United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1871

___________ Bounsouay Thatsaphone, * * Petitioner - Appellee, * *
v. * Appeal from the United States * District Court for the Douglas Weber, Warden, South Dakota * District of South Dakota. State Penitentiary; Mark W. Barnett, * Attorney General, * * Respondents - Appellants. *

___________ Submitted: October 20, 1997 Filed: February 26, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

___________ LOKEN, Circuit Judge.

Bounso uay Thatsaphone was convicted in state court of third degree rape fo r engaging in sex with a minor. After the Supreme Court of South Dakota affirmed , Thatsaphone petitioned for feder al habeas corpus relief. The district court granted the writ, concluding that Thatsaphone because of his lack of English language skills had been subjected to in-custody interrogation in vio lation of his constitutional rights under Miranda v. Arizona , 384 U.S. 436 (1966). The State appeals. We reverse.-2-

In June 1993, Sioux Falls police detective Bruce Bai ley investigated a complaint tha t twelve-year-old B.J.H. was the victim of a statutory rape. Bailey interviewe d B.J.H., who identified Thatsaphone as the culprit. At Bailey’s request, Thatsaphone came to the police station for an untaped twenty- two minute interview during which he made i ncriminating admissions. Thatsaphone was indicted for statutory rape an d moved to suppress his statements to Detective Bailey.
Following an evidentiary

hearing, the trial judge made the following findings of fact. Thatsaphone is a Laotian immigrant who had lived in the United States for seven years and had worked at a local meat packing plant for six years. When Detectiv e Baile y contacted him by telephone, Thatsaphone said he both spoke and understoo d English. On June 24, Thatsaphone voluntaril y came to be interviewed by Bailey at the police station, accompanied by a friend, Vic Souvannarath, who also s poke English and Laotian. Bailey excluded Souvannarath from the interview “for several reason s inc luding that [Thatsaphone] told Bailey that he understood and spoke English pretty well, that [Thatsaphone] appeared to Bailey to speak and understand English prett y well , that the friend by virtue of his relationship to [Thatsaphone] did not possess the requisite impartiality necessary for an appropriate and accurate interview, and that such friend was not certified by 911 communications as a recognized interpreter of th e Laotian language.”

Bef ore beginning the interview, Bailey asked Thatsaphone if he understoo d English. Thatsaphone explained that he h ad lived in the United States for seven years, had learned English at a local high school, and could speak and understand Englis h pretty well. Bailey then told Thatsaphone that he was not under arrest and would not be placed unde r arrest that day, that the door to the interview room was closed fo r privacy but unlocked so he was free to leave, and that he could take restroom breaks atany time. Bailey asked Thatsaphone if he understood; Thatsaphone answere d affirmatively. During the interview, Thatsaphone was anxious but not unusually so , Bailey did not use complicated terms or phra ses, and Thatsaphone “answered Bailey’s-3-

intervi ew questions appropriately and by his answers appeared to understand suc h que stions and the language thereof.” Bailey did not administer Miranda warnings at any time. The interview lasted tw enty-two minutes, following which Thatsaphone left the police st ation of his own accord. He was arrested the following day. At th e evidentiary hearing, Thatsaphone

testifi ed before the Court [on] his Motion to Suppress and an interpreter was present throughout suc h hearing. Almost all of the testimony at said hea ring was an interchange directly between the respective attorney s asking questions in English and [Thatsaphone] speaking the answers i n English. Neither attorney made any sp ecial effort to use simplistic words or phrases. [T hatsaphone] did not address the interpreter very often and

. . . only minor points of clarification were involved . . . . The Englis h language was not a barrier to [Thatsaphone’s] understanding of all tha t was occurring at the hearing or Bailey’s interview.

Ba sed upon these findings, the trial court denied Thatsaphone’s motion t o suppress. After his co nviction was affirmed, Thatsaphone filed this petition for a writ of habeas corpus, arguing that his constitutional rights had been violated because the Bailey interview was custodial interrogation for Miranda purposes and his incriminating statements to Detective Ba iley were involuntary. The district court on its own motion ordered an evidentiary hearing on the question of Thatsaphone’s understanding of the Eng lishlanguage. At that hearing, three prison tutors testified that Thatsaphone’ s English language sk

ills were primitive when he was first incarcerated for this offense. Thatsaphone testified that he had understood almost nothing at the Ba iley interview and the hearing on his motion to suppress. The magistrate judge recommen ded that the writ be granted on the ground that Thatsaphone’s statements should have been suppressed as involuntary. Without reaching the voluntariness issue, the district court granted the writ, concluding that Bailey’s int erview was custodial interrogation, at which Miranda

war nings were constitutionally required, because of Thatsaphone’s “demonstrate d limitations in understanding spoken English” and his “lack of familiarity with the-4-

Ameri can legal system.” The State appeals, arguing that Thatsaphone was not i n custody and his admissions were voluntary.

