WILLIAM J. MARTÍNEZ, District Judge.
This matter is before the Court on Applicant Terence J. Hankins' Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") (ECF No. 6).
In the prosecution's interlocutory appeal, the Colorado Supreme Court (CSC) summarized the underlying facts of this case as follows:
See People v. Hankins, 201 P.3d 1215, 1216-17 (Colo. 2009).
Mr. Hankins was convicted by a jury in the Moffat County District Court of first degree murder after deliberation and abuse of a corpse. On August 26, 2009, the trial court sentenced Mr. Hankins to a term of life without possibility of parole in the custody of the Colorado Department of Corrections. State Register, No. 2007CR159, ECF No. 10-1 at 5. Mr. Hankins filed a notice of appeal to the Colorado Court of Appeals (CCA) on October 15, 2009, Id. at 14, which was pending at the time this case was initiated.
Mr. Hankins initiated this action by submitting an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 to this Court on April 25, 2011. Magistrate Judge Boyd N. Boland reviewed the Application, determined that Mr. Hankins' claims more properly were raised under 28 U.S.C. § 2254, and instructed him to file his claims on a Court-approved form used in filing § 2254 actions. Mr. Hankins filed an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on June 22, 2011.
Liberally construing the Amended Application, the Court found that Mr. Hankins asserted the following claims:
ECF No. 6. at 5-6 and 8-9.
The Court conducted a preliminary review of the ten claims and dismissed all but Claim Six and part of Claim Four. Id. at 5. The Court found that the remaining claims, except for Claims Five and Ten, were unexhausted. Claims Five and Ten were dismissed as not cognizable in a federal habeas action. In response to the Court's September 13, 2011 Order to Show Cause why the action should not be dismissed as a mixed petition, Applicant responded and stated that he "withdraws all unexhausted constitutional claims and relies on the Court's consideration of the inadmissibility of confessions and grave evidence." ECF No. 16 at 2. The remaining claims, therefore, are as follows:
On October 31, 2011, Respondents filed an Answer to the Amended Application in addition to a portion of the state court record. In the Answer, Respondents explained that the complete state court record in Applicant's criminal case was unavailable because Applicant's direct appeal was pending in the CCA. The Court determined the entire record was necessary to fully address the two claims that remain and ordered the case to be held in abeyance until Mr. Hankins' direct appeal is concluded and the record is available.
The unavailable portion of the state court record was provided to the Court on January 4, 2016.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be issued with respect to any claim that was adjudicated on the merits in state court unless the state court adjudication:
28 U.S.C. § 2254(d).
The Court reviews claims of legal error and mixed questions of law and fact pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003). The threshold question the Court must answer under § 2254(d)(1) is whether Applicant seeks to apply a rule of law that was clearly established by the Supreme Court at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Id. at 412. Furthermore,
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008) (citation omitted). If there is no clearly established federal law, that is the end of the Court's inquiry pursuant to § 2254(d)(1). See id. at 1018.
If a clearly established rule of federal law is implicated, the Court must determine whether the state court's decision was contrary to or an unreasonable application of that clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
House, 527 F.3d at 1018.
The Court's inquiry pursuant to the "unreasonable application" clause is an objective inquiry. See Williams, 529 U.S. at 409-10. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather that application must also be unreasonable." Id. at 411. "[A] decision is `objectively unreasonable' when most reasonable jurists exercising their independent judgment would conclude the state court misapplied Supreme Court law." Maynard, 468 F.3d at 671. Furthermore,
Harrington v. Richter, 562 U.S. 86, 101 (2011) (citations and internal quotation marks omitted). In conducting this analysis, the Court "must determine what arguments or theories supported or . . . could have supported[] the state court's decision" and then "ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102. In addition, "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
Under this standard, "only the most serious misapplications of Supreme Court precedent will be a basis for relief under § 2254." Maynard, 468 F.3d at 671; see also Richter, 562 U.S. at 102 (stating that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable").
Richter, 562 U.S. at 103.
The Court reviews claims asserting factual errors pursuant to 28 U.S.C. § 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the relevant state court decision was based on an unreasonable determination of the facts in light of the evidence presented to the state court. Pursuant to § 2254(e)(1), the Court must presume that the state court's factual determinations are correct and Applicant bears the burden of rebutting the presumption by clear and convincing evidence. "The standard is demanding but not insatiable . . . [because] `[d]eference does not by definition preclude relief.'" Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
Finally, the Court's analysis is not complete "[e]ven if the state court decision was contrary to, or involved an unreasonable application of, clearly established federal law." Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). "Unless the error is a structural defect in the trial that defies harmless-error analysis, [the Court] must apply the harmless error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . ." Id.; see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must conduct harmless error analysis under Brecht anytime it finds constitutional error in a state court proceeding regardless of whether the state court found error or conducted harmless error review).
