United States Court of Appeals

Fifth Circuit



## FILED

December 2, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

05-70020

ALLEN BRIDGERS,

Petitioner-Appellant,

v.

DOUG DRETKE, Director,

Texas Department of Criminal Justice,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern

District of Texas

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

Petitioner Allen Bridgers, convicted of capital murder in

Texas and sentenced to death, appeals the denial of federal habeas

relief. Bridgers contends that the warnings he received prior to

his custodial interrogation were inadequate to apprise him of his

constitutional rights, and thus, the result i ng confession was

admitted at trial in violation of the Fifth Amendment. The

district court granted a Certificate of Appealability (“COA”) with1 The facts are taken largely verbatim from the Texas Court

of Criminal Appeals’ opinion on Bridgers’s direct appeal. B ridgers

v. State of Texas, No. 73,112 at 2-4 (Tex. Crim. App. October 25,

2000) (unpublished).

2 respect to t his claim. S ee 28 U.S.C. § 2253(c). Additionally,

Bridgers requests a COA with respect to his Fourth Amendment claim.

We decide that Bridgers has not shown that the state court’s

decision that he was adequately advised of his Fifth Amendment

rights is objectively unreasonable and affirm the district court’s

denial of federal habeas relief. Finding his Fourth Amendment

claim barred, we deny the request for a COA.

I. BACKGROUND

On May 25, 1997, the body of Mary Amie was discovered by her

niece at her home in Tyler, Texas. 1 That same day Bridgers flew

from the D allas-Fort Worth airport to Fort Lauderdale, Florida.

Three days later on May 2 8, Detective Charles Morrow of the Fort

Lauderdale Police Department received information from Crime

Stoppers regarding a possible suspect wanted in Texas for murder.

Detective Morrow had no prior knowledge of the Texas murder and did

not contact Texas authorities. Rather, he accompanied the

individual who had provided the information to Crime Stoppers to

the Holiday Park area of Fort Lauderdale. The confidential

informant pointed out Bridgers as the person who admitted that he

had murdered a woman in Texas.

D etective Morrow waited for additional detectives to arri v e3

and then app roached Bridgers, who was lying in the grass.

Detective Mor r ow testified that there were seven plainclothes

officers in the vicinity but could not remember how many approached

Bridgers. Morrow testified that his badge, gun, and handcuffs were

displayed and that it was obvious he wa s a police officer. Upon

approaching Bridgers, Detecti ve Morrow stated that he was

conducting an investigation and asked Bridgers to accompany him to

the police station. At the suppression hearing, Detective Morrow

testified that Bridgers was “nervous, but cooperative” and agreed

to go to the police station for questioning, saying “Okay. That’s

fine. Let’s go.” He also testified that if Bridgers had refused

to accompany him to the station, he would have detained Bridgers

and questioned Bridgers in the park. Bridgers was handcuffed and

transported to the station in an unmarked car.

Upon arrival at the Fort Lauderdale police station, Detective

Morrow obtained Bridgers’s driver’s license which identified him as

Allen Bridgers. Next, Detective Morrow took him to the interview

room to meet with Detectives Jack King and Jack Gee. Detective Gee

had obtained a fax of a warrant for Bridgers’s arrest dated May 27

from the Smith County Sheriff’s Department. According to Detective

Morrow’s testimony, it was at this point that Bridgers was under

arrest.

When the detectives entered the room, they introduced

themselves to Bridgers, and Detective King warned Bridgers from a

card issued by the Fort Lauderdale Police Department. The card4

read as follows:

You have the right to remain silent. Do you understand?

Anything you say can and will be used against you in a

court of law. Do you understand?

You have the right to the presence of an attorney/lawyer

prior to any questioning. Do you understand?

If you cannot af ford an attorney/lawyer, one will be

appointed for you before any questioning if you so

desire. Do you understand?

Bridgers responded affirmatively to each question posed to

h im. He indicated that he was not sure whether he wanted an

attorney. He did ask and was permitted to speak to his mother.

After he received the warnings, Bridgers was asked if he knew why

he was there and responded that Texas thought he had killed

someone. Detective King asked, “Did you?” and Bridgers said, “Yes,

you’ve got the right guy.”

