* Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 96-60030

(Summary Calendar)

_______________

HERMAN BARNES,

Petitioner-Appellant,

versus

JAMES V. ANDERSON, SUPERINTENDENT,

MISSISSIPPI STATE PENITENTIARY,

Respondent-Appellee.

_______________________________________________

Appeal from the United States District Court

For the Southern District of Mississippi

(CA-2:88-CV-223)

_______________________________________________

May 19, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Herman Barnes appeals the dismissal of his federal habeas

corpus petition challenging his convictions in Mississippi state

court. We affirm.

Herman Barnes was convicted in separate trials of two counts

of capital murder and was sentenced to two consecutive terms of
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life imprisonment. Barnes appealed his convictions to the

Mississippi Supreme Court claiming, inter alia, that his confession

was involuntary and extracted in violation of his rights under the

Fourth, Fifth, Sixth, and Fourteenth Amendments. The Mississippi

Supreme Court affirmed both convictions without written opinion.

Barnes v. State, 507 So.2d 380 (Miss. 1987); Barnes v. State, 506

So.2d 977 (Miss. 1987).

Barnes filed a federal habeas petition with the district court

under 28 U.S.C. § 2254. At the magistrate judge's recommendation,

the district court dismissed the petition with prejudice on the

ground that all of Barnes's claims were barred by Stone v. Powell,

428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976) (holding

that Fourth Amendment claims may not be raised in federal habeas

corpus proceedings if there was full and fair opportunity to

litigate in state court). We affirmed the district court's

disposition with respect to Barnes's Fourth Amendment claims but

remanded his claims under the Fifth, Sixth, and Fourteenth

Amendments for a determination of whether Barnes had exhausted his

remedies in state court and, if so, whether his claims were

meritorious.

The magistrate judge found that Barnes had exhausted his

remedies in state court, but determined that his confession was

voluntary and that he properly waived his Sixth Amendment right to

counsel. The district court adopted the magistrate judge's
 

1 We granted Barnes’s request for a certificate of probable cause (CPC)

on June 5, 1996. On April 24, 1996, the President signed the Antiterrorism and

Effective Death Penalty Act (AEDPA), which amended 28 U.S.C. § 2253(c)(1) to

require that a petitioner obtain a certificate of appealability (COA) prior to

appeal in habeas corpus proceedings, rather than a CPC as previously required.

In Drinkard v. Johnson, 97 F.3d 751, 756 (5th Cir. 1996), we held that the

standard governing the issuance of a COA is the same as that for a CPC.

Therefore, we shall treat Barnes’s CPC as a COA.

 

2 Barnes argues generally that he was detained “incommunicado” without

access to visitors or an attorney.

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recommendation and dismissed Barnes's petition. We granted a

certificate of probable cause for appeal.1 Barnes challenges the

dismissal of his petition on the grounds that his confession was

involuntary, that it was procured in violation of his Fifth and

Sixth Amendment rights to counsel, that the delay between his

arrest and presentation to a magistrate judge violated a liberty

interest created by state law, and that the district court judge

was prejudiced against him and should have recused himself from the

proceedings.

Barnes first contends that his confession was involuntary due

to the conditions of his confinement2 and the fact that more than

eighty hours passed between his arrest and initial appearance

before a magistrate judge. We disagree.

The Fourteenth Amendment bars admission of confessions at

trial unless they are offered freely, voluntarily, and without

compulsion or inducement. Withrow v. Williams, 507 U.S. 680, 688-

90, 113 S. Ct. 1745, 1751-52, 123 L. Ed. 2d 407 (1993). Federal

courts look at the totality of the circumstances to determine

whether a confession was the product of the accused's free and
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rational choice. Id. at 689, 113 S.Ct. at 1751; United States v.

Rogers, 906 F.2d 189, 190 (5th Cir. 1990). “[N]o single event is

sufficient to place the stamp of involuntariness on [a defendant’s]

confessions.” Jurek v. Estelle, 623 F.2d 929, 940 (5th Cir. 1980)

(en banc), cert. denied, 450 U.S. 1001, 101 S. Ct. 1709, 68 L. Ed.

2d 203 (1981), and cert. denied, 450 U.S. 1014, 101 S. Ct. 1724, 68

L. Ed. 2d 214 (1981). 

Although a delay of more than forty-eight hours between an

arrest and probable cause hearing is a presumptive violation of the

Fourth Amendment, County of Riverside v. McLaughlin, 500 U.S. 44,

57, 111 S.Ct. 1661, 1670, 114 L. Ed. 2d 49 (1991), the delay is

only one aspect of the totality of the circumstances a court should

consider when assessing the voluntariness of the confession under

the Fifth and Fourteenth Amendments. West v. Johnson, 92 F.3d

1385, 1404-05 (5th Cir. 1996). In assessing such claims, we must

determine whether there is a causal connection between the delay

and the confession. De La Rosa v. Texas, 743 F.2d 299, 303 (5th

Cir. 1984), cert. denied, 470 U.S. 1065, 105 S. Ct. 1781, 84 L. Ed.

2d 840 (1985).

Whether a confession is voluntary is a mixed question of law

and fact. Williams v. Maggio, 727 F.2d 1387, 1390 (5th Cir. 1984).