Under Brecht, a constitutional error does not warrant habeas relief unless the Court concludes it "had substantial and injurious effect" on the jury's verdict. Brecht, 507 U.S. at 637. "[A] `substantial and injurious effect' exists when the court finds itself in `grave doubt' about the effect of the error on the jury's verdict." Bland, 459 F.3d at 1009 (citing O'Neal v. McAninch, 513 U.S. 432, 435 (1995)). "Grave doubt" exists when "the matter is so evenly balanced that [the Court is] in virtual equipoise as to the harmlessness of the error." O'Neal, 513 U.S. at 435. The Court makes this harmless error determination based upon a review of the entire state court record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th Cir. 2000). "In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by AEDPA." Davis v. Ayala, 576 U.S. ___, 135 S.Ct. 2187, 2199 (2015) (citing Fry, 551 U.S. at 119-120).
Furthermore, a claim may be adjudicated on the merits in state court even in the absence of a statement of reasons by the state court for rejecting the claim. Richter, 562 U.S. at 98. In particular, "determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning." Id. (collecting cases). Thus, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99. "Where there has been one reasoned state judgment rejecting a federal claim," federal habeas courts should presume that "later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground. If an earlier opinion fairly appear[s] to rest primarily upon federal law." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (citation and internal quotation marks omitted) (supported in Hittson v. Chatman, ___ U.S. ___, 135 S.Ct. 2126, 2127 (June 15, 2015) (Ginsburg, J., concurring in denial of certiorari review).
Even "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Richter, 562 U.S. at 98. In other words, the Court "owe[s] deference to the state court's result, even if its reasoning is not expressly stated." Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, the Court "must uphold the state court's summary decision unless [the Court's] independent review of the record and pertinent federal law persuades [the Court] that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented." Id. at 1178. "[T]his `independent review' should be distinguished from a full de novo review of the petitioner's claims." Id.
If a claim was not adjudicated on the merits in state court, and if the claim also is not procedurally barred, the Court must review the claim de novo and the deferential standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004).
In Claim Four, Applicant asserts that Deputy Sheriff Gary Nichols tried to make him incriminate himself on July 7, 2007, while he was in custody and was not Mirandized. Applicant further asserts in Claim Six that two Investigator Joe DeAngelo and Detective Jen Kenney committed a Seibert violation when they obtained multiple confessions before Mirandizing him on August 24, 2007.
The CSC addressed whether Applicant was in custody and subject to Miranda warnings as follows.
People v. Hankins, No. 08SA343,1218-20 (Colo. 2009).
Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), a suspect must be informed of certain rights when they are interrogated while in police custody. If a suspect knowingly and intelligently waives a right to counsel after receiving Miranda warnings he may be questioned by a police officer. Davis v. United States, 512 U.S. 452, 457 (1994). However, if "a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation." Id. at 457-58. If a suspect makes only an ambiguous or equivocal reference to an attorney that a reasonable officer would have understood that that the suspect "might' be invoking the right to counsel the police officer is not required to stop questioning. Id. at 459. Miranda, however, only applies when a suspect is "in custody." United States v. Chee, 514 F.3d 1106, 112 (10th Cir. 2008).
A suspect is in the "custody" of the police when he is "deprived of his freedom of action in any significant way or his freedom of action is curtailed to a degree associated with formal arrest." United States v. Chee, 514 F.3d 1106, 1112 (10th Cir. 2008) (internal quotation marks and citations omitted). Stated another way, the question is whether, under the totality of the circumstances, "a reasonable [person] in the suspect's position would have understood [the] situation . . .; as the functional equivalent of formal arrest." Id. (internal quotation marks and citation omitted).
Whether a suspect is "in custody" depends upon "the objective circumstances of the interrogation." Stansbury v. California, 511 U.S. 318, 323 (1994). The courts 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, 511 U.S. at 322. (internal quotation marks and citations omitted). However, the test involves no consideration of the particular suspect's "actual mindset." Yarborough v. Alvarado, 541 U.S. 652, 667 (2011) (found the state court's failure to consider a suspect's age does not provide a basis for finding a state court's decision was unreasonable application of established law).