After Bridgers finished talking with his mother, the

detectives activated the tape recorder and administered the

warnings a second time. Then Bridgers gave the audio taped

confession at issue in which he admitted murdering Mary Amie and

taking her purse, jewelry, and car. He requested two short stops

and both requests were honored. Both Detectives King and Gee

testified that Bridgers did not appear to be under the influence of

any substances and his mental capacity did not seem diminished in

any way. They also denied threatening Bridgers or promising him

anything in return for his statement.

Prior to trial, Bridgers filed a motion to suppress his

confession. The state trial court held a hearing on the motion and5

denied it. Ultimately, Bridgers’s audio taped confession was

admitted at trial over objection. The jury convicted Bridgers of

capital murder, and he was sentenced to death. On his automatic

direct appea l, the Texas Court of Criminal Appeals affirmed his

conviction and sentence. B ridgers v. State of Texas, No. 73,112

(Tex. Crim. App. October 25, 2000) (unpublished).

Bridgers also filed an application for writ of habeas corpus

in state court, and the Court of Criminal Appeals denied relief.

Ex Parte Bridgers, No. 45,179-01 (Tex. Crim. App. May 31, 2000).

Bridgers now appeals the district court’s denial of federal habeas

relief.

II. ANALYSIS

A. Fifth Amendment

1. Standard of Review

Bridgers filed his section 2254 petition for a writ of habeas

corpus after the effective date of the Antiterrorism and Effective

Death Penalty Act ("AEDPA"). The petition, therefore, is subject to

AEDPA. See Lindh v. Murphy

, 521 U.S. 320, 336, 117 S.Ct. 2059, 2068

(1997). Pursuant to the federal habeas statute, as amended by

AEDPA, 28 U.S.C. § 2254(d), we defer to a state court's

adjudication of a petitioner's claims on the merits unless the

state cou rt's decision was: (1) "contrary to, or involved an

unreasonable application of, clearly establ ished Federal law, as6

determined by the Supreme Court of the United States;" or (2)

"res ulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding." A state court's decision is deemed

contrary to clearly established federal law if it reaches a legal

conclusion in direct conflict with a prior decision of the Supreme

Court or if it reaches a different conclusion than the Supreme

Court based on materially indistinguishable facts. W illiams v.

Taylor

, 529 U.S. 362, 404-08, 120 S.Ct. 1495, 1519-20 (2000). A

state court's decision constitutes an unreasonable application of

clearly established federal law if it is objectively unreasonable.

Id . at 409, 120 S.Ct. at 1521. Additionally, pursuant to section

2254(e)(1), state court findings of fact are presumed to be

correct, and the petitioner has the burden of rebutting the

presumption of correctness by cl ear and convincing evidence. S ee

Valdez v. Cockrell , 274 F.3d 941, 947 (5th Cir. 2001).

2. Inadequate Warnings

Bridgers argues that the warnings given to him by Florida law

enforcement officers prior to custodial interrogation were

insufficient to protect his Fifth Amendment rights, rendering his

murder confession inadmissible. More specifically, Bridgers

contend s that the warnings he received were inadequate under

Miranda v. Arizona

, 384 U.S. 436, 86 S.Ct. 1602 (1966), because7

although the above-quoted warnings explained that he had a right to

the presence of counsel “ prior to” questioning, they did not

explicitly state that he had a right to consult an attorney during

questioning. On direct appeal, the Texas Court of Criminal Appeals

rejected this argument, opining that:

Certainly, the right to the presence of an attorney

during questioning is a crucial vehicle for safeguarding

the privilege against self-incrimination. See Miranda,

384 U.S. at 470. However, we do not think that the above

warning is susceptible to the interpretation [Bridgers]

advances. The detectives did not tell [Bridgers] that he

had the right to consult or speak to an attorney before

questioning, which might have created the impression that

the attorney could not be present during interrogation.

They told him that he had the right to the presence of an

attorney before any questioning commenced. We think that

this conveyed to [Bridgers] that he was entitled to the

presence of an attorney before questioning and that this

attorney could remain during questioning.

Bridgers v. State of Texas, No. 73,112 at 8 (Tex. Cr im. App.

