FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 SEPTEMBER 30, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-12835

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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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