Courts consider several factors to determine whether, under the totality of the circumstances, a reasonable person would have understood his situation as one akin to formal arrest. United States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008). Those factors include (1) whether the suspect was aware that he could refrain from answering questions or end the interview at will, (2) whether the questioning was prolonged and accusatory, and (3) whether the questioning took place in a police-dominated atmosphere. Id. at 1240.
Applicant asserts that during the July 7, 2007 execution of the search warrant at "Ace NO.& claim" (Applicant's mine and residence), he was definitely under the control of Deputy Sheriff Nichols, equivalent to an arrest, without being Mirandized. ECF No. 6 at 8. Applicant further asserts that Deputy Nichols later testified at trial that "Hankins teared up when Nichols suggested Cynthia have a Christial [sic] burial and Hankins said `Gary, I had to do something as she was about to kill me!'" Id. Applicant contends that Nichols was trying to get him to say something self-incriminating and that he definitely was in custody without a Miranda warning. Id.
First, based on the findings below, the Court notes that Mr. Nichols testified, at the pretrial motions hearing, that during a conversation with Applicant on August 23, 2008, Applicant "slumped over the bench, put his head down, and stated, Gary, I had to do something, she was going to kill me," Hankins, No. 2007CR159, Oct.1, 2008 Pretrial Hr'g at 103, and at one point, when talking about the victim, he put his hand on Applicant and Applicant "looked up, his eyes were —he teared up as if he was about to cry," id. at 108.
The Court further notes, that on the audio DVD, Exhibit 9, of the interviews with Applicant by Detective Jen Kenney and Investigator Joe DeAngelo on August 24, 2007, Applicant stated that on the day prior to the August 24 interview Gary Nichols tried to get him to talk to Ms. Kenney and Mr. DeAngelo. Case No. 07CR159, Aug. 24, 2007 #1, Audio DVD, Ex. 9. Applicant does not identify any other discussion with Mr. Nichols other than the one on August 23, 2007, regarding the investigation. Id. Applicant only states on the DVD that Mr. Nichols had been to his residence in January 2007, but he does not indicate why. Id.
From Mr. Nichols' testimony during the pretrial hearing and the statement by Applicant regarding his conversation with Mr. Nichols on August 23, it appears Applicant may have confused the actions that took place on August 23 as taking place on July 7. Nonetheless, even if the conversation Applicant is referencing took place on July 7, that Applicant slumped in his seat, teared up, and then stated to Mr. Nichols he had to do something or the victim would have killed him, nothing else that Applicant states in Claim Four regarding his statement, whether it took place on July 7 or August 23, 2007, indicates that he was in custody at the time he made those comments to Mr. Nichols.
In his Reply, Applicant states that (1) his vehicles were confiscated during the July 7 search; (2) he lived in a remote area; and (3) he was asked not to leave the area. ECF No. 14 at 2. These claims are conclusory and also fail to state how his interaction with Mr. Nichols at the time of their conversations was equivalent to being in custody.
Mr. Nichols' testimony is set forth below. Applicant does not disagree with Mr. Nichols' testimony.
During the pretrial hearing held on October 1, 2008, that addressed Applicant's motion to suppress statements, Mr. Nichols testified as follows.
Hankins, No. 2007CR159, Oct.1, 2008 Pretrial Hr'g at 53-56.
During cross-examination Mr. Nichols testified that (1) he had a cordial relationship with Applicant; (2) had been to Applicant's property, where the search was conducted on July 7, 2008, on a dozen previous occasions, id., at 70; (3) he did not know his role in the search prior to arriving, or the details of the search warrant, id. at 72 and 76; (4) he was not told to pay attention to anything Applicant said on July 7 or to wear a "wire," but he would have reported to officers Kenney and DeAngelo anything of significance that Applicant said, id. at 73 and 84; and (5) all he knew at that time was Applicant's wife was a missing person and Applicant was a possible suspect, id. at 76.
Mr. Nichols also testifies he drove a marked sheriff's car to Applicant's on July 7, was wearing a uniform and had a weapon, and at least six other officers were there in a total of about four vehicles. Id. at 77 and 80. He also stated that Officer Kenney told Applicant that he could leave and that no one else talked with Applicant while the search was conducted on July 7. Id. at 79 and 82.
