Of the District of Maine, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 05-1251

DANNY LOCKE,

Petitioner, Appellant,

v.

BRUCE W. CATTELL, WARDEN, NEW HAMPSHIRE STATE PRISON, and 

KELLY A. AYOTTE, ATTORNEY GENERAL FOR THE STATE OF NEW HAMPSHIRE,

Respondents, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul Barbadoro, U.S. District Judge]

Before

Lipez, Circuit Judge,

Cyr, Senior Circuit Judge,

and Singal, District Judge. *

Christopher M. Johnson for appellant.

Kelly A. Ayotte, Attorney General, with whom N. William

Delker, Senior Assistant Attorney General was on brief for

appellees.

February 9, 2007
For a more detailed account of the interview see State v. 1

Locke, 813 A.2d 1182, 1186-89 (N.H. 2002).

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SINGAL, District Judge. Danny Locke (“Locke”) was convicted

in New Hampshire Superior Court of conspiracy to commit robbery,

felony robbery, first degree assault and second degree murder

relating to the robbery and death of Roland Labranche. The

Supreme Court of New Hampshire upheld the convictions. State v.

Locke, 813 A.2d 1182, 1193 (N.H. 2002). Locke now appeals the

district court’s order denying his petition for writ of habeas

corpus. A certificate of appealability was granted solely on the

issue of whether Locke was in custody after he implicated himself

in the robbery. Because the state court decision that Locke was

not in custody at any point during the interview was not an

unreasonable application of clearly established federal law, we

affirm.

I. BACKGROUND

We recount here only the relevant, undisputed facts related

to the interview of Locke. A statement of facts relating to the 1

robbery and murder of Roland Labranche can be found in State v.

Locke, 761 A.2d 376, 377-78 (N.H. 1999).

In the early morning hours of June 29, 1996, Roland

Labranche was robbed and beaten to death on Pierce Island in New

Hampshire. On July 2, 1996, Christopher Rockett (“Rockett”)

admitted his participation in the robbery and murder and
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implicated Locke. Four police officers, dressed in plain

clothes, drove in two unmarked police cars to Locke’s residence,

in Concord, New Hampshire. After Detective Ronchi and Sergeant

Yeardi knocked on the door, Detective Ronchi identified himself

and told Locke that he was investigating an incident that had

occurred in Portsmouth. Locke agreed to accompany the officers

to the State Police Headquarters (“Headquarters”) after he

dressed.

Locke was transported to the Headquarters in an unmarked

police car, which he entered without assistance. Both at Locke’s

residence and en route to the Headquarters, Locke was told that

he was not in custody and was free to leave. Locke and the

officers arrived at the Headquarters shortly before 10:00 p.m.

Locke exited the car. Upon arrival, Detective Ronchi led Locke

past Rockett, who was standing outside the Headquarters with

another officer, to a third-floor interview room. Again, Locke

was told that he need not stay or speak with the police.

Initially, Locke denied being in Portsmouth on the night of

June 28, 1996. Detective Ronchi responded by informing Locke

that he did not believe Locke’s story and that he was

investigating a homicide. After consenting to a search of his

residence, Locke asked to change his statement. Locke stated

that he and Rockett had gone to Hampton Beach on the night of

June 28, but that Locke had fallen asleep in the back of the car
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on the way home. Locke further stated that when he awoke, a

third person was in the car. When Detective Ronchi asked whether

that person was Matthew Zola, Locke replied that “he [Locke]

didn’t want to be involved in this.” Detective Ronchi responded

by again informing Locke that he could leave and motioning toward

the door, but Locke stayed seated and did not request to leave.

Detective Ronchi reinitiated conversation and informed Locke

that Rockett had admitted being on Pierce Island on the night of

the robbery and murder. Locke again stated that his only memory

of that evening was leaving Hampton and falling asleep in the

car. In addition, Locke requested to speak with Rockett.

