PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

 

NAIF AL-YOUSIF,

 Petitioner - Appellee,

v.

TRAVIS TRANI, Warden, Colorado State 

Penitentiary; JOHN W. SUTHERS, 

Attorney General of the State of 

Colorado,

 Respondents - Appellants.

No. 14-1084

 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLORADO 

(D.C. No. 1:12-CV-01742-RPM)

 

Ryan A. Crane, Assistant Attorney General (John W. Suthers, Attorney General, with 

him on the briefs), Denver, Colorado, for Respondents - Appellants. 

Brett Daniel Lampiasi, Law Office of Brett Daniel Lampiasi, Hatfield, Massachusetts, 

and Henry L. Solano, Wilson Elser Moskowitz Edelman & Dicker LLP, Denver, 

Colorado, (Steven M. Feder and Barry Boughman, Feder Law Firm, Denver, Colorado, 

with them on the brief), for Petitioner - Appellee. 

 

Before HARTZ, MATHESON, and MORITZ, Circuit Judges. 

HARTZ, Circuit Judge. 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 6, 2015

Elisabeth A. Shumaker 

Clerk of Court

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The United States District Court for the District of Colorado granted Defendant 

Naif Al-Yousif’s application for a writ of habeas corpus under 28 U.S.C. § 2254. 

Although the application was untimely filed, the district court granted equitable tolling 

and proceeded to the merits. It ruled that the state-court decision was both contrary to 

and an unreasonable application of Miranda v. Arizona, 384 U.S. 436 (1966), and Moran 

v. Burbine, 475 U.S. 412 (1986). The State of Colorado appealed. (It did not need to 

obtain a certificate of appealability. See Fed. R. App. P. 22(b)(3).) We have jurisdiction 

under 28 U.S.C. §§ 1291 and 2253 and reverse. 

I. BACKGROUND 

The facts are largely undisputed. Defendant, a native of Saudi Arabia, moved to 

the United States in 1996 to study English. He attended an English-language program for 

14 months, advancing from no English comprehension or speaking ability to the ability to 

carry on a basic conversation. 

Defendant’s conviction was for the murder of Abdulaziz Al-Kohaji on January 10, 

2001. See People v. Al-Yousif, 206 P.3d 824, 828 (Colo. App. 2006) (Al-Yousif II). The 

victim flew to Denver that day and was driven from the airport to his apartment by 

Defendant’s cousin (Mishal Al-Swaidy) and brother, who expected to see him later at 

dinner. But Defendant picked the victim up at the apartment and drove him to the home 

Defendant shared with Al-Swaidy and their roommate, Tariq Al-Dossary. Defendant left 

the house to buy groceries. When he returned, the victim was tied to a chair. Al-Dossary 

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forced him to disclose his financial-account information and then strangled him to death 

with a rope while Defendant and Al-Swaidy watched. The three men disposed of the 

body in a dumpster. Defendant and Al-Dossary sold the victim’s car, cashed $1,000 of 

the victim’s cashier’s checks, and withdrew $19,900 from his bank account. Al-Dossary 

and Al-Swaidy fled to Saudi Arabia. Defendant initially fled to California but returned to 

Colorado after speaking to his brother. 

Detective Gene Guigli arrested Defendant when he returned. On the way to the 

police station, Defendant said words to the effect of “I know all about it,” and appeared 

eager to talk. People v. Al-Yousif, 49 P.3d 1165 (Colo. 2002) (Al-Yousif I) App. A (Order 

on Mot. to Suppress Statements, People v. Al-Yousif, No. 01 CR 1861 (Dist. Ct. Colo. 

Dec. 20, 2001) (Order to Suppress)), at 1178 (internal quotation marks omitted). Guigli 

briefly advised Defendant of his rights and instructed him not to talk while being 

transported. 