Because (1) Mr. Nichols was simply standing by; (2) Applicant had been told he was free to leave; (3) Applicant and Mr. Nichols were outside; (4) Applicant continued to work; and (5) at one point Applicant went to his residence, made a sandwich to eat, got a bottle of water, and even offered the sandwich to Mr. Nichols, the Court finds that Applicant was not in custody and any conversation that did pertain to the victim or to Applicant's relationship with the victim that he had with Mr. Nichols on July 7, 2007, would not be considered a custodial interrogation that would require a Miranda warning.
As for August 23, 2007, Mr. Nichols asserts, in cross-examination, his role was the same as July 7, to stand by and be sure Applicant did not get in the way of the search; but he was an acquaintance of Applicant so they were comfortable talking with each other. No. 2007CR159, Oct. 01, 2008 Pretrial Hr'g Tr. at 86. Mr. Nichols further testified that on August 23 Mr. DeAngelo told Applicant he was free to leave while the search took place; but Applicant chose not to leave because he had work to do on the property and that he assisted Applicant in the various chores and tasks. Id. at 92-93. Mr. Nichols also testified their conversation was pretty general at first about the weather, wildland fires, and Mr. Nichols' archery permit for antelope; but he further testified the conversation did turn to a discussion about Applicant's inability to sleep and the District Attorney's Office harassing him. Id. at 98.
Mr. Nichols further testified that he told Applicant (1) the "cadaver dog" had "alerted" on his van and the couch; (2) tests would be back from the Colorado Bureau of Investigation soon; and (3) Applicant could expect to see more investigators in the future. Id. at 101-02. Mr. Nichols also agreed that he told Applicant he found it strange that Applicant would forge a check that was sent to the victim from her employer and that there is a big difference between first degree murder and self-defense or an accident. Id. at 104-05. Mr. Nichols further agreed, while testifying, that Applicant then stated they will have to prove it, but no one would believe my story, at which point he told Applicant he was free to leave, but Applicant continued to say he was concerned about going to prison for the rest of his life. Id. at 105.
Mr. Nichols went on to testify that Applicant stated he thought the victim was going to kill him and he had to do something, and Applicant then slumped over the bench; at which time Mr. Nichols told Applicant that Applicant should then help to find the victim's remains so the family can bury her and have a place to go to remember her. Id. at 107-08. Finally, Mr. Nichols testified that at this point Applicant stated he had an attorney and his attorney would not want him to make any more statements; after which the conversation returned to other topics and they continued to do the chores. Id. at 108-09.
Just like the Court's finding above regarding July 7, 2007, the totality of the circumstances does not suggest that Applicant was in custody on August 23, 2007, when Mr. Nichols was assigned to be with Applicant so he did not interfere with the search. Mr. Nichols talked with Applicant and assisted with the chores. They were outside. When Applicant elected to move lumber materials from one part of the property to another, using his van, Mr. Nichols offered to assist him and Applicant agreed. The conversation for the most part was about the weather, hunting, and mining, and when the conversation involved the victim there is no indication that Applicant was directed to provide a response, and that his response was not freely given. Finally, Applicant was told he was free to leave when he did provide a response that could be incriminating. The Court finds that Applicant was not in custody and any conversation that did pertain to the victim or to Applicant's relationship with the victim that he had with Mr. Nichols on August 23, 2007, would not be considered a custodial interrogation that would require a Miranda warning.
Based on the totality of the circumstances, as described by Mr. Nichols, and not disclaimed or presented otherwise by Applicant, other than general statements that his vehicles were impounded due to the July 7 search, he lived in a remote area, and was told not to leave the area, a reasonable person would not have thought that he was formally under arrest or in custody during the conversations he had with Mr. Nichols on July 7 and August 23, 2007. See Stansbury, 511 U.S. at 322-23 (The courts 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.); Jones, 523 F.3d at 1240 (10th Cir. 2008) (consider whether the suspect was aware that he could refrain from answering questions or end the interview at will, (2) whether the questioning was prolonged and accusatory, and (3) whether the questioning took place in a police-dominated atmosphere).
Claim Four, therefore, will be dismissed as meritless because any court decision regarding Applicant's conversations with Mr. Nichols on July 7 or August 23, 2007, did not result in a decision that was contrary to, or involve an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States, and did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
Applicant asserts that on August 24, 2007, Investigator Joe DeAngelo and Detective Jen Kenny obtained multiple confessions from him without a Miranda warning in violation of Seibert. ECF No. 6 at 8.