Detective Ronchi again stated that he did not believe Locke was

being truthful and told Locke that witnesses on Pierce Island

had seen two persons entering a car identified as the victim’s.

Locke then asked whether he had any rights. The detective stated

that Locke was not under arrest, not in custody and he was free

to leave at any time. Locke did not leave nor did he ask to

leave or be driven home.

Again, Detective Ronchi initiated questioning. During this

line of questioning, Locke admitted to being on Pierce Island on

the night of June 28 and participating in the robbery of Roland

Labranche with Rockett. Locke provided details of the robbery,

stating that he knelt down, held the victim’s head and told the

victim that “it would all be over in a minute.” Locke stated
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that Rockett had knocked the victim to the ground, but that Locke

had become afraid and ran away as Rockett was going through the

victim’s pockets. Locke stated that he had looked back to see

Rockett kicking the victim, and that he soon thereafter returned

to Concord without Rockett.

The detective again informed Locke that he did not believe

his story and that Rockett had provided a different version of

the events. Detective Ronchi then arranged a meeting between the

petitioner and Rockett. Rockett entered the interview room where

Locke, Detective Ronchi and Sergeant Yeardi were present and told

Locke: “Danny, go ahead and tell them. They know everything.

They knew everything before they got here.” Locke responded by

stating: “We had an agreement never to talk to anybody about

this.” Detective Ronchi then ended the meeting and removed

Rockett from the interview room.

After the initial encounter with Rockett, Locke stood and

walked into the hallway. Sergeant Yeardi “ran into” Locke in the

hallway and had a brief discussion with Locke, during which he

stated that someone would be with Locke in a few minutes.

Sergeant Yeardi neither blocked Locke’s path nor told him to go

back into the interview room.

Next, Detective Ronchi returned to the interview room and

again stated that he did not believe Locke was telling the whole

truth. Locke continued to maintain that his only involvement was
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in holding the victim’s head and telling him it would all be over

soon. 

Detective Ronchi then initiated a second meeting between

Locke and Rockett. Rockett was brought into the interview room

by the police. Although no police officers were present in the

interview room, the police monitored the conversation through an

adjacent observation room and could observe both Locke and

Rockett. During this meeting, Locke was visibly upset. After

twenty minutes, the police ended the second meeting and Rockett

was escorted out of the interview room.

After this second meeting with Rockett, Detective Ronchi

asked Locke to accompany him into another interview room, and

stated that Locke did not have to go with him. Locke agreed to

accompany the detective into the second interview room. During

this meeting, Locke admitted to participating in both the robbery

and the murder. He stated: “Chris and I both were kicking the

man, and that I knelt down and put my hand over the man’s mouth

to prevent him from screaming.” After this statement, the

petitioner indicated that he did not want to talk anymore and the

interview was concluded. Locke was then arrested. At no point

prior to either admission was Locke advised of his Miranda

rights.

On February 14, 2001, a jury found Locke guilty of

conspiracy to commit robbery, felony robbery, first degree

assault and second degree murder. Locke’s statements implicating
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himself in the robbery and murder were admitted at trial. The

New Hampshire Supreme Court upheld the convictions. Locke, 813

A.2d at 1193. In affirming that Locke was not in custody at any

point during the interview, the New Hampshire Supreme Court

stated: “The defendant was clearly not in custody at the

beginning of his questioning. . . . Nor was the defendant in

custody at any time during the course of the interview.” Id. at

1188-89. The New Hampshire Supreme Court emphasized that Locke

repeatedly was told that he was not in custody and that he was

free to leave. Id. at 1189.

On April 29, 2004, Locke filed a petition for writ of habeas

corpus in federal court. The district court entered its judgment

against Locke on January 14, 2005 and this timely appeal

followed. A certificate of appealability was granted solely on

the issue of whether Locke was in custody after he implicated

himself in the robbery.