At the station, Guigli and Detective Mike Martinez questioned Defendant while 

being videotaped. After asking Defendant the spelling and pronunciation of his name and 

his date of birth, address, and phone number, Martinez said, “[L]et me first advise you of 

your rights. Okay?” Tr. of Interview at 3, Al-Yousif v. Trani, No. 1:12-cv-01742-RPM 

(D. Colo. Nov. 16, 2002) (Doc. No. 19-2) (Tr.). He then read, without pausing, from a 

printed form: 

Martinez: Okay. You have the right to remain silent. Anything you say 

can be used as evidence against you in court. 

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Al-Yousif: [Nods head] 

Martinez: You have the right to talk to a lawyer before questioning and 

have him present— 

Al-Yousif: [Nods head] 

Martinez: —during questioning. If you cannot afford a lawyer, one will be 

appointed for you without cost to you before questioning. 

Al-Yousif: [Nods head] 

Id.; see Order to Suppress, 49 P.3d at 1180. 

Martinez checked off each right as he read. See Order to Suppress, 49 P.3d at 

1180. When asked if he understood, Defendant “nodded and mumbled something that 

sound[ed] like an affirmative response.” Id. Martinez asked whether Defendant was 

sure, and he responded yes. Martinez then turned the form to face Defendant and said: 

“I need your signature here to show you were the person advised of your rights.” Id.

(internal quotation marks omitted). Defendant signed his name. Martinez continued: 

“[I]t says here, ‘Knowing my rights and knowing what I’m doing, I now wish to 

voluntarily talk to you.’ To talk with us, I need your signature on that line.” Tr. at 4. He 

pointed to the signature blank in the waiver portion of the form. See Order to Suppress, 

49 P.3d at 1180. Defendant signed his name without asking any questions. See id. 

Martinez twice asked whether any promises or threats had been made to Defendant to 

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have him make a statement. See id. Defendant responded “What statement?”1 Al-Yousif 

I, 49 P.3d at 1170 (internal quotation marks omitted). Guigli said that Martinez meant 

that they “didn’t make any threats to hurt you or physically harm, or mentally harm you 

to make this statement. It’s voluntary?” Tr. at 4. Defendant shook his head and said 

“You didn’t.” Tr. at 5. 

Nevertheless, when Guigli asked, “And you’re voluntarily going to talk to us 

about what happened,” Defendant said that he would not speak to the detectives until the 

victim’s uncle arrived. Id. Guigli responded, “You understand we have to talk first.” 

Order to Suppress, 49 P.3d at 1182 (internal quotation marks omitted). Defendant 

initially said, “We’ll talk,” Tr. at 5; but after Martinez said, “Tell us what happened to 

[the victim],” id. at 8, Defendant repeated, “I don’t feel like talking until his uncle 

comes,” Order to Suppress, 49 P.3d at 1182 (internal quotation marks omitted). Guigli 

said, “We can’t bring the uncle into this interview.” Id. (internal quotation marks 

omitted). 

Defendant then answered questions with inculpatory statements that led to his 

conviction. During the interview Defendant “stated that he was good friends with the 

victim,” id., that he had spoken to the victim’s uncle and told him that he would explain 

what happened when the uncle came to Colorado, and that in Saudi Arabia the victim’s 

 

1

 The Colorado trial court found that Defendant asked “What’s a statement?” Order to 

Suppress, 49 P.3d at 1180 (internal quotation marks omitted). But the Colorado Supreme 

Court, which reviewed the videotape, found that he said “What statement?” Al-Yousif I, 

49 P.3d at 1170 (internal quotation marks omitted). 

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parents would decide his punishment. Late in the interview, the detectives asked 

Defendant whether he expected to go to prison. He said no and asked the detectives what 

would happen if the victim’s uncle said to let Defendant go. A detective said: “You have 

been here long enough. You know we have courts like across the street, that big 

courthouse. That’s up to a judge and jury what happens to you. Do you understand 

that?” Tr. at 78. The interview lasted 90 minutes before Defendant agreed to take the 

detectives to the dumpster where he and the other men had disposed of the body. 

