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                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-14828
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:09-cv-00745-JDW-TGW



RANDALL BURCH,

                                                         Petitioner - Appellant,

                                  versus

SECRETARY, DOC,
FLORIDA ATTORNEY GENERAL,

                                                      Respondents - Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (August 23, 2013)

Before MARCUS, MARTIN and FAY, Circuit Judges.

PER CURIAM:
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       Randall Burch, a Florida prisoner, appeals the district court’s denial of his

pro se petition for habeas corpus under 28 U.S.C. § 2254. Although Burch raised a

number of issues in his habeas petition, we issued a certificate of appealability

(COA) on the following issue only: “whether Mr. Burch’s confession to law

enforcement that was introduced at his trial was coerced and obtained in violation

of Miranda v. Arizona, 

, 

 (1966) and Edwards v.

Arizona, 

, 

 (1981).” Burch v. Sec’y, Fla. Dep’t of

Corr., No. 12-14828 at 4 (11th Cir. Dec. 21, 2012) (order granting “a limited

COA”). Upon further review of Burch’s claim, we affirm the district court’s denial

of habeas relief.

                                     I.    BACKGROUND

       The following facts are relevant to our disposition of Burch’s appeal: 1 in

August 2003, the Sarasota County Sheriff’s Office began investigating the

disappearance of Shane Patrick. In January 2004, Patrick’s body was found and

the story of its discovery was published in the local newspaper. The newspaper
1
   These facts are drawn from the state court record, including the trial court’s order denying
Burch’s motion to suppress his statement. See 28 U.S.C. § 2254(e)(1) (“In a proceeding
instituted 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.”). Burch does not challenge the Florida courts’ findings of fact. He
does, however, include in his appellate brief two additional facts not presented to the Florida
courts: specifically, that in addition to his lighter and keys, the Sheriff’s detectives confiscated
his wallet at the outset of his interview; and that during his smoking breaks, he was “‘made’ to
sit on a specific bench.” Because no evidence of these facts was presented to the state courts, we
may not consider them in our analysis of his appeal. See Cullen v. Pinholster, ___ U.S. ___,
___, 

, 1400 (2011) (“[E]vidence introduced in federal court has no bearing on
§ 2254(d)(1) review.”).
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story indicated that Patrick’s death was a homicide. Either the same day that the

story ran, or the next, Burch contacted his father and told him he wanted to speak

to Sheriff’s detectives.

         Burch arrived at the Sheriff’s Office between 9:00 and 9:30 p.m. on January

28, accompanied by his father, mother, and girlfriend. Sherriff’s Detectives

Brewer and Valentino met Burch and his family in the lobby, and then escorted

Burch back to the interview room alone. Before entering the interview room, the

detectives did a routine, “quick, nonintrusive patdown” to make sure that Burch

did not have any weapons, and confiscated Burch’s cigarettes and lighter. The

detectives returned these items to him later, when Burch took smoking breaks from

his interview.

         Immediately upon entering the interview room, Detective Brewer informed

Burch that he was not under arrest, and that he had not “been charged or anything

like that.” Then, to be “safe rather than sorry,” Detective Brewer read Burch his

Miranda 2 rights.

         Burch was never handcuffed during his interview, and the detectives left

their weapons in the locker outside the interview room. Although one of the

interview room’s two doors was locked, Burch was not otherwise restrained.

Indeed, during the course of his interview, the detectives offered him food, a


2
    Miranda v. Arizona, 

, 

 (1966).
                                                3
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beverage, and smoking breaks, and twice asked whether he wanted to speak to his

parents and girlfriend. Burch took the detectives up on their offers, accepting a

beverage, and twice taking breaks for a cigarette outside. Detectives accompanied

Burch on his smoking breaks.

      Throughout the course of his conversation with the detectives, Burch never

gave any indication that he did not wish to speak, and the detectives never

confronted him with any evidence of guilt. Indeed, despite recounting that he had

“been told many times never to talk to a cop without an attorney present,” Burch

emphasized that “[n]obody’s to blame but myself,” and that he wanted “to talk,”

“to tell you guys absolutely everything,” and “to get everything off my

conscience.” Burch indicated that he was interested in a “plea agreement,” and the

detectives told him that plea agreements “can happen sometimes,” but they never

promised, or even implied that Burch would receive one. Burch then confessed to

killing Patrick. He acknowledged that by doing so he would likely be arrested.