I. The Miranda Issue

“ Miranda warning s are due only when a suspect interrogated by the police is ‘in custody.’” Thompson v. Keohane , 116 S. Ct. 457, 460 (1995). “In dete rmining whether an individual was in custody, a court must examine all of the circumstances surrounding the inter rogation, but the ultimate inquiry is simply whether there [was] a formal arrest

or rest raint on freedom of movement of the degree associated with a formal arrest. ” Stansbury v. California , 511 U.S. 318, 322 (1994) (quotations omitted).
Absent the English language issue, it is clear that Bailey’s twenty minute interview of Thatsaphone was not custodial interrogation. Indeed, the case would then be virtually

on all f ours with Oregon v. Mathiason , 429 U.S. 711 (1977). There, a police office r investigating a theft contacted defendant by phone, and they agreed to meet at the police office. The thirty-minute meeting took place in a room with the door closed. The officer tolddefendant he was not under arrest, but he was suspected of a burglary and hi s truthfulness might be considered by the prosecutor or judge. No Mi randa warnings were given until aft

er defendant confessed. The state supreme court reversed the conviction

on the grou nd that the interrogation took place in a “coercive environment.” Th e Supreme C ourt summarily reversed. Because defendant came to the brief meetin g voluntarily, was not arreste d, and left without police hindrance, the Court concluded he had not been subjected to custodial interrogation:
Any int erview of one suspected of a crime by a police officer will hav e coercive aspec ts to it . . . . But police officers are not required t o administer Miranda

warnings to everyone whom they question. Nor is the req uirement

of warnings to be imposed simply because the questionin g takes place in the station house, or because the questioned person is on e whom the police suspect. Miranda warnings are required only where-5-

there has been such a restriction on a person’s freedom as to render him “in custody.” It was that s ort of coercive environment to which Miranda by its terms was mad e applicable, and to which it is limited.
429 U.S. at 494. Here, too, Thatsaph one came to the interview voluntarily, was told he

was not under arrest, and left without hindrance after a short interview. At the outset, Detective Bailey advised that the interview was voluntary and that Thatsaphone was free to leave. The brief interview was less coercive i n nature, and was held in a less coercive

en vironment, than other interrogations we have held to be non-custodial for Mirand a purposes, such as the station-house questioning in Feltrop v. Bowersox , 91 F.3d 1178 (8thCir. 1996), cert denied , 117 S. Ct. 1849 (1997), and in Jenner v. Smith , 982 F.2d 329 (8th Cir.), cert. denied , 510 U.S. 822 (1993).
That brings us to the central issue in the case, Thatsa phone’s understanding of the English language. Before discus sing its merits, we must frame that issue and place it in its proper procedural context. We agree with the district court that a suspect’s language skills may be relevant to the “in custody” issue. Cf. United States v. Ceballos , 812 F.2d 42, 48 n.4 ( 2d Cir. 1987). But the question is not whether Thatsaphone subjectivel y believed that he was in custody because he did not understand Detective Bailey’ s cautio ns to the contrary. The district court erred in treating this as a subjective issue , misreadi ng a passage in United States v. Griffin , 922 F.2d 1343, 1349 (8th Cir. 1990), that adde d a misleading reference to “subjective belief” to a quote from Berkemer v

. McCarty , 468 U.S. 423 (1984). Berkemer h eld that the inquiry is objective -- “the only relev ant inquiry is how a reasonable man in the suspect’s position would hav e understood his situation.” 468 U.S . at 442. Any doubt on this question was laid to rest in Stansbury v. Califo rnia , where the Court stated, “the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating of ficers or the person being questioned .” 511 U.S. at 319 (emphasis added).-6-

Thus, the ultimate issue is whether a reasonable police officer conductin g Detecti ve Bailey’s otherwise non-custodial interview would have given Mirand a warnings because he realized that the questioning would be perceived by Thatsaphone

as custodial due to his limited English language skills. This is a mixed question o f constitutional law and fact which the federal habeas courts must review de novo

. See Thompson v. Keohane , 116 S. Ct. at 465. A critical preliminary question is, on wha t record should the federal court make this determination? The district court ordered an evidentiary hearing sua sponte . First, t he court reasoned that Thatsaphone procedurally defaulted the English language issue b y not seeking post-conviction relief in state court, but that the State had waived that default. We disagree. The Miranda issue was no t procedurally defaulted; it was pre served in state court both by Thatsaphone’s motion to suppress, on which the state court held an evidentiary hearing, and by his direct appeal. The extent of Thatsaphone’s English language skills was an issue he had every opportu nity to develop in the state court suppression hearing. If Thatsaphone did no t adequately develop the facts supporting his motion in state court, that is a different kind of procedural default, one that he may overc ome in federal court only with a showing of

cau se and prejudice. See Keeney v. Tamayo-Reyes , 504 U.S. 1, 8-12 (1992) ; McDon aldv. Bowersox , 101 F.3d 588, 592 (8th Cir. 1996), cert. denied , 117 S. Ct

. 2527 (1997). That default was not waived by the State , which timely objected when the district court first ordered an evidentiary hearing.