While this appeal was pending, Congress enacted the AEDPA, which

modified the standard of review for such questions in habeas

petitions. Section 2254(d)(1) now provides that we may grant an
 

3 Amended § 2254(d)(1) applies to appeals, such as this one, pending

on the effective date of the AEDPA. Drinkard, 97 F.3d at 764-65.

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application for writ of habeas corpus only if the state court’s

disposition of a mixed question of law and fact “resulted in a

decision that . . . involved an unreasonable application of[]

clearly established Federal law . . . .”3 Following our recent

decision in Drinkard, an application of law to facts is not

unreasonable unless “it can be said that reasonable jurists

considering the question would be of one view that the state court

ruling was incorrect.” 97 F.3d at 769.

We find that the record supports the state court’s conclusion

that Barnes gave his confession freely, voluntarily, and without

compulsion or inducement. Although we do not commend the lengthy

delay between his arrest and initial appearance before a

magistrate, we find no evidence to support a finding that the

incarceration caused Barnes to confess. To the contrary, the

record indicates that during the first four days of Barnes's

confinement, police made no attempt to question him about his

possible involvement in the murders other than his voluntary

submission to a lie detector test. The sheriff and other officials

present when Barnes confessed testified that he was never

threatened or offered rewards or leniency in exchange for his

confession. The record also reveals that, on at least three

occasions prior to his confession, police administered Miranda
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warnings and Barnes indicated that he understood his rights. In

fact, Barnes explicitly waived his Miranda rights just prior to

dictating his confession to police. At no time did Barnes request

the presence of counsel. The magistrate judge noted that Barnes

was an articulate high school graduate familiar with the legal

system and that he was not under the influence of drugs or alcohol

at the time of his confession. In light of the evidence in the

record and the totality of the circumstances, we cannot say that

the state court’s determination that Barnes’s confession was

voluntary was an unreasonable application of clearly established

federal law.

As an additional ground for habeas relief, Barnes argues that

police obtained his confession in violation of his Fifth and Sixth

Amendment rights to counsel. Barnes’s argument is unconvincing.

The Fifth Amendment guarantees the right to counsel during

custodial interrogation regarding an uncharged offense only if the

defendant expressly invokes the right. United States v. Laury, 49

F.3d 145, 150 (5th Cir.), cert. denied, ___ U.S. ___, 116 S. Ct.

162, 133 L. Ed. 2d 105 (1995). Moreover, a defendant’s voluntary

decision to answer questions regarding a charged offense after

police have administered proper Miranda warnings constitutes a

knowing and intelligent waiver of the right to counsel under the

Sixth Amendment. West, 92 F.3d at 1404; Montoya v. Collins, 955

F.2d 279, 282 (5th Cir.), cert. denied, 506 U.S. 1036, 113 S. Ct.
 

4 The Seventh Circuit in Shango v. Jurich, 681 F.2d 1091 (7th Cir.

1982), aptly noted that “[i]f a right to a hearing is a liberty interest, and if

due process accords the right to a hearing, then one has interpreted the

Fourteenth Amendment to mean that the state may not deprive a person of a hearing

without providing him with a hearing. Reductio ad absurdum.” Id. at 1101.

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820, 121 L. Ed. 2d 692 (1992). Although Barnes was advised of his

Miranda rights on at least three occasions))once immediately before

he confessed))at no time did Barnes expressly invoke his right to

consult an attorney during his confinement or interrogation.

Therefore, we agree with the magistrate judge that Barnes knowingly

and intelligently waived his Fifth and Sixth Amendment rights to

counsel.

Barnes next contends that the lengthy delay between his arrest

and initial appearance before a magistrate violates a state-created

liberty interest protected under the due process clause of the

Fourteenth Amendment. Although the Fourteenth Amendment entitles

individuals to procedural protections before they can be deprived

of a liberty interest created by state law, Meachum v. Fano, 427

U.S. 215, 226, 96 S. Ct. 2532, 2539, 49 L. Ed. 2d 451 (1976),

state-created procedural rights themselves are not liberty

interests within the meaning of the Fourteenth Amendment. Olim v.

Wakinekona, 461 U.S. 238, 250, 103 S. Ct. 1741, 1748, 75 L. Ed. 2d

813 (1983).4 Asserted violations of state law cannot provide a

basis for federal habeas relief. West, 92 F.3d at 1404. Barnes's

claim is thus beyond the scope of our review.

Lastly, Barnes argues that the district court judge should
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have recused himself from the proceedings because his opinion

demonstrates prejudice against Barnes and his claims. We disagree.

Although any federal "justice, judge or magistrate . . . shall

disqualify himself in any proceeding in which his impartiality

might reasonably be questioned," 28 U.S.C. § 455, adverse rulings

alone do not call into question a district judge's impartiality.

Liteky v. United States, 510 U.S. 540, ___, 114 S. Ct. 1147, 1157,

127 L. Ed. 2d 474 (1994).

There is nothing in the record to suggest that the district

court judge held any animus toward Barnes personally or that he was

otherwise prejudiced against Barnes or his claims. Therefore,

Barnes has shown no grounds for recusal.

For the foregoing reasons, we AFFIRM the district court’s

dismissal of Barnes’s petition.