Burch’s interview wrapped up sometime in the early morning hours on January 29,

when he was arrested for Patrick’s murder.

      On this record, the state trial court determined that Burch was not in custody

when he was interviewed at the Sheriff’s Office, and that his statement was

voluntary. State v. Burch, No. 2004-CF-1581-NC (Fla. Cir. Ct. Aug. 9, 2005)

(Order Denying Defendant’s Amended Motion to Suppress Statements). In


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reaching its conclusion that Burch was not in custody, the trial court relied

“especially on the fact that [Burch] initiated contact with detectives, came to the

Sarasota Sheriff’s Office on his own, was never handcuffed, was never confronted

with specific evidence of guilt, and detectives did nothing to suggest that [he] was

in custody.” Id. The court expressly rejected the suggestion that Burch was in

custody simply because Detective Brewer read him his Miranda rights. Id.

      In determining that Burch’s statement was voluntary, the trial court

acknowledged that Burch “was certainly hoping for a plea bargain,” but stated that

“a careful review of his statement does not show any explicit suggestion of

leniency, nor any express quid pro quo bargain for the confession. Accordingly,

[Burch’s] statements were not rendered involuntary on that basis.” Id. The court

also noted that “the reading of [Miranda] rights and [Burch’s] acknowledgement of

understanding the rights” supported its finding that his statement was voluntarily

given. Id.

      Following a jury trial, Burch was convicted of first-degree murder and

sentenced to life imprisonment. On direct appeal he argued, among other things,

that the trial court should have suppressed his confession because he was in

custody at the time he spoke to Sheriff’s detectives, his Miranda warnings were

invalid, and, in any event, his statement was involuntary. The Florida appellate




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court affirmed Burch’s conviction and sentence without opinion. See Burch v.

State, 

 (Fla. 2d DCA 2006) (table).

       After Burch exhausted his state post-conviction remedies, he filed the

§ 2254 petition now before us, in which he again raised his claim that his

confession should have been suppressed because it was taken in violation of

Miranda, and it was involuntary. The district court denied Burch’s petition,

determining that the state court’s denial of Burch’s motion to suppress his

confession “did not result in a decision that was contrary to, or an unreasonable

application of, United States Supreme Court precedent.” In reaching this

conclusion, the district court reviewed the same facts as the state trial court, but

added to the mix that at the original hearing on Burch’s motion to suppress,

Detective Brewer “testified that during the time [Burch] was with him in the

employee area of the Sheriff’s Office where the interview room was located,

[Burch] would have been free to leave the Sheriff’s Office at any time had he

requested to leave.”3

       Pursuant to our grant of a limited COA, this appeal followed.


3
  The district court’s observation that Burch “would have been free to leave the Sheriff’s Office
at any time had he requested to leave,” based on Detective Brewer’s testimony at the suppression
hearing, was irrelevant to the custody analysis. See Stansbury v. California, 

, 323,

, 1529 (1994) (“Our decisions make clear that 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.”). However, the state court
did not rely on this factor in its suppression order, and thus the district court’s error does not
influence our determination that habeas relief is not warranted here.
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                                II.   DISCUSSION

      Burch makes three arguments in his appeal. First, he disagrees with the state

court’s and the district court’s determination that he was not in custody for

purposes of Miranda when he gave his statements to the Sarasota County Sheriff’s

detectives. Next, assuming that he was in custody, Burch contends that the

Miranda warnings given by Detective Brewer at the beginning of his interview

were not sufficient because they “were so denigrated . . . as to render the

importance of those constitutional warnings to be in fact, no warnings at all.”

Finally, Burch asserts that, in any event, his confession was involuntary because it

was obtained through “false statements, deception and trickery,” and especially

because he “was misled to believe that he had to give a full and complete statement

before a plea offer ‘could’ be considered.”

      “When examining a district court’s denial of a § 2254 habeas petition, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Grossman v. McDonough, 

, 1335 (11th Cir.