When Defendant and the detectives returned to the station, Detective Martin Vigil 

asked Defendant how long he had been in the United States, if Defendant had understood 

him, and whether Defendant had understood everything in the earlier interview. He 

responded affirmatively and said that although “he sometimes has a problem 

understanding” he would ask for an explanation if he did not understand. Order to 

Suppress, 49 P.3d at 1181. Vigil provided a third Miranda advisement, offering some 

explanation or paraphrase after each right. Defendant then said that he wanted an 

attorney, and the detectives ended the interview. 

Before trial, Defendant moved to suppress the video of his police interrogation, 

asserting that he had not knowingly and intelligently waived his Miranda rights. At the 

suppression hearing, he called three witnesses who testified that he had not understood 

his rights because of his cultural background and limited English proficiency. One 

expert, Dr. Mohammed Amin Kohlwadia, testified that Defendant had poor English skills 

compared to other Arabic-speaking students and that he found it more difficult to explain 

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legal concepts to him. Dr. Kholwadia also testified that “nodding . . . does not 

necessarily mean that an Arab person understands everything but can mean that he wants 

more explanation.” Id. He said that “some of the terms used in the advisement such as 

‘right’ and ‘evidence’ could translate into two or three different meanings.” Al-Yousif I, 

49 P.3d at 1171. And he related that there is no right not to speak to the police in Saudi 

Arabia, and that when he reviewed the advisement form with Defendant the morning of 

the hearing, Defendant understood the words but had difficulty with the concept of the 

right to remain silent. The other two witnesses had taught Defendant English. They 

testified that he would nod and say that he understood even when he did not understand 

the full meaning of what was being said. One testified that Defendant had reached a 

fifth-grade level of English reading and that comprehension of the Miranda advisement 

requires a seventh-grade reading level for a native speaker. See Order to Suppress, 

49 P.3d at 1181. Two friends testified that Defendant had limited English proficiency 

and that they had assisted Defendant with forms in English. 

The trial court’s “impression from multiple reviews of [the videotaped 

interrogation] [was] that defendant had a fair ability to converse with the detectives in 

English.” Id. at 1180. It noted that Defendant “frequently respond[ed] ‘Huh?’ to 

questions and had trouble with certain words [but] responded appropriately to most of the 

questions posed to him.” Id. Nonetheless, the court concluded that, although Defendant 

demonstrated the ability to engage in casual conversation, the State had failed to show 

that Defendant knowingly and intelligently waived his Miranda rights. It therefore 

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suppressed his statements. On an interlocutory appeal by the State, the Colorado 

Supreme Court reversed, ruling that Defendant “did sufficiently understand his rights and 

that the waiver was, therefore, valid.” Al-Yousif I, 49 P.3d at 1167. The videotaped 

interrogation was admitted into evidence at Defendant’s trial, and a jury convicted him of 

felony murder, robbery, accessory after the fact, concealing death, and theft by receiving. 

He was sentenced to life imprisonment without parole. 

On direct appeal the Colorado Court of Appeals vacated the conviction for theft by 

receiving, merged the robbery and felony-murder convictions, and otherwise affirmed the 

trial court. The Colorado Supreme Court initially granted certiorari but later denied it as 

having been improvidently granted. The court then denied a petition for rehearing. 

Defendant filed an unsuccessful motion for postconviction relief, and the Colorado 

Supreme Court denied review. 

II. DISCUSSION 

 A. Equitable Tolling 

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), an 

application for relief under 28 U.S.C. § 2254 ordinarily must be filed within one year 

after a state judgment becomes final either by the conclusion of direct review or the 

expiration of time for seeking direct review. See 28 U.S.C. § 2244(d)(1)(A). But “[t]he 

time during which a properly filed application for State post-conviction [relief] is pending 

shall not be counted.” Id. § 2244(d)(2). Equitable tolling may further extend the 

limitations period “if [an applicant] shows (1) that he has been pursuing his rights 

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diligently, and (2) that some extraordinary circumstance stood in his way and prevented 

timely filing.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (internal quotation 

marks omitted). We review for abuse of discretion a district court’s decision to grant or 

deny equitable tolling. See Woodward v. Williams, 263 F.3d 1135, 1142 (10th Cir. 

2001). 

