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Braxton J. Cobb v. Secretary of Department of

November 14, 2011

BRAXTON J. COBB, PETITIONER,
v.
SECRETARY OF DEPARTMENT OF CORRECTIONS, RESPONDENT.



ORDER

Petitioner, a State of Florida inmate proceeding pro se, petitions for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 and challenges the validity of his conviction for sexual battery on a victim less than twelve years of age. (Dkt. #1). Petitioner challenges his conviction on the sole ground of trial court error.

Procedural Background

An information charged Petitioner, a person under eighteen years of age,*fn1 with committing a sexual battery upon the eleven year-old victim. (Dkt. #15, Ex. 1, Vol. I, p. 48). Before trial, Petitioner's counsel moved to suppress Petitioner's confessions or admissions. (Dkt. #15, Ex. 1, Vol. I, pp. 43-45). The state trial court denied the motion after a hearing. (Dkt. #15, Ex. 1, Vol. I, pp. 110-16). A jury convicted Petitioner and he was sentenced to one hundred eleven months imprisonment followed by twenty years of sex offender probation. Petitioner appealed. On June 10, 2009, the state district court of appeal affirmed Petitioner's conviction and sentence in a per curiam decision without written opinion. (Dkt. #15, Ex. 4). Petitioner filed no petition for writ of certiorari in either the Florida Supreme Court or the United States Supreme Court.

Petitioner filed his Section 2254 petition on August 9, 2010. Respondent does not challenge the timeliness of the petition. Upon review, the petition must be DENIED.

Standard of Review

The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), governs this proceeding. Wilcox v. Florida Dep't of Corr., 158 F.3d 1209, 1210 (11th Cir. 1998), cert. denied, 531 U.S. 840 (2000). Section 2254(d), which creates a highly deferential standard for federal court review of state court adjudications, states in pertinent part:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

In Williams v. Taylor, 529 U.S. 362, 412-13 (2000), the Supreme Court interpreted this deferential standard:

In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied--the state-court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal Law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.

"The focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable, . . . an unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. at 694. See Brown v. Head, 272 F.3d 1308, 1313 (11th Cir. 2001) ("It is the objective reasonableness, not the correctness per se, of the state court decision that we are to decide."). The phrase "clearly established Federal law" encompasses only the holdings of the United States Supreme court "as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. at 412.

The purpose of federal review is not to re-try the state case. "The [AEDPA] modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002). Federal courts must afford due deference to a state court's decision. "AEDPA prevents defendants - and federal courts - from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts." Renico v. Lett, ____ U.S. ____, 130 S. Ct. 1855, 1866 (2010).

In a per curiam decision without a written opinion the state appellate court affirmed Petitioner's conviction and sentence on direct appeal. The affirmance warrants deference under Section 2254(d)(1) because "the summary nature of a state court's decision does not lessen the deference that it is due." Wright v. Moore, 278 F.3d 1245, 1254 (11th Cir.), reh'g and reh'g en banc denied, 278 F.3d 1245 (2002), cert. denied sub nom Wright v. Crosby, 538 U.S. 906 (2003).

Petitioner bears the burden of overcoming a state court factual determination by clear and convincing evidence. "[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." 28 U.S.C. § 2254(e)(1). This presumption of correctness applies to a finding of fact, but not to a mixed determination of law and fact. Parker v. Head, 244 F.3d 831, 836 (11th Cir.), cert. denied, 534 U.S. 1046 (2001).

Factual Background*fn2

The police were notified about an alleged kidnapping and rape involving an eleven year old victim.*fn3 The victim told the police that "JJ" was the perpetrator and Petitioner knew "JJ's" identity. The police encountered Petitioner in the course of the investigation on February 8, 2007. Petitioner's aunt took Petitioner to the police station that day to speak with detectives because Petitioner was alleged to have had information about the case. After some brief questioning, Petitioner, at his aunt's request, left the police station. Petitioner was not a suspect at that time. While at school the following day, Petitioner contacted his school resource officer, Tina Coleman, and told her that he had had consensual sexual intercourse with the victim.*fn4 Coleman advised local law enforcement about Petitioner's statements and officers responded to the school. Petitioner admitted to Detective Christopher Lynn that he had had intercourse with the victim. Petitioner was arrested and, after having been advised of his Miranda rights and signing a Miranda waiver, gave a recorded statement to the police in which he again admitted having had sex with the victim.