2006). “But we are highly deferential to the state court’s decision on the merits of

a claim.” Connor v. Sec’y, Fla. Dep’t of Corr., 

, 620 (11th Cir. 2013)

(quotation marks omitted).

      If a state court has adjudicated the merits of a claim, we may not grant
      habeas relief unless the state court’s decision “was contrary to, or
      involved an unreasonable application of, clearly established Federal
      law, as determined by the Supreme Court of the United States” or
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       “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.”

Id. (quoting 28 U.S.C. § 2254(d)).

                           A. WHETHER BURCH WAS IN CUSTODY

       “[T]he issue whether a suspect is ‘in custody,’ and therefore entitled to

Miranda warnings, presents a mixed question of law and fact.” Thompson v.

Keohane, 

, 102, 

, 460 (1995).

       Two discrete inquiries are essential to the 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. . . .
       The first inquiry . . . is distinctly factual. State-court findings on these
       scene- and action-setting questions attract a presumption of
       correctness under 28 U.S.C. § 2254(d).[4] The second inquiry,
       however, calls for application of the controlling legal standard to the
       historical facts. This ultimate determination . . . presents a mixed
       question of law and fact qualifying for independent review.

Id. at 112–13, 116 S. Ct. at 465 (footnote omitted).

       Here, the following objective facts support the state court’s conclusion that

Burch was not in custody for Miranda purposes when he made his confession.

First, Burch went to the Sheriff’s office on his own initiative, and was immediately

told he was not under arrest. See Oregon v. Mathiason, 

, 495, 97 S.

Ct. 711, 714 (1977) (defendant’s voluntary arrival at the police station, coupled


4
  The presumption of correctness accorded state court fact findings is now located in 28 U.S.C.
§ 2254(e)(1).
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with police officer’s admonishment that he was not under arrest, indicated that he

was not in custody); Yarborough v. Alvarado, 

, 664, 

,

2149 (2004) (same). Second, Burch was not threatened, handcuffed, or physically

restrained. See Mathiason, 429 U.S. at 495, 97 S. Ct. at 714 (defendant was not in

custody because there was no indication that his freedom to depart had been

restricted in any way). Third, Burch was allowed to take cigarette breaks during

his interview, and the detectives offered to let him speak to his family. See

Yarborough, 541 U.S. at 664, 124 S. Ct. at 2150 (considering that the detective

twice asked the defendant whether he wanted to take a break in determining that he

was not in custody). Fourth, Burch’s parents and girlfriend “remained in the lobby

during the interview, suggesting that the interview would be brief.” See id. at 664,

124 S. Ct. at 2149.

      However, other objective factors support Burch’s contention that he was in

custody for Miranda purposes. First, Burch was interviewed in a secured room,

away from his parents and girlfriend. See id. at 656, 124 S. Ct. at 2145

(considering the fact that the defendant’s parents were not permitted to accompany

the defendant to the interview room as relevant to the custody determination).

Second, one of the doors to this room was locked, and Burch’s cigarettes and

lighter were confiscated, suggesting that his freedom of action may have been

limited. Third, the interview lasted for longer than two hours. See Yarborough,


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541 U.S. at 665, 124 S. Ct. at 2150 (considering two-hour interview as a relevant

factor in determining custody status). Fourth, the detectives never told Burch that

he was free to leave, and were constantly at his side throughout his time at the

Sheriff’s Office, including when he took smoking breaks. See id. (considering the

fact that the defendant was not told that he was free to leave when determining

custody status). Finally, Burch was immediately arrested upon the conclusion of

his interview. Cf. id. at 664, 124 S. Ct. at 2150 (considering that the defendant

went home after the interview in determining that he was not in custody);

Mathiason, 429 U.S. at 495, 97 S. Ct. at 714 (same).