Defendant does not dispute on appeal that the application was untimely filed. The 

Colorado Supreme Court denied his motion for rehearing on direct review on April 7, 

2008. He then had 90 days (actually 91, because the 90th day was Sunday July 6) to 

petition the United States Supreme Court for a writ of certiorari; when that time expired 

on July 7, 2008 (he failed to file a petition), the state judgment became final and the oneyear limitations period began. See Woodward v. Cline, 693 F.3d 1289, 1292 (10th Cir. 

2012). Defendant was entitled to statutory tolling of the one-year limitations period 

while his state postconviction proceedings were pending from April 14, 2009, to April 9, 

2012, see 28 U.S.C. § 2244(d)(2), but 281 days had already elapsed between July 7, 

2008, and April 13, 2009. The remaining 84 days of the limitations period then expired 

on July 2, 2012. Defendant filed his habeas application three days late on July 5, 2012. 

Defendant originally asserted in his § 2254 application that it was timely because 

the Colorado Supreme Court had denied the motion for rehearing on direct appeal on 

April 10, 2008, and therefore the limitations period began to run 90 days later on July 9, 

2008. Using this date, only 278 days of the one-year limitations period would have 

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elapsed before he filed his state postconviction claims and the limitations period would 

have expired on July 5, 2012, the date of filing. 

The State responded that the application was untimely, saying that it appeared that 

“Applicant may have miscalculated the date by relying on the trial court’s notation (in its 

minute orders) for the date on which the Colorado Supreme Court denied his petition for 

rehearing on direct appeal.” Answer at 14, Al-Yousif, No. 1:12-cv-01742 (Aug. 14, 2012) 

(Doc. No. 11) (Answer). The State argued that the April 10 trial-court entry reflected the 

date that the court was notified of the Supreme Court decision, not the date of the 

decision itself. It attached several documents. One was the Supreme Court’s order, 

which displays the date it was issued, April 7, 2008. Another was a document that it 

described as “Data Access state trial court database, case 01CR1861,” Answer at 111; it 

is a printout marked “confidential” that displays an April 10, 2008 entry stating “Order 

Of Ct From The Colo Supreme Ct-petn For Rehearing-denied-,” Answer, Ex. 1 at 8 (Doc. 

No. 11-1). According to the State, “[t]he trial court . . . apparently did not become aware 

of the denial until April 10, 2008—the date reflected in its minute orders.” Answer at 14. 

In reply, Defendant argued that the application was timely and attached the 

document he relied on for the date of April 10, 2008. The document has the heading 

“Integrated Colorado Online Network (ICON).” Ex. 1 to Supp. Amend. at 1, Al-Yousif, 

No. 1:12-cv-01742 (Nov. 26, 2012) (Doc. No. 19-1) (Ex. 1). It appears to contain the 

same information as the document the State attached to its brief but in a different format 

and not marked confidential. It includes an entry that states: 

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4/10/2008 Order 

OF CT FROM THE COLO SUPREME CT-PETN FOR REHEARINGDENIEDEx. 1 at 19. 

In a district-court motion requesting oral argument, Defendant continued to assert 

that the application was timely “based on the official record, [but] to the extent the Court 

is inclined to entertain the State’s contention that [the] application should be barred as 

untimely, [Defendant] should be afforded the opportunity to detail the circumstances that 

would support . . . equitable tolling.” See Mot. for Hr’g/Oral Arg. on all NonEvidentiary-Dependent Dispositive Claims Presented in Pet. for Habeas Relief at 6, 

Al-Yousif, No. 1:12-cv-01742 (Jan. 31, 2013) (Doc. No. 25). The State responded that it 

relied on the Colorado Supreme Court order itself and that the relevant information was 

contained in “public records available through the trial court clerk.” Resp. to Applicant’s 

Mot. for a Hr’g at 3, Al-Yousif, No. 1:12-cv-01742 (Feb. 4, 2013) (Doc. No. 26). It 

argued that Defendant’s motion did not “suggest any basis on which [equitable tolling] 

would apply, and [the State was] aware of none.” Id. Defendant replied that he “relied 

on the Register of Actions given to him by the state court and maintained in the [ICON] 

system,” referring to the exhibit he had attached to his reply in support of his application. 

