United States Court of Appeals

For the First Circuit

No. 02-1352

STEVEN JAMES,

Petitioner, Appellant,

v.

JOHN MARSHALL,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Lynch, Circuit Judge, 

Bownes, Senior Circuit Judge, 

and Lipez, Circuit Judge. 

Robert L. Sheketoff, for appellant.

Thomas F. Reilly, Attorney General, with whom Jame J. Arguin,

Assistant Attorney General, for appellee.

March 14, 2003
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LIPEZ, Circuit Judge. After a Massachusetts Superior

Court jury convicted Steven James of first degree murder and

related assault charges for the 1994 death of Edward Sullivan, he

was sentenced to mandatory life imprisonment. The Massachusetts

Supreme Judicial Court (SJC) affirmed the convictions. James then

petitioned the federal district court for habeas corpus relief

under 28 U.S.C. § 2254, challenging the admissibility of his

videotaped confession. The district court denied James's petition.

We affirm.

I. 

In its opinion on James's direct appeal, the SJC

summarized the important facts. Commonwealth v. James, 693 N.E.2d

148, 150 (Mass. 1998). James and some friends were in a parking

lot of a sandwich shop in Rockland, Massachusetts. Some distance

away, near a van belonging to the victim, an argument began between

Sullivan and Steven DiRenzo, another of James's friends. The

victim took a baseball bat out of his van and used it to fend off

DiRenzo, but did not actually swing it. DiRenzo then called to

James who, with several of their other friends, ran toward the van

and began taunting Sullivan. The victim fell, dropped the bat and

lay motionless on his stomach as six or seven people repeatedly hit

and kicked him. Throughout the beating, he asked them to stop and

made no attempt to fight back. James picked up the bat and swung it

three times at Sullivan's head, crushing his skull and lacerating
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his brain. The unconscious victim was taken to a hospital, where

he died two days later as a result of head injuries.

Shortly after the fight in the parking lot, James

telephoned the Rockland police, stated that he thought he might

have killed someone with a baseball bat, and arranged to meet a

police officer at the scene of the fight. There, after a reading

of his Miranda rights, which he confirmed that he understood, he

was arrested and taken to the Rockland police station. At the

police station Sergeant Richard Craig read James his Miranda rights

a second time before asking him if he was willing to talk about the

fight. James indicated that he was. Sergeant Craig brought him to

a conference room and asked him if he could videotape the

interview. James replied "sure" and said that he had "no problem"

with that. The interview then began:

Craig: - 1994 and it's 11:22 p.m. I'm

Detective Sergeant Richard Craig.

Videotaping this is PCI Peter Curry.

It's an inteview with Steven James.

James: Yeah.

Craig: Steven, I'm going to give you some

rights. And first I'd like to inform

you that this is being videotaped. You

have the right to remain silent.

Anything you say can and will be used

against you in a court of law. You

have the right to an attorney. If you

can't afford an attorney one will be

appointed for you by the Commonwealth.

Do you understand these rights?

James: Yes.

Craig: Do you wish to make a statement at this

time?

James: Nope.
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Craig: Okay. Can I talk to you about what

happened earlier tonight?

James: Yup.

James cooperated fully throughout the interview, was forthcoming

with information and, on one occasion, paused to ask Sergeant

Craig, who was taking notes, if he was speaking too quickly. At

the end of the interview, Sergeant Craig asked James to review his

notes, make any changes that he wanted, and sign them if he thought

they were a fair and accurate representation of the interview.

James signed each page without making any objections or

modifications.

James moved to suppress admission of the videotape,

arguing that the interview should have been terminated immediately

following his answer of "Nope" to Sergeant Craig's question about

whether he wanted to make a statement. The trial court disagreed,

finding that "Nope" did not signal the invocation of his right to

remain silent: "I find that the 'no' [sic] response, as

demonstrated by the video, was one of semantics and that he was

distinguishing between reciting a formal statement and his

willingness to answer questions put to him by Craig." On direct

appeal, the SJC agreed with this determination. 

James then filed a timely habeas petition in the district

court for the District of Massachusetts, asserting that the

admission of his videotaped interview violated his Fourteenth

Amendment right to due process. The court denied the writ, holding
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that "[n]ot only has petitioner failed to show that the state

courts' factual and legal determinations were unreasonable, it is

clear that these determinations were fully supported by the

record." James v. Marshall, No. 99-10728-RWZ, 2002 U.S. Dist.

LEXIS 8157, at *5 (D. Mass. March 12, 2002). Petitioner now

appeals.

II.

A federal court may grant habeas relief to a state

prisoner if it finds, inter alia, that the state court adjudication

"resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law . . ."