October 25, 2000) (unpublished) (emphasis in original).

Accordingly, the question is whether the Co urt of Criminal

Appeals’s conclusion—that the warnings adequately advised Bridgers

of the right to have his attorney present during the

interrogation—was contrary to, or involved an unreasonable

application of, clearly established federal law as determined by

the Supreme Court.

In Miranda, the Supreme Court held, among other things, that

“an individual held for interrogation must be clearly informed that

he has the right to consult with a lawyer and t o have the lawyer2 On Bridgers’s direct criminal appeal, the Supreme Court

denied certiorari. Justice Breyer, joined by Justices Stevens and

Souter, issued a statement indica ting that because the warnings

8 with him during interrogation .” 384 U.S. at 471, 86 S.Ct. at 1626

(emphasis added). However, the Supreme Court “has never indicated

that the ‘ridigity’ of Miranda extends to the precise formulation

of the warnings given a criminal defendant.” C alifornia v.

Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809 (1981). Indeed,

the High Court has explained that we “need not examine Miranda

warnings as if construing a will or defining the terms of an

eas ement. The inquiry is simply whether the warnings reasonably

‘conve[y] to [a suspect] his rights as required by Miran da. ’ ”

Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 2880 (1989)

(brackets in original) (quoting Prysock, 453 U.S. at 361, 101 S.Ct.

at 2810).

In this case, the Cou rt of Criminal Appeals applied

controlling Supre me Court precedent and properly recognized that

Miranda required advising a suspect that he is entitled to have

counsel present during interrogation. Therefore, the Court of

Criminal Appeals did not reach a decision that was contrary to

Supreme Court precedent. We must now determine whether the Court

of Criminal Appeals’s conclusion was an unreasonable application of

Supreme Court precedent. As previously set forth, a state court’s

decision constitutes an unreasonable application of clearly

established law if it is objectively unreasonable. 2“say nothing about the lawyer’s presence during interrogation . .

. the y apparently leave out an essential M iranda element.”

Bridgers v. Texas, 532 U.S. 1034, 121 S.Ct. 1995, 1996 (2001)

(citation omi tted). Obviously, this statement by the three

Justices does not de monstrate that the Supreme Court would hold

that Bridgers’s warning was insufficient. Moreover, we agree with

the Director that because the statement was made with respect to

Bridgers’s direct criminal appeal, it does not address whether

those three Justices believed that the state court decision was an

objectively unreasonable application of Supreme Court precedent

under AEDPA.

3 In pertinent part, the warnings given to Bridgers provided

that: “You have the right to the presence of an attorney/lawyer

prior to any questioning. Do you understand?”

9 As set forth above, the Supreme Court “h[e]ld that an

individual held for interrogation must be clearly informed that he

has the right to consult with a lawyer and to have the lawyer with

him during interrogation .” Miranda, 384 U.S. at 471, 86 S.Ct. at

1626 (emphasis added). The Supreme Court, however, also directed

that “[p]rior to any questioning, the person must be warned that he

has a right to remain silent, that any statement he does make may

be used as evidence against him, and that he has a r ight to the

presence of an attorney

, either retained or appointed.” I d. at

444, 86 S.Ct. at 1612 (emphasis added). The latter warnings do not

explicitly state that a suspect has a right to counsel during

questioning, indicating that the warnings provided to Bridgers are

adequate. 3

Perhaps more importantly, the Supre me Court expressly found

that the warnings employed by the Federal Bureau of Investigation4 “The standard warning long given by Special Agents of the

FBI to both suspects and persons under arrest is that the person

has a right to say nothing and a right to counsel, and that any

statement he does make may be used against him in court.” M iranda

, 384 U.S. at 484, 86 S.Ct. at 1633 (internal quotations marks

omitted). Additionally, a suspect was advised of “his right to

free counsel if he [was] unable to pay . . . .” Id.

10 (FBI) at the time of its decision were “consistent with the

procedure which we delineate today.” M iranda, 384 U.S. at 483-84,

86 S.Ct. at 1632-33. Although the pre- M iranda FBI warnings

provided that the suspect had a right t o counsel, they did not

explicitly state that counsel may be present during interrogation. 4

Indeed, Justice Clark’s dissent noted that “the FBI does not warn

that counsel may be present during custodial interrogation.” 384

U.S. at 500 n.3, 86 S.Ct. at 1641 n.3 (Clark, J., dissenting).