Reply in Support of Mot. for Oral Arg. at 2‒3, Al-Yousif, No. 1:12-cv-01742 (Feb. 15, 

2013) (Doc. No. 28). He argued that he was entitled to rely on the document because the 

Register of Actions is an official state-court record under Colorado Chief Judicial 

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Directive 5-01 and “memorializes every trial court filing and appellate court action.” Id. 

at 3. 

At a hearing in district court, Defendant argued that “the bottom line is that an arm 

of the Government made a mistake in putting this date of the judgment—I’m sorry—the 

July 7th judgment into the ICON . . . system, which is a public system and . . . becomes a 

certified court document,” Oral Args. of Tr. of Proceedings at 6, Al-Yousif, No. 1:12-cv01742 (Oct. 21, 2013) (Doc. No. 43), and that he “was clearly justified in relying on the 

register of actions that was . . . given to him by the State,” id. at 8. The district court 

applied equitable tolling, without permitting the State to argue in response or make a 

record. Its later order stated that Defendant relied on the date the trial court recorded the 

order on the Registry of Actions, which “[t]he State maintains . . . exclusively, and . . . is 

the only public notice of the entry of court orders.” Aplt. App. at 13–14. The order noted 

that “[t]here [was] no reference to an April 7, 2008 Supreme Court order in the system,” 

id. at 12, and determined that “counsel reasonably relied on that public record in 

calculating the days remaining in the AEDPA limitations period,” id. at 14. The court 

concluded that “[t]he inaccurate recording of the date of the Colorado Supreme Court’s 

order denying rehearing was an extraordinary circumstance beyond counsel’s control.” 

Id. at 13. 

We beg to differ with the district court. “Equitable tolling is a rare remedy to be 

applied in unusual circumstances . . . .” Yang v. Archuleta, 525 F.3d 925, 929 (10th Cir. 

2008) (internal quotation marks omitted). “An inmate bears a strong burden to show 

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specific facts to support his claim of extraordinary circumstances and due diligence.” Id.

at 928 (brackets and internal quotation marks omitted). 

In our view, Defendant failed to satisfy his burden. The gist of his argument is 

that the State misled his attorney because the entry in ICON was incorrect. But that is not 

at all clear. The ICON entries appear to be taken from the trial-court record, and trial 

courts ordinarily enter the date when something happens at that court. For example, the 

entry at issue gives the date for “Order of Ct from the Colo Supreme Ct,” Ex. 1 at 19 

(emphasis added, full capitalization omitted), not “Order of Ct by the Colo Supreme Ct.” 

An entry for January 14, 2002, illustrates the point. It states: “Supreme Ct Ordr of Ct: 

Motn for Ext of Time to File Rec on Interlocutory Appeal - Grtd to and Including Jan 15 

2002 by the Ct 01-10-02.” Ex. 1 at 7 (full capitalization omitted). This certainly appears 

to state that the January 14 entry reflects the receipt by the trial court of a Supreme Court 

order dated January 10. And the published Supreme Court decision of July 1, 2002, 

reversing the suppression of Defendant’s confession, see Al-Yousif I, 49 P.3d at 1165, is 

reflected in a July 3, 2002 entry in ICON, Ex. 1 at 8. Although there may be some 

ambiguity about what the ICON dates mean, Defendant presented no evidence regarding 

what, if anything, his attorney asked when he obtained the document, and what, if any, 

explanation was provided. And the district court refused to hear any proffer or argument 

by the State, which may have clarified the matter.

Moreover, Defendant put on no evidence to demonstrate that he had to resort to, 

and rely on, ICON to determine the filing date of the state supreme court’s decision 

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denying rehearing. In particular, why could he not have obtained a copy of the decision 

from prior defense counsel or from the Colorado Supreme Court itself? We also note that 

the correct date of the decision appears on Westlaw, Al-Yousif v. People, No. 07SC36, 

2007 WL 1395329 (Colo. May 14, 2007), cert. denied as improvidently granted (Mar. 7, 

2008), rehearing denied (Apr. 7, 2008) (follow “History” hyperlink), and the decision 

itself appears on Lexis, Al-Yousif v. Colorado, No. 07SC36, 2008 Colo. LEXIS 351, at *1 

(Colo. Apr. 7, 2008). In short, Defendant did not establish the requisites for equitable 

tolling, and the district court abused its discretion in applying too lenient a standard for 

such tolling. 