28 U.S.C. § 2254(d)(1) (2002). This section "defines two

categories of cases in which a state prisoner may obtain federal

habeas relief with respect to a claim adjudicated on the merits in

state court." Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A

state court decision is "contrary to" clearly established federal

law if it "applies a rule that contradicts the governing law set

forth in [Supreme Court] cases." Id. at 405. A state court

decision involves an "unreasonable application" of clearly

established federal law if "the state court identifies the correct

governing legal principle from [Supreme Court] cases but

unreasonably applies it to the facts" of the petitioner's case, or

if the state court either "unreasonably extends a legal principle

from [Supreme Court] precedent to a new context where it should not
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apply or unreasonably refuses to extend that principle to a new

context where it should apply." Id. at 407. In either case, the

state court's determination must be unreasonable, not simply

incorrect. Id. at 411.

III.

The SJC affirmed the trial court's conclusion that when

James stated "Nope" in response to Sergeant Craig's inquiry about

making a statement, he was declining to make a formal statement,

rather than refusing to answer further questions. Therefore, the

SJC found that "Nope" was not an unequivocal assertion of his right

to remain silent which required an end to further questioning. In

reaching this conclusion, the SJC said the following: 

We cannot say this determination was clearly

erroneous. Immediately before and after that

point, the defendant appears to have been

quite willing to talk. The judge was

warranted in concluding that the defendant did

not suddenly change his mind about discussing

the incident, but had no prepared speech.

 

James, 693 N.E.2d at 151 (emphasis added).

James argues that the SJC's consideration of his conduct

and answers after he said "Nope" violated clearly established

Supreme Court precedent in Smith v. Illinois, 469 U.S. 91 (1984).

In order to evaluate that argument, we must describe the

administration of the Miranda rights and the Supreme Court's

holding in Smith in some detail.
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Eighteen-year-old Steven Smith was arrested in connection

with an armed robbery. Shortly after his arrest, Smith was taken

to an interrogation room for questioning by two police detectives.

The interview began as follows:

Q: Steve, I want to talk with you in

reference to the armed robbery that

took place at McDonald's restaurant on

the morning of the 19th. Are you

familiar with this?

A: Yeah. My cousin Greg was.

Q: Okay. But before I do that I must

advise you of your rights. Okay? You

have a right to remain silent. You do

not have to talk to me unless you want

to do so. Do you understand that?

A: Uh. She told me to get my lawyer. She

said you guys would railroad me.

Q: Do you understand that as I gave it to

you, Steve?

A: Yeah.

Q: If you want to talk to me I must advise

you that whatever you say can and will

be used against you in court. Do you

understand that?

A: Yeah.

Q: You have a right to consult with a

lawyer and to have a lawyer present

with you when you're being questioned.

Do you understand that?

A: Uh, yeah. I'd like to do that.

Q: Okay.

Id. at 92-93 (emphasis in original). Instead of terminating the

interview at this point, the interrogating officer proceeded to

finish reading Smith his Miranda rights and then pressed him again

to answer their questions.

Q: . . . If you want a lawyer and you're

unable to pay for one a lawyer will be

appointed to represent you free of

cost, do you understand that?
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A: Okay.

Q: Do you wish to talk to me at this time

without a lawyer being present?

A: Yeah and no, uh, I don't know what's

what, really.

Q: Well, you either have to talk to me

this time without a lawyer being

present and if you do agree to talk

with me without a lawyer being present

you can stop at any time you want to.

A: All right. I'll talk to you then.

Id. (emphasis in original). Smith went on to make a confession and

was convicted of armed robbery after the trial court denied his

motion to suppress the confession. The Illinois Supreme Court

affirmed his conviction. People v. Smith, 466 N.E.2d 236 (Ill.

1984).

In assessing whether Smith had invoked his right to

counsel, the U.S. Supreme Court acknowledged that "an accused's

asserted request for counsel may be ambiguous or equivocal," and

that "courts have developed conflicting standards for determining

the consequences of such ambiguities." Id. at 95. In this case,

however, the Supreme Court saw no need to resolve those conflicting

standards. The Court explained: 

The conflict among courts is addressed to the

relevance of alleged ambiguities or

equivocations that either (1) precede an

accused's purported requested for counsel, or

(2) are part of the request itself. Neither

circumstance pertains here, however. Neither

the state nor the courts below, for example,

have pointed to anything Smith previously had

said that might have cast doubt on the meaning

of the statement "I'd like to do that" upon

learning that he had the right to his

counsel's presence. . . . Nor have they
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pointed to anything inherent in the nature of

Smith's actual request for counsel that

reasonably would have suggested equivocation.

Id. at 96-97. The court then went on to explain why it had to

reverse the decision of the Illinois Supreme Court:

The courts below were able to construe

Smith's request for counsel as

"ambiguous" only by looking to Smith's

subsequent responses to continued police

questioning and by concluding that,

"considered in total," Smith's

"statements" were equivocal. This line

of analysis is unprecedented and

untenable . . . . Where nothing about

the request for counsel or the

circumstances leading up to the request

would render it ambiguous, all

questioning must cease. In these

circumstances, an accused's subsequent

statements were relevant only to the

question of whether the accused waived

the right he had invoked. Invocation and

waiver are entirely distinct inquiries,

and the two must not be blurred by

merging them together.