II. STANDARD OF REVIEW

We review the federal district court’s denial of Locke’s

petition for writ of habeas corpus de novo. Johnson v. Norton,

249 F.3d 20, 26 (1st Cir. 2001) (stating that review of a federal

district court’s legal determinations is de novo). Our review,

however, like that of the district court, is ultimately governed

by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2254(d) (2006).
Although there are additional grounds for relief under AEDPA, 2

Locke does not assert that the state court decision was “an

unreasonable determination of the facts in light of the evidence”

nor does he argue that the decision was “contrary to . . . clearly

established Federal law.” See 28 U.S.C. § 2254(d).

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Under AEDPA, an application for writ of habeas corpus by a

person in state custody that was adjudicated on the merits will

not be granted unless the decision of the state court “resulted

in a decision that . . . involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” Id. § 2254(d)(1). Clearly 2

established federal law means “the holdings, as opposed to the

dicta, of [the Supreme Court’s] decisions as of the time of the

relevant state-court decision.” Williams v. Taylor, 529 U.S.

362, 412 (2000).

In his petition, Locke asserts that the state court decision

was an unreasonable application of clearly established federal

law. A state court decision is an “unreasonable application” of

federal law when “the state court identifies the correct

governing legal principle from [Supreme Court] decisions but

unreasonably applies that principle to the facts of the

prisoner’s case.” Id. at 413. It is not sufficient for the

federal court to determine that the state court judgment was

incorrect or erroneous; rather, the application of the law must

be objectively unreasonable. See id. at 411; accord Castillo v.

Matesanz, 348 F.3d 1, 9 (1st Cir. 2003).
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Furthermore, in determining whether a state court decision

is an “unreasonable application” of clearly established federal

law, the specificity of the legal rule must be considered.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). As the Supreme

Court indicated in Yarborough, where the legal test is specific,

the range of reasonable judgments is narrow. Id. Where,

however, the legal test is general, there is a broader range of

reasonable judgments. Id. “Applying a general standard to a

specific case can demand a substantial element of judgment. . . .

The more general the rule, the more leeway courts have in

reaching outcomes in case by case determinations.” Id.

Therefore, where the legal rule is general and review of the

state court decision is under the deferential standard of §

2254(d)(1), state courts have substantial leeway in reaching a

reasonable decision. See id. at 665.

III. THE CUSTODY DETERMINATION

In Miranda v. Arizona, the Supreme Court first recognized

that warnings alerting a person as to his constitutional rights

must be given prior to custodial interrogations. 384 U.S. 436,

458 (1966). A person must therefore be “in custody” before

Miranda warnings are due. Thompson v. Keohane, 516 U.S. 99, 102

(1995). The Court in Miranda noted that the term “custodial

interrogation” signified “questioning initiated by law

enforcement officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any significant
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way.” 384 U.S. at 444. In Thompson v. Keohane, the Supreme

Court explained the process courts must use to make the custody

determination:

Two discrete inquiries are essential to the [“in

custody”] determination: first, what were the

circumstances surrounding the interrogation; and

second, given those circumstances, would a reasonable

person have felt he or she was not at liberty to

terminate the interrogation and leave. Once the scene

is set and the players’ lines and actions are

reconstructed, the court must apply an objective test

to resolve “the ultimate inquiry”: “[was] there a

‘formal arrest or restraint on freedom of movement’ of

the degree associated with a formal arrest.”

516 U.S. at 112 (quoting California v. Beheler, 463 U.S. 1121,

1125 (1983) (per curiam)). The subjective views of the

interrogating officers or the person being interviewed have no

bearing on this inquiry. Yarborough, 541 U.S. at 663.

Turning to the present case, we must determine whether the

state court determination that Locke was not in custody was an

unreasonable application of this clearly established federal test

for custody determination. In Yarborough, the Supreme Court

indicated that the custody determination is a general test, where

substantial judgment is demanded in applying the law to the facts

of a given case. Id. at 665. State courts, therefore, are

provided with ample leeway in reaching a reasonable decision.

See id.