B. Miranda

In any event, Defendant loses on the merits of his Miranda claim. Although the 

federal district court ruled in Defendant’s favor, that court’s decision is not entitled to any 

deference. “We review the district court’s legal analysis of the state court decision de 

novo.” Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013) (internal quotation 

marks omitted). 

In contrast, we owe great deference to the decision of the Colorado Supreme Court 

denying Defendant’s Miranda claim. Under AEDPA, a federal court may not grant 

habeas relief to a state prisoner with respect to a claim rejected on the merits in state 

court unless the state-court decision “was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the Supreme Court,” 

28 U.S.C. § 2254(d)(1), or “was based on an unreasonable determination of the facts in 

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light of the evidence presented” in state court, id. § 2254(d)(2). Clearly established law 

consists of “the holdings, as opposed to dicta, of [the Supreme] Court’s decisions as of 

the time of the relevant state-court decision.” Yarborough v. Alvarado, 541 U.S. 652, 

660–61 (2004) (internal quotation marks omitted). A state-court decision is contrary to 

clearly established law if “the state court arrives at a conclusion opposite to that reached 

by [the Supreme Court] on a question of law” or “the state court confronts facts that are 

materially indistinguishable from a relevant Supreme Court precedent and arrives at [an 

opposite] result.” Williams v. Taylor, 529 U.S. 362, 405 (2000). 

“It is settled that a federal habeas court may overturn a state court’s application of 

federal law only if it is so erroneous that there is no possibility fair-minded jurists could 

disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents.” 

Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (per curiam) (internal quotation marks 

omitted). “[E]ven a strong case for relief does not mean the state court’s contrary 

conclusion was unreasonable.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). 

Although “§ 2254(d) stops short of imposing a complete bar on federal court relitigation 

of claims already rejected in state proceedings,” id., it “reflects the view that habeas 

corpus is a guard against extreme malfunctions in the state criminal justice systems, not a 

substitute for ordinary error correction through appeal,” id. (internal quotation marks 

omitted). 

Further, state-court findings of fact are entitled to great deference. Under 28 

U.S.C. § 2254(e)(1), 

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In a proceeding by an application for a writ of habeas corpus by a person in 

custody pursuant to the judgment of a State court, a determination of a 

factual issue made by a State court shall be presumed to be correct. The 

applicant shall have the burden of rebutting the presumption of correctness 

by clear and convincing evidence. 

“The presumption of correctness also applies to factual findings made by a state court of 

review based on the trial record.” Morgan v. Hardy, 662 F.3d 790, 797–98 (7th Cir. 

2011) (citing pre-AEDPA decision in Sumner v. Mata, 449 U.S. 539, 546–47 (1981)); see 

Rolan v. Vaughn, 445 F.3d 671, 678–81 (3d Cir. 2006) (same). 

The Colorado Supreme Court concluded that when the trial court suppressed 

Defendant’s statements, it “required a deeper appreciation of the implications and 

consequences of a waiver than does [Colorado] case law.” Al-Yousif I, 49 P.3d at 1167. 

The court reviewed de novo “the question of whether the defendant sufficiently 

understood his rights to waive them.” Id. It stated the applicable standard: “[C]ourts 

apply a ‘totality of the circumstances’ test . . . holding waivers valid ‘only if the totality 

of the circumstances surrounding the interrogation reveals both an uncoerced choice and 

the requisite level of comprehension’ on behalf of the suspect.” Id. at 1168–69 (quoting 

Moran v. Burbine, 475 U.S. 412, 421 (1986) (further internal quotation marks omitted)). 