      Clearly there are differing indications as to whether Burch was in custody at

the time he gave his statement. However, it is not our task under AEDPA to

review Burch’s claim anew. See Yarborough, 541 U.S. at 665, 124 S. Ct. at 2150

(“A federal habeas court may not issue the writ simply because that court

concludes in its independent judgment that the state-court decision applied the law

incorrectly.” (quotation marks and alterations omitted)). Instead, “[r]elief is

available under § 2254(d)(1) only if the state court’s decision is objectively

unreasonable.” Id. The Supreme Court’s reasoning in Yarborough is directly

relevant to our disposition of Burch’s claim: “These differing indications lead us to

hold that the state court’s application of our custody standard was reasonable. . . .

The custody test is general, and the state court’s application of our law fits within


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the matrix of our prior decisions.” Id. Our analysis leads us to conclude that we

may not grant habeas relief on the basis that Burch was in custody when he gave

his statement to the Sheriff’s detectives.5 See id.

                B. WHETHER BURCH’S STATEMENT WAS VOLUNTARY

       Whether a confession was voluntary is a question of law. Miller v. Fenton,

, 110, 

, 449 (1985). Thus, under the AEDPA habeas

standard, we are required to determine whether the state court’s legal

determination of voluntariness was contrary to or an unreasonable application of

Supreme Court precedent. Land v. Allen, 

, 1217 (11th Cir. 2009).

In doing so we take into account the totality of the circumstances. Id.

       The state court’s conclusion that Burch’s statement was voluntary was

neither an unreasonable determination of the facts in light of the evidence

presented, nor was it contrary to, or an unreasonable application of, clearly

established Federal law. Burch came to the Sheriff’s Office voluntarily and on his

own initiative. See Lawhorn v. Allen, 

, 1291 (11th Cir. 2008)

(suspect’s initiation of conversations with law enforcement indicated

voluntariness). He repeatedly emphasized his desire to tell the detectives about his


5
  Because we determine that the state court’s custody ruling was not unreasonable or contrary to
Supreme Court precedent, we need not address Burch’s second argument that his Miranda
warnings were constitutionally deficient. See California v. Beheler, 

, 1124, 103 S.
Ct. 3517, 3519 (1983) (“The police are required to give Miranda warnings only where there has
been such a restriction on a person’s freedom as to render him in custody.” (quotation marks
omitted)).
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role in Patrick’s death. See Owen v. Fla. Dep’t of Corr., 

, 1195

(11th Cir. 2012), cert. denied, 

 (2013) (suspect’s desire to speak

with police indicated voluntariness). The detectives did not confront Burch with

any evidence of guilt; indeed, Burch led the conversation throughout. And

although a plea bargain was briefly discussed, after reviewing the record we agree

with the state court’s determination that the detectives made no promises, explicit

suggestions of leniency, or express quid pro quo bargains in return for Burch’s

confession.6 Cf. United States v. Nash, 

, 752–53 (11th Cir. 1990)

(promise to make cooperation known to the United States Attorney’s Office with

no guarantee of more lenient treatment is not an illegal inducement to a

confession).

                                   III.    CONCLUSION

       For these reasons, the district court’s denial of Burch’s habeas petition is

6
  Liberally construed, Burch’s pro se brief may be read to argue that the detectives’
“denigrat[ion]” of his Miranda rights is a factor that should be considered in determining whether
his confession was voluntary. On this point, Burch complains that at the outset of his interview,
the detectives gave him Miranda warnings, but characterized them as a “formality,” and as one
of many “procedures that we have to do that waste time.” Assuming that this factor is relevant to
the voluntariness analysis, the record does not bear out Burch’s claim that these statements so
“denigrate[d] . . . the importance” of his Fifth Amendment rights as to “deprive [him] of essential
knowledge” regarding abandonment or waiver. Both before, and immediately after the
detectives read him his rights, Burch stated that he wanted to talk. Burch then repeatedly
reaffirmed his desire to make a statement. Also, there is no indication that Burch misunderstood
the gravity of his decision to confess. Indeed, the record reflects quite the opposite: Burch had
“been told many times never to talk to a cop without an attorney present,” and he anticipated
being arrested as a result of his confession. Thus, considered alongside the other factors
supporting the trial court’s voluntariness ruling, these statements do not prove that Burch’s will
was “overborne,” or that the state court’s voluntariness determination was unreasonable, or
contrary to clearly established Federal law. Land, 573 F.3d at 1217–18.
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AFFIRMED.




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