Locke concedes that he was not in custody at the beginning

of the interview. This is supported by the fact that Locke

agreed to accompany the plain clothed officers to the
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Headquarters and was told numerous times that he did not have to

speak with them. The central inquiry, then, is whether Locke was

in custody after admitting his participation in the robbery.

In this close case, certain facts weigh in favor of finding

that Locke was in custody during the latter portion of his

interview at the Headquarters. Locke repeatedly was confronted

with his co-defendant’s statements implicating him in the robbery

and murder, and he twice met with Rockett face-to-face while the

police monitored the conversation. See, e.g., Tankleff v.

Senkowski, 135 F.3d 235, 244 (2nd Cir. 1998) (finding a suspect

“certainly” in custody after the police confronted the suspect

with a statement by the victim implicating him in the crime).

But cf. Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977) (holding

that a police officer’s false statement regarding incriminating

fingerprints at the scene of the crime did not transform the

interview into a custodial interrogation). Similarly, Detective

Ronchi continually stated that he did not believe Locke was

telling the truth. See Stansbury v. California, 511 U.S. 318,

324-25 (1994) (finding that an officer’s suspicions conveyed to a

suspect may bear upon the custody determination). But see

Yarborough, 541 U.S. at 664 (considering the police officer’s

appeal to defendant’s interest in telling the truth when

evaluating factors that weighed against a finding that defendant

was in custody). In addition, by the time Locke made the

admission to participating in the robbery, it was late at night
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in a building generally closed to the public at that time of day.

See United States v. Nishnianidze, 342 F.3d 6, 13-14 (1st Cir.

2003) (stating that the early morning hour tended toward a

finding of custody). In the end, the interview lasted for more

than three hours. See Yarborough, 541 U.S. at 665 (contrasting

the thirty minute non-custodial interview in Oregon v. Mathiason,

429 U.S. 492, 495 (1977), with the two hour interview of

Alvarado, which pointed towards a custodial interrogation). But

see United States v. Pagan-Santini, 451 F.3d 258, 263 (1st Cir.

2006) (finding defendant not in custody where the interview

lasted nine hours and defendant rejected breaks or a deferral of

questioning to a second day). Finally, when Locke “ran into”

Sergeant Yeardi in the hallway outside the interview room, he was

told that someone would be with him in a few minutes.

Ultimately, Locke asserts that his admission that he was

involved in the robbery necessarily transformed the interview

into a custodial interrogation. Indeed, several state courts

have found custodial interrogations following an admission. See,

e.g., Jackson v. State, 528 S.E.2d 232, 235 (Ga. 2000) (“A

reasonable person in [defendant’s] position, having just

confessed to involvement in a crime in the presence of law

enforcement officers would, from that time forward, perceive

himself to be in custody . . . .”); Commonwealth v. Smith, 686

N.E.2d 983, 987 (Mass. 1997) (“[A]fter the defendant told the

police that he was there to confess to the murder of his girl
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friend, given the information the police already had received

about the murder, we conclude that if he had wanted to leave at

that point, he would not have been free to do so.”); People v.

Ripic, 587 N.Y.S.2d 776, 782 (N.Y. App. Div. 1992) (“[I]t is

utter sophistry to suggest that a person in defendant’s position,

having made such an incriminating statement to police officers

concerning the very homicide they were investigating, would feel

that she was not under arrest and was free to leave.”).

Nonetheless, no Supreme Court case supports Locke’s contention

that admission to a crime transforms an interview by the police

into a custodial interrogation. Therefore, there is no clearly

established federal law on which to base a finding of

unreasonableness. See, e.g., Carey v. Musladin, 127 S.Ct. 649,

654 (2006) (“Given the lack of holdings from [the Supreme Court]

regarding the potentially prejudicial effect of spectators’

courtroom conduct of the kind involved here, it cannot be said

that the state court ‘unreasonably applied clearly established

Federal law.’” (quoting 28 U.S.C. § 2254(d)(1))); Stansbury, 511

U.S. at 325 (“Even a clear statement from an officer that the

person under interrogation is a prime suspect is not, in itself,

dispositive of the custody issue, for some suspects are free to

come and go until the police decide to make an arrest.”).

