state appellate

court’s resolution of the issue was not contrary to, or an

unreasonable application of, clearly established federal law. 

See 28 U.S.C. § 2254(d)(1); Barnes v. Johnson, 160 F.3d 218, 224-

25 (5th Cir. 1998), cert. denied, 1999 U.S. Lexis 3318 (U.S. May

17, 1999)(No. 98-8088).

Cotton also argues that he did not voluntarily waive his

right to counsel during his first statement because (1) he signed

the advice-of-rights form at 2:05 a.m., (2) the taped interview

did not commence until 2:31 a.m., (3) he informed Edwards that he

could not read, and (4) a psychiatrist who had examined him for

his competency evaluation had opined that he had limited

intellectual abilities and probable mild mental retardation. He

further maintains that his first statement was involuntary as a

result of those same factors.

Both the state trial court and the state appellate court

determined that Cotton had knowingly waived the rights of which

he was advised. Cotton has not presented clear and convincing

evidence to rebut the state-court findings, which are presumed to

be correct. See 28 U.S.C. § 2254(e)(1); Kelly v. Lynaugh, 862

F.2d 1126, 1131 (5th Cir. 1988). Cotton’s contention that his

statement was involuntary as a result of those same factors is

likewise without merit. He “has presented no evidence of

coercive tactics by the police or evidence that his confession

was not made intelligently because of his limited intellectual
No. 98-30799 

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capacities.” See Jones v. Johnson, 171 F.3d 270, 278 & n.31 (5th

Cir. 1999).

Cotton contends that his second and third statements were

obtained in violation of his Fifth Amendment rights because the

police initiated further questioning after he had invoked his

right to counsel during the first statement. He further contends

that his second and third statements should have been suppressed

as fruit of the poisonous tree. Cotton’s contentions are without

merit. As previously discussed, Cotton did not invoke his right

to counsel during the first statement. Thus, the police were not

prohibited from initiating further questioning. Cf. Minnick v.

Mississippi, 498 U.S. 146, 153 (1990)(“[W]hen counsel is

requested, interrogation must cease, and officials may not

reinitiate interrogation without counsel present, whether or not

the accused has consulted with his attorney.”). Moreover,

because Cotton has not shown that his first statement was

constitutionally invalid, he has not shown that his second and

third statements should have been suppressed as fruit of the

poisonous tree. See Colorado v. Spring, 479 U.S. 564, 571-72

(1987)(“A confession cannot be ‘fruit of the poisonous tree’ if

the tree itself is not poisonous.”).

Finally, Cotton argues that his second and third statements

were involuntary because he made those statements based upon

unfulfilled promises by the police that they would help him on

any forthcoming charges. The state trial court found that no

promises had been made by the police to obtain Cotton’s

statements. The state appellate court agreed that the police had
No. 98-30799 

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made no promises to induce Cotton’s statements, noting that

Sergeant Edwards agreed only to “make unspecified recommendations

to the district attorney based on what [Cotton] told him.” The

state-court findings were not unreasonable in light of the

evidence presented and are therefore entitled to a presumption of

correctness. See 28 U.S.C. § 2254(d)(2), (e)(1). Cotton has not

presented clear and convincing evidence to rebut that

presumption. See 28 U.S.C. § 2254(e)(1).

Cotton’s three incriminating statements were not obtained in

violation of his Fifth or Fourteenth Amendment rights. 

Accordingly, the district court’s judgment is AFFIRMED.

MOTION DENIED; AFFIRMED.