In performing this task, said the court, “[t]he courts must necessarily examine the 

objective circumstances surrounding the waiver in an effort to determine the suspect’s 

level of understanding.” Id. at 1169. “Based upon [its] review, including a thorough 

review of the videotaped interview with [Defendant],” the Colorado Supreme Court 

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concluded “that [Defendant] did sufficiently understand his rights and that the waiver 

was, therefore, valid.” Id. at 1167. Accordingly, it reversed the trial court. 

The court “[found] support in the record for the trial court’s determination that 

[Defendant] had English abilities adequate for casual conversation.” Id. at 1170. It 

acknowledged “that when the detectives spoke in lengthy sentences, the defendant was 

more apt to become confused, especially when those sentences were spoken rapidly.” Id.

at 1171. “The Miranda warnings,” however, “were given in unbroken, quickly read, but 

short sentences.” Id. The court observed that Defendant “ask[ed] the detectives for 

clarification when he did not understand a question or a certain word [but] asked no 

questions during the reading of the Miranda warnings.” Id. at 1172. “Based upon [its] 

review of the taped interviews,” the court decided that Defendant “evidenced a sufficient 

level of understanding to permit reliance upon his waiver of Miranda rights.” Id.

The court said that it was not necessary that a waiver be “knowing and intelligent 

in the sense that the tactical error of that decision was . . . perceived,” because “it is not in 

the sense of shrewdness that Miranda speaks of intelligent waiver.” Id. at 1169 (internal 

quotation marks omitted). Thus, “[t]he defendant need not understand every 

consequence of his decision to waive.” Id. In particular: 

[A] defendant’s alienage and unfamiliarity with the American legal system 

should be [considered]. However, the significance of these factors will be 

limited to determining whether a defendant knew and understood the 

warnings that were read to him. The fact that a defendant’s alien status 

may have prevented him from understanding the full, tactical significance 

of his decision to confess will not invalidate his waiver. 

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Id. at 1169–70 (internal quotation marks omitted). Or, as the court later summed up: 

Whether a defendant had the cultural background to understand the origin 

or purpose of constitutional rights, or the tactical implications of waiving 

them, is not at issue. A particular defendant’s length of time in the country, 

education, religion, background, age, and intelligence certainly bear on his 

depth of understanding. But the relevance of those factors in the totality 

analysis here is limited to the simple question of whether the defendant 

grasped three precepts: (1) he did not have to talk, (2) he could have an 

attorney present, and (3) if he did talk, his statements could be used against 

him. 

Id. at 1172. In the court’s view, Dr. Kholwadia’s testimony did not “dispel the 

conclusion that [Defendant] had the necessary level of rudimentary understanding.” Id. 

It said that “[it] look[s] to whether the defendant minimally understood that he did not 

have to talk to the police, that he could request a lawyer, and that, if he spoke, what he 

said could be used against him to obtain a conviction.” Id. It concluded, “Measuring that 

legal standard against the trial court’s findings of historical fact, and our own review of 

the videotape, we determine that [Defendant’s] waiver of his Miranda rights was 

sufficiently knowing and intelligent to pass constitutional muster.” Id. 

The court was not persuaded that Defendant’s request for a lawyer after the second 

Miranda warning at the police station was “evidence that he did not understand his right 

to do so after the first advisement.” Id. After all, there was an important intervening 

event. Defendant “took the officers to the dumpster where the body had been located 

[and] may well have absorbed the extent to which he had implicated himself and began 

having second thoughts.” Id. 

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Defendant complains that “the Colorado Supreme Court reduced [the Miranda] 

protections to . . . ‘whether the defendant minimally understood that he did not have to 

talk to the police, that he could request a lawyer, and that, if he spoke, what he said could 

be used against him to obtain a conviction.’” Aplee. Br. at 33. He contends that clearly 

established law requires more than a “minimal understanding.” Id. at 34 (internal 

quotation marks omitted). But the Colorado Supreme Court recited the correct standard 

twice before inserting the word “minimally.” In context, the phrase “minimally 

understood” meant only that the defendant must understand no more than the following 

“three precepts: (1) he did not have to talk, (2) he could have an attorney present, and (3) 

if he did talk, his statements could be used against him.” Al-Yousif I, 49 P.3d at 1172. A 

federal court should not “needlessly create internal inconsistency in the [state-court] 

opinion” where the state court elsewhere “recite[s] the correct . . . standard.” Holland v. 