Because Yarborough was decided after the New Hampshire

Supreme Court decision, Locke, 813 A.2d at 1182, it is not

clearly established federal law for purposes of our review. See
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Williams, 529 U.S. at 412. Nonetheless, the facts of Yarborough

are instructive. In Yarborough, during an interview with a Los

Angeles County Sheriff’s detective, the defendant, Michael

Alvarado, initially denied any involvement in a carjacking and

murder. 541 U.S. at 656. Unpersuaded by the denial, the

detective encouraged Alvarado to tell the truth. Id. at 656-57.

Alvarado first admitted his participation in the carjacking but

denied any knowledge of a gun or the murder. Id. at 657. After

the detective again appealed to Alvarado’s sense of honesty and

the need to bring the victim’s killer to justice, Alvarado

confessed to knowing that the other carjacker had a gun and to

helping hide the gun after the shooting. Id. at 657-58. The

Supreme Court upheld the state court’s determination that

Alvarado was not in custody. Id. at 665.

In the absence of clearly established federal law on this

issue, we cannot say that the state court was unreasonable in its

decision that Locke was not in custody. Weighing against the

already outlined factors suggesting a custodial interrogation are

facts tending to show that the tenor of the interview did not

change after the initial admission and that a reasonable person

in Locke’s position would continue to believe that he was free to

terminate the interview and leave. Most significantly, Locke was

told at least five times that he did not have to speak with the

police and that he was free to leave. See United States v.

Muegge, 225 F.3d 1267, 1271 (11th Cir. 2000) (finding a non-
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custodial interview primarily because the suspect was told

directly that he was free to leave); United States v. Lanni, 951

F.2d 440, 442-43 (1st Cir. 1991) (indicating that statements by

questioning officers that defendant was free to leave tend

against a finding of custody). Although after the initial

admission, Locke was not again explicitly told he was free to

leave, he was not prohibited from leaving or terminating the

interview. Further, when prior to the initial admission, Locke

twice expressed hesitation in speaking with the police, he was

told that he was free to terminate the interview and leave. 

When Locke ran into Sergeant Yeardi in the hallway outside

the interview room, his path was not blocked nor was he told to

return to the interview room. See Nishnianidze, 342 F.3d at 14

(indicating that the lack of restraint on defendant’s movement

favored a finding that defendant was not in custody); United

States v. Griffin, 922 F.2d 1343, 1349, 1350-51 (8th Cir. 1990)

(providing that a suspect’s unrestrained freedom of movement

“would tend to mitigate the existence of custody at the time of

questioning”). Further, Locke elected to accompany an officer

into a second interview room after being given the choice. See

id. 

If this case were before us on de novo review, we might well

reach a different result. We believe it likely that a reasonable

person would not have felt that he was at liberty to terminate

the interrogation and leave after confessing to a violent crime
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and learning that a co-defendant has implicated him.

Reluctantly, however, we conclude that such a holding by the

state court is not an unreasonable application of clearly

established federal law. Thus, we are constrained by the

deferential standard of review to affirm the state court’s

determination that Locke was not in custody. “Under § 2254(d)’s

‘unreasonable application’ clause, a federal habeas court may not

issue the writ simply because that court concludes in its

independent judgment that the state-court applied [the law]

incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002)

(per curiam). In the absence of any case from the Supreme Court

supporting Locke’s contention that confession to a serious crime

transforms an interview by the police into a custodial

interrogation, we cannot say that the state court’s determination

was an unreasonable application of clearly established federal

law. See, e.g., Carey v. Musladin, 127 S.Ct. 649, 654 (2006).

IV. CONCLUSION

For these reasons, the decision of the district court is

affirmed.