Upon review of the two audio DVD's and the one video DVD, Case No. 07CR149, Exhibits 9 and 10, the Court finds as follows. First, on August 24, 2007, Applicant asked that at least Mr. DeAngelo come to his home to discuss certain checks he had either written or endorsed on behalf of the victim after she was murdered. Ex. 9., Audio DVD #1. Second, when Mr. DeAngelo and Ms. Kenney arrived at Applicant's residence, although he was sleeping, he woke up and indicated to them to come inside, and directed them where to sit. Id.
During the course of the day on August 24, 2007, while Mr. DeAngelo, Ms. Kenney, and Applicant either sat at a table at Applicant's residence, were in the car driving to and from the burial site or to Craig to the Public Safety Center, (The Craig Police Department and the Moffat County Sheriff are located at this center.), or were at the burial site, which transpired over a period of about six hours, the conversation among the three was cordial, at some times light-hearted, and respectful. Ex. 9, Audio DVD's #'s 1 and 2; Ex. 10, Video DVD. The tone of the conversation was never argumentative, demeaning, or aggressive. Applicant was (1) very lucid; (2) able to state the ages of his three children and where they lived; (3) able to provide directions to the burial site; (4) noted that Mr. DeAngelo incurred damage to his car while driving to the burial site; (5) talked about himself and asked questions about Mr. DeAngelo's past work career; and (6) described at length the history of the mining industry in Colorado.
Prior to the time that Applicant told Ms. Kenney and Mr. DeAngelo that he would take them to the burial site, their conversation involved (1) the checks Applicant had deposited; (2) how Applicant had gotten into mining and the history of mining in Colorado; (3) the annoying flies in Applicant's residence; (4) Applicant's family; (5) his association with a woman located in West Virginia; and (6) why pain pills (Oxycodone) were found in his residence during a previous search. Ex. 9, DVD #1. Applicant also asked if Ms. Kenney had heard from the victim's family, and she responded only via telephone. Id.
Mr. DeAngelo then stated that he wanted to let Applicant know what the situation is and the ways that "we" can proceed. Id. Applicant stated that he knew he was in "pretty deep trouble." Id. Ms. Kenney and Mr. DeAngelo then proceeded to tell Applicant that the victim's family is concerned about him, the family needs closure, and the situation needs to be resolved sooner than later. Id.
Both Ms. Kenney and Mr. DeAngelo told Applicant that they know the victim was abusive and that Applicant had put up with a lot from her. Id. Applicant stated the victim was bipolar, which was aggravated with her abusing alcohol and drugs. Id. Mr. DeAngelo then stated that he knew Applicant had been taken to the cleaners by the victim; but the situation could be resolved quickly, and the victim could then have a Christian burial. Id. Applicant then acknowledged that the issue would be resolved by going to court, which would affect the rest of this life. Id.
Mr. DeAngelo further stated that Applicant is a good man and there is always a self-defense consideration. Id. Mr. DeAngelo went on to state that there is a big difference between premeditation and someone who is a victim defending himself. Id. Applicant stated that any action would have to be shown and proved. Id. Ms. Kenney further stated that all they had learned about his relationship with the victim is documented and that their job, meaning hers and Mr. DeAngelo's, was to find the truth. Id. Applicant acknowledged he understood the process regarding a prosecution and having a defense attorney. Id.
At this point, Mr. DeAngelo asked Applicant to tell them what happened, to which Applicant responded he would have to talk with his attorney. Id. Ms. Kenney then told Applicant, "just know we're here." Id. Mr. DeAngelo then stated this is a very serious issue and it will be solved when the victim is located. Id. Ms. Kenney added the children do need a place to go and grieve. Id. Applicant then said he would show them where she is, but he believed his attorney would be against it. Id. Applicant, however, offered to drive Ms. Kenney and Mr. DeAngelo to the grave site because of the terrain and his concern that Mr. DeAngelo's vehicle would not make it. Id.
Applicant, Ms. Kenney, and Mr. DeAngelo then drove in Mr. DeAngelo's car to the burial site. Id. While in the car at the burial site, Mr. DeAngelo asked Applicant to tell him what happened but also reminded him that he was free to go and to not feel because he was in the car that he was "closed in" and not free to go. Id. Applicant responded, "Let's get it done." Id. Two more times while in the car either at the site or when they returned to residence, Mr. DeAngelo reminded Applicant that he was free to go. Id.
Mr. DeAngelo then Mirandized Applicant, which Applicant responded that he understood; then once back at the residence Applicant signed the Miranda statement, after which he provided a statement that described with detail the