Jackson, 542 U.S. 649, 654–55 (2004) (per curiam). 

Defendant also contends that the Colorado Supreme Court failed to consider 

“critical factors in the constitutionally mandated totality-of-the-circumstances analysis.” 

Aplee. Br. at 24. He asserts that clearly established law “required the Colorado Supreme 

Court . . . to consider ‘the particular facts and circumstances surrounding that case, 

including the background, experience, and conduct of the accused.’” Id. at 30 (quoting 

North Carolina v. Butler, 441 U.S. 369, 374–75 (1979) (emphasis omitted)). He says that 

the Colorado Supreme Court “fail[ed] to weigh the extent to which [his] difficulties with 

English and his cultural background may have inhibited his ability to knowingly and 

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intelligently waive his Miranda rights under the totality of the circumstances,” id. at 32, 

“ignore[d] the ‘cursory’ nature of the advisement and the context of the exchange 

between [Defendant] and his interrogators,” id. at 40, and “refus[ed] to weigh the 

differences between the first ‘cursory’ Miranda advisement and the second properly 

delivered Miranda advisement by Detective Vigil,” id. at 44. 

As an initial matter, we note that Defendant is relying on decisions of our circuit 

and other lower federal courts weighing a defendant’s language difficulties, cultural 

background, and familiarity with the criminal-justice system as factors to consider under 

the totality of the circumstances. But “[o]f course, AEDPA permits habeas relief only if 

a state court’s decision is ‘contrary to, or involved an unreasonable application of, clearly 

established Federal law’ as determined by [the Supreme] Court, not by the courts of 

appeals.” Lopez v. Smith, 135 S. Ct. 1, 6 (2014) (per curiam). Defendant also cites 

Supreme Court cases that address waivers of rights other than those protected by 

Miranda. But “Supreme Court holdings—the exclusive touchstone for clearly 

established federal law—must be construed narrowly and consist only of something akin 

to on-point holdings.” House v. Hatch, 527 F.3d 1010, 1015 (10th Cir. 2008). And 

because the Supreme Court has stated the relevant Miranda requirements in general 

terms, the Colorado Supreme Court had considerable “leeway . . . in reaching [the] 

outcome[].” Yarborough, 541 U.S. at 664. 

In any event, contrary to Defendant’s assertions, the Colorado Supreme Court did 

consider the surrounding circumstances. The court discussed Defendant’s English 

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proficiency at length, referencing the videotaped interview and the witness testimony. It 

explicitly stated that Defendant’s cultural background was relevant to whether Defendant 

knowingly and intelligently waived his Miranda rights. It also considered the 

circumstances of the exchange between the officers and Defendant, discussing the “rapid 

reading of the rights . . . and the fact that the position of the form did not allow 

[Defendant] to read along.” Al-Yousif I, 49 P.3d at 1170. The court noted Defendant’s 

different responses to the two stationhouse advisements and determined that intervening 

events may have led to the difference. See id. at 1172. 

Finally, Defendant argues that the Colorado Supreme Court’s finding that he 

understood his Miranda rights is not entitled to the presumption of correctness under 

§ 2254(e). But we have held that whether a defendant understood his Miranda rights is a 

question of fact entitled to deference under AEDPA. See Valdez v. Ward, 219 F.3d 1222, 

1231 (10th Cir. 2000). We must defer to that finding unless Defendant presented clear 

and convincing evidence to the contrary. See id. Defendant did not do so. 

Defendant believes that the record demonstrates that he did not knowingly and 

intelligently waive his Miranda rights. Two trial judges—one state, one federal—agreed 

with him. But the highest state court did not. Because we review that court’s decision 

with great deference under AEDPA, we cannot grant the relief Defendant seeks. 

III. CONCLUSION 

We REVERSE the district court’s grant of habeas relief. 

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