Id. at 97-98 (internal citations omitted). 

In cases addressing the issue of whether the Miranda

rights of a person in police custody have been "scrupulously

honored," Mosley, 423 U.S. at 104, the Smith case indicates that

there is often a threshold issue: whether the suspect actually

invoked the rights in the first instance. If the individual

unambiguously invokes his rights, he "is not subject to further

interrogation by the authorities . . . unless the accused himself

initiates further communication, exchanges, or conversations with

the police." Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
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However, "if a suspect makes a reference to an attorney that is

ambiguous or equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect might be

invoking the right to counsel, our precedents do not require the

cessation of questioning." Davis v. United States, 512 U.S. 452,

459 (1994). As the Davis decision makes clear, this threshold

inquiry is an objective one. "Invocation of the Miranda right to

counsel requires at a minimum, some statement that can reasonably

be construed to be an expression of a desire for the assistance of

an attorney." Id. (internal citations omitted).

Both Smith and Davis addressed the question of the need

for clarity in a suspect's invocation of the right to counsel,

rather than the right to remain silent implicated in this case.

However, every circuit that has directly addressed the issue "has

concluded that Davis applies to both components of Miranda: the

right to counsel and the right to remain silent." Bui v. DiPaolo,

170 F.3d 232, 239 (1st Cir. 1999) (collecting cases). This

circuit, joining the Ninth and the Second Circuits, has heretofore

left the issue open. Id. at 239 ("[W]e acknowledge that Davis does

not 'authoritatively' answer the question in the narrow, technical

sense of that term."). Given the habeas context in which James

raises the challenge to the treatment of his right to remain silent

by the police and the state courts, we leave open again the issue

of the applicability of Davis to both the right to counsel and the
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right to remain silent. "For the purposes of habeas corpus review,

we simply cannot deem unreasonable a conclusion by the

Massachusetts courts [to apply right to counsel principles to a

right to remain silent case] that is consistent with the approach

taken by so many respected tribunals." Id. Thus, in this habeas

context, we view the Smith and Davis precedents as clearly

established federal law applicable to our evaluation of the SJC's

decision on James's invocation of his right to remain silent.

However, in asserting that the SJC ruled contrary to

Smith, James ignores the holding in Smith, which was premised on

the unambiguous assertion of the right to remain silent: "We hold

only that, under the clear logical force of settled precedent, an

accused's postrequest responses to further interrogation may not be

used to cast retrospective doubt on the clarity of the initial

request itself." Smith, 469 U.S. at 100 (second emphasis added).

In this case, the trial court found ambiguity in James's response

of "Nope" to the question, "Do you wish to make a statement at this

time?" In evaluating that finding of ambiguity by the trial

court, the SJC did look at the circumstances of James's interview

before and after he said "Nope." 

We cannot say this determination was clearly

erroneous. Immediately before and after that

point, the defendant appears to have been

quite willing to talk. The judge was

warranted in concluding that the defendant did

not suddenly change his mind about discussing

the incident, but had no prepared speech.
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James, 693 N.E.2d at 151. However, because the SJC did not refer

to James's post-"Nope" responses "to cast retrospective doubt on

the clarity of the initial request itself," Smith, 469 U.S. at 100,

the SJC's decision was not contrary to the clearly established

Smith precedent. Instead, the SJC used these responses, in part,

as Sergeant Craig used them during the interrogation of James

himself -- to determine whether James was in fact invoking his

right to remain silent with his ambiguous answer.

After James says "Nope" to the inquiry about a formal

statement, Sergeant Craig does not ignore his answer and forge

ahead with questions about the deadly event. Instead, he asks him

a question designed to clarify the meaning of his answer: "Okay.

Can I talk to you about what happened earlier tonight?" James

answers "Yup." Only then does the questioning about the events

continue. This is precisely the kind of "good police practice"

described by the Supreme Court in Davis, where the Supreme Court

declined to adopt a rule requiring officers to ask clarifying

questions in the face of an ambiguous assertion of the right to

counsel, but noted that "when a suspect makes an ambiguous or

equivocal statement it will often be good police practice for the

interviewing officers to clarify whether or not he actually wants

an attorney." Davis, 512 U.S. at 461. That was essentially what

Sergeant Craig did here with respect to James's invocation of the

right to remain silent. 
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Hence, the "unreasonable application of federal law"

issue under AEDPA turns on the threshold question posed by Davis:

whether a reasonable police officer in the position of Sergeant

Craig would have treated James's invocation of the right to remain

silent as ambiguous, thereby justifying the clarifying question

that Sergeant Craig asked James. Davis, 512 U.S. at 459. The

trial court was correct to answer that question affirmatively, and

so was the SJC. Therefore, in summary, the decision of the SJC was

neither contrary to Smith, nor an unreasonable application of

Davis.

Affirmed.