Second, the district court reasoned that an evidentiary hearing was needed “t o develop the factual record,” and “to have an independent review of the constitutiona l issues. ” As we have explained, Thatsaphone was not entitled to a second hearing i n federal court because he failed to sh ow cause excusing his failure to develop the factual record in state court. The federal courts retain some discretion to hold non-mandatory evidentiary

hearings in habeas cases. Compare Clemmons v. Delo , 124 F.3d 944, 952 (8th Cir. 1997), with Zeitvogel v. Delo , 84 F.3d 276, 279 (8th Cir.), cert. denied , 117The recent amendments to § 2254 enacted by the Antiterrorism and Effective 1 Death Penalty Act of 1996 may limit this discretion to hold evidentiary hearings i n habeas cases. See28 U.S.C. § 2254(e)(2); Po rter v. Gramley , 112 F.3d 1308, 1317 & n.8 (7th Cir. 199 7). But those amendments do not apply to Thatsaphone’s noncapital
case. See Lindh v. Murphy , 117 S. Ct. 2059, 2063 (1997).
-7- S. Ct. 368 ( 1996). However, if the court did not abuse its discretion in holding a n 1 evidenti ary hearing -- an issue we do not decide -- the court went beyond its habea s autho rity when it heard testimony rehashing what occurred at the Bailey interview and at the state court suppression hearin g, and then reweighed the state court’s fact findings

as to what was said by whom, and how much Thatsaphone understood or appeared to understand at the Bailey interview and the suppression h earing. Even when, as here, the ultimate habeas issue is reviewed de novo , a state court’s findings on “basic, primary, or historical facts : facts in the sense of a recital of external events and the credibility of their narrators,” are presumed to be co rrect unless the district court finds that one of the except ions in 28 U.S.C. § 2254 (1988) applies. Thompson v. Keohane , 116 S. Ct. a t 463-64. A federal habeas court “may no t disregard this presumption unless it expressly finds that one of the enumerated exceptions to § 2254 is met, and it explains th e
rea soning in support of that conclusion.” Burden v. Zant , 498 U.S. 433, 437 (1991)

. Here, the district court made no such determination. Moreover, a federal habeas court may not simply disagree with the state court’s factual determinations. “Instead, it must conclude that the state court’s findings lacked even ‘fair support’ in the record. ” Marshall v. Lonberger , 459 U.S. 422, 423 (1983).
Returning now to the merits, we review the ultimate “in custody” issue de novo

. See Feltrop , 91 F.3d at 1181. Giving the state court’s primary fact findings th e deference to which they are entitled, we conclude that Thatsaphone’s limite d understanding of the English language provides no objective basis to change ou r conclusion that Detective Bailey’s interview was non-custodial. Bai ley repeatedly asked Thatsaphone if he could speak and understand English, and Thatsaphone-8-

responded affirmatively. Thatsaphone never expressed a desire to halt the interview, he responded coherently in English, and he remained silent when asked que stions he did not want to answer. He ra

rely used the interpreter provided at the suppression hearing and responded in English to questions posed to him in English. Throughout thes e proceedings, he has employed both colloquial and sophisticated English terms such as “interrogate,” “bo dysuit” (describing the victim’s clothing), and “get hard” (describing his lack of sexual feeling). In sho rt, Thatsaphone’s self-serving testimony at the habeas hearing is be lied by the state court record and the findings of the state court judge who obse rved him at the suppression hearing and at trial. Because Thatsaphone was not in custody when interviewed by Detective Bailey, his constitutional rights were not violated by the absence of Miranda warnings.

II. Voluntariness
The magistrate judge recommended that Thatsaphone’s statements to Detective Ba iley were involuntary because, given Thatsaphone’s Laotian background, “merel y summoning him to the police station, excluding him from his friend, and demandin g informat ionwas sufficient coercion to overcome [his] resistance to confession. ” Reviewing this recommendation de novo , see United States v. Jacobs , 97 F.3d 275, 279 (8th Cir. 1996), we disagree.
“Coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment .” Colorado v. Connelly , 479 U.S. 157, 167 (1986); LaRette v. Delo , 4 4 F.3d 681, 688-89 (8th Cir.), cert. denied sub nom. LaRette v. Bowersox , 116 S. Ct. 246 (1995). As we have explained, Detective Bailey in t he twenty-minute interview used no improperly coercive questioning tactics, and That saphone’s responses and conduct gave

no indicat ion that coercion was causing his will to be overborne, either by his lack o f English l anguage skills or any other factor. In reviewing voluntariness, we give “great weight to the considered conclusions of a coequal state judiciary.” Miller v.-9-

Fenton , 474 U.S. 104, 112 (1985). We agree with the South Dakota state courts tha t Thatsaphone’s incriminating statements were not constitutionally involuntary. Compare Beckwith v. United States , 425 U.S. 341, 347-48 (1976); United States v. Hatten , 6 8 F.3d 257, 262 (8th Cir. 1995); Jenner , 982 F.2d at 333-34.

The jud gment of the district court is reversed and the case is remanded with instructions to deny Thatsaphone’s petition for a writ of habeas corpus.
A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.