Ground One

Petitioner contends that the state trial court erred by denying his motion to suppress his confessions/admissions. Before trial, counsel moved to suppress "any and all statements by defendant to law enforcement in this case" because the statements were "not knowingly and voluntarily [given] and . . . any confessions or admissions were obtained by threats, promises, or an assertion of improper influence . . . in violation of the United States Constitution, [the] Florida Constitution and Miranda." (Dkt. #15, Ex. 1, Vol. I, pp. 43-44). The state district court of appeal summarily affirmed the trial court's denial of the motion. (Dkt. #15, Ex. 4).

Petitioner argues in this federal petition that "[t]he state court made a finding that Petitioner was not in custody and thus no custodial interrogation took place when Detective Lynn conducted the February 9, 2007, interview at Mulberry High School. This finding is unreasonable in light of the facts presented at the suppression hearing and the clearly established principles of Miranda and its progeny." (Dkt. #1, p. 7; #22, p.4). Petitioner further contends that the state court erroneously determined that his pre-arrest and post-arrest statements were admissible despite the "question first, Miranda last" tactic.*fn5 Petitioner contends that the rejection of his motion to suppress resulted in a denial of his rights under the Fifth, Sixth, and Fourteenth Amendments and the Florida Constitution.*fn6

Miranda warnings apply only to "custodial interrogation." Miranda v. Arizona, 384 U.S. 436, 444 (1966). When determining whether a suspect is in custody, "a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there [was] a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 320 (1994). The Supreme Court has defined custodial interrogation as "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 way." Yarborough v. Alvarado, 541 U.S. 652, 661 (2004). "The initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned." Stansbury v. California, 511 U.S. at 320. See also J.D.B. v. North Carolina, ___ U.S. ___, 131 S.Ct. 2394, 2406 (2011) ("[W]e hold that so long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis [under Miranda] is consistent with the objective nature of that test."). The relevant question is how a reasonable person in the suspect's position would perceive his circumstances. Yarborough v. Alvarado, 541 U.S. at 662.

Whether a suspect is "in custody" and subjected to police questioning, entitling him to Miranda warnings, presents two discrete inquires: "[F]irst, 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." Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal footnote omitted). The first inquiry is factual and a state court's findings on these "scene and action-setting questions" are entitled to a presumption of correctness. Thompson v. Keohane, 516 U.S. at 112. The second inquiry, the state court's determination of whether a suspect is "in custody" and entitled to Miranda warnings, is a mixed question of law and fact requiring independent review that is not entitled to a presumption of correctness under Section 2254. Thompson v. Keohane, 516 U.S. at 102, 112-13. "Habeas relief is available under Section 2254 (d)(1) only if the state court's decision is objectively unreasonable." Yarborough v. Alvarado, 541 U.S. at 665.

During the suppression hearing Detective David Cavanah testified that he responded to a call for a reported kidnapping and sexual battery. (Dkt. #15, Ex. 1, Vol. V, transcript of October 22, 2007, suppression hearing, p. 11). The victim told Cavanah that Petitioner knew the alleged perpetrator and that he could tell the police the perpetrator's name. While the police were interviewing the victim at her home, they observed Petitioner in the neighborhood. Petitioner was not a suspect at that time. Petitioner's aunt voluntarily drove him to the police station where the police questioned him for about half an hour. During the interview, Cavanah made no threats or promises to Petitioner and did not coerce him into speaking with the police. Petitioner was free to leave the interview at any time and he, in fact, left on his own accord. (Dkt. #15, Ex. 1, Vol. V, transcript of October 22, 2007, suppression hearing, pp. 28-29).

Officer Tina Coleman, a school resource officer at Mulberry High School, testified that Petitioner sought her out while at school on February 9, 2007, and told her that he had had consensual sex with the victim. (Dkt. #15, Ex. 1, Vol. V, transcript of October 24, 2007, suppression hearing, p. 11). Coleman made no threats or promises to Petitioner and did not use coercive techniques to elicit information from him. Based on Petitioner's statements, Coleman contacted the Polk County Sheriff's Office and officers responded to the school.

Detective Christopher Lynn testified that he responded to Mulberry High School based upon Officer Coleman's report to the Polk County Sheriff's Office. Coleman told Lynn that Petitioner had admitted to having consensual intercourse with the victim. (Dkt. #15, Ex. 1, Vol. V, transcript of October 22, 2007, suppression hearing, pp. 36-37). Based on that information, Petitioner was summoned from class. Petitioner requested to speak to Lynn outside the school and again admitted to the sexual relations with the victim. Three or four of Petitioner's family members were present outside of the school near Petitioner when he spoke to Lynn.*fn7 Lynn attempted to record the conversation between himself and Petitioner but the tape proved inaudible. Lynn did not give Petitioner Miranda warnings while speaking to Petitioner at the school. Lynn did not threaten Petitioner, did not make any promises to him, or use any coercive technique to ...


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