Justice Clark believed the FBI’s warnings were not as stringent as

the warnings imposed by the majority opinion. Id.

In any event, what is clear from the majority opinion is that

a suspect has the right to counsel during custodial interrogation

and must be so informed. What is not clear from the majority

opinion is whether informing the suspect that he has a right to the

presence of an attorney prior to questioning adequately conveys

that counsel may remain during questioning.

Indeed, there is a split among the circuits with res pect to

whether the warning must explicitly provide that a suspect is

entitled to the presence of counsel during interrogation. On one

hand, this Court, like the Sixth, Ninth, and Tenth Circuits, has11

interpreted Miranda to require a more explicit warning indicating

that a suspect is entitled to counsel during questioning. S ee

e.g., Atwell v. United States, 398 F.2d 507, 510 (5th Cir. 1968);

United States v. Tillman, 963 F.2d 137, 140-42 (6th Cir. 1992);

Un ited States v. Noti, 731 F.2d 610, 615 (9th Cir. 1984); United

States v. Anthon, 648 F.2d 669, 672-74 (10th Cir. 1981).

On the other hand, the Second, Four th, Seventh, and Eighth

Circuits under various circumstances have held that warnings are

adequate without explicitly stating that the right to counsel

includes having coun sel present during the interrogation. S ee

United States v. Vanterpool

, 394 F.2d 697, 698-99 (2d Cir. 1968);

United States v. Frankson, 83 F.3d 79, 81-82 (4th Cir. 1996); cf.

United States v. Adams, 484 F.2d 357, 361-62 (7th Cir. 1973)

(finding warning adequate but stating that warnings provided to

suspects on the street are not expected to be as precise as those

given at the police station); United States v. Caldwell, 954 F.2d

496, 500-04 (8th Cir. 1992) (finding no plain error when warning

omitted right to counsel during interrogation).

As previously set forth, the Supreme Court has i nstructed

reviewing courts to determine wheth e r the warnings reasonably

convey to the suspect his rights as set forth in Miranda. That is

the analysis the Court of Criminal Appeals conducted in the instant5 The Court of Criminal Appeals noted that Bridgers had not

only been informed that h e had the right to consult with an

attorney before questioning but also that he “had the right to the

presence of an attorney before any questioning began.” Bridgers,

No. 73,112 at 8 (emphasis in original). The Court concluded that

this “conveyed to [Bridgers] that he was entitled to the presence

of an attorney before questioning and that this attorney could

remain during questioning.” Id. We note that the warnings further

advised Bridgers he was entitled to have counsel appointed prior to

questioning if he could not afford one.

6 We recognize that this Circuit has held that a suspect must

be explicitly warned that he has the right to counsel during

interrogation. Atwell, 398 F.2d at 510. That case was a direct

criminal appeal reviewed de novo. Here, in contrast, pursuant to

AEDPA , we have determined that the Texas Court of Criminal

Appeals’s decision was not an objectively unreasonable application

o f Supreme Court precedent. Accordingly, A twell remains b inding

precedent for cases on direct appeal in this Circuit.

12 case. 5 In light of the Court of Criminal Appeals’s apparent

adherence to the proper inquiry, the Supreme Court’s endorsement of

the FBI warnings that did not expressly state there is a right to

counsel during interrogation, and the circ u it split regarding

whether Miranda requires explicitly informing the suspect that he

has the right to counsel during interrogation, we hold that the

Court of Criminal Appeals’s conclusion that the warnings adequately

conveyed the right to counsel during interrogation wa s not

objectively unreasonable. 6 Therefore, we affirm the district

court’s denial of relief with respect to Bridgers’s Fifth Amendment

claim.

B. Fourth Amendment

1. COA Standard of Review13

T he district court denied a COA with respect to Bridgers’s

Fourth Amendment claim. Under AEDPA, a petitioner must obtain a

COA before he can appeal the district court's denial of habeas

relief. See 28 U.S.C. § 2253(c); see also Miller-El v. Cockrell

,

537 U.S. 322, 336, 123 S.Ct. 1029, 1039 (2003) ("[U]ntil a COA has

been issued federal courts of appeals lack jurisdiction to rule on

the merits of appeals from habeas petitioners.").

The COA determination under § 2253(c) requires an overview of

the claims in the habeas petition and a general assessment of their

merits. We look to the district court's application of AEDPA to

petitioner's constitutional claims and ask whether that resolution

was debatable among jurists of reason. This threshold inquiry does

not require full consideration of the factual or legal bases

adduced in support of the claims. In fact, the statute forbids it.

M iller-El

, 537 U.S. at 336, 123 S.Ct. at 1039. A COA will be

granted only if the petitioner makes "a substantial showing of the

denial of a constitutional ri ght." 28 U.S.C. § 2253(c)(2). "A

petitioner satisfies this standard by demonstrating that jurists of

reason could disagree with the district court's resolution of his

constitutional clai ms or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed

further." Miller-El , 537 U.S. at 327, 123 S.Ct. at 1034.

Where the district court has denied claims on procedural

grounds, a COA should issue only if it is demonstrated that14

"jurists of reason would find it debatable whether the petition

states a valid claim of a denial of a constitutional right and that

jurists of reason would find it debatable whether the district

court was correct in its procedural ruling." S lack v. McDaniel

,

529 U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000 ). "The question is

the debatability of the underlying constitutional claim, not the

resolution of that debate." Miller-El , 537 U.S. at 342, 123 S.Ct.

at 1042. "Indeed, a claim can be debatable even though every jurist

of reason might agree, after the COA has been granted and the case

has received full consideration, that petitioner will not prevail."

Id. at 338, 123 S.Ct. at 1040. Moreover, "[b]ecause the present

case involves the death penalty, any doubts as to whether a COA

should issue must be resolved in [petitioner's] favor." Hernandez

v. Johnson , 213 F.3d 243, 248 (5th Cir. 2000).

2. Unlawful Arrest

Bridgers contends that Florida law enforcement officers

arrested him unlawfully in violation of the Fourth Amendment,

rendering his subsequen t confession to murder inadmissible. The

Director responds that the district court correctly found that

Bridgers had had an opportunity for full and fair litigation of

this claim in the Texas state courts and, as a result, Bridgers is

precluded from any federal habeas corpus relief pursuant to Stone

v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976).15

W hen a petitioner raises a Fourth Amendment claim during a

federal habeas corpus proceeding, “our initial inquiry is whether

the state provided an opportunity for a full and fair hearing” with

respect to the claim. S wicegood v. Alabama, 577 F.2d 1322, 1324

(5th Cir. 1978). It is undisputed that Bridgers raised this issue

in a pretrial suppression motion, and the Texas state trial court

held a hearing during which six witnesses testified, including

Florida law enforcement officers involved in the initial encounter

with Bridgers. The trial court denied the motion to suppress, and

Bridgers renewed the objection at trial. On his automatic direct

appeal Bridgers raised this claim, and the Texas Court of Criminal

Appeals overruled it, finding that he “was not seized within the

meaning of the Fourth Amendment.” Bridgers, No. 73,112 at 7.

Nevertheless, Bridgers argues that he was denied a full and

fair opportunity to litigate becaus e the trial court wrongly

concluded that Bridgers was not seized in violation of the Fourth

Amendment. We have rejected such an argument, explaining that

“[i]f the term ‘fair hearing’ means that the state courts must

correctly apply federal c onstitutional law, S tone becomes a

nullity.” Swicegood, 577 F.2d at 1324.

We agree w ith the district court’s conclusion that Bridgers

was afforded a full and fair opportunity to litigate his Fourth

Amendment claim in state court and conclude that reasonable jurists

would not find it debatable whether the district court was correct16

in finding that Stone bars any federal habeas review of the instant

claim. S ee Hughes v. Dretke, 412 F.3d 582, 596 (5th Cir. 2005)

(declining to issue a COA because the petitioner had been afforded

a full and fair opportunity to litigate his Fourth Amendment claim

in state court). Thus, we decline to issue a COA.

III. CONCLUSION

The judgment of the district court is AFFIRMED. The request

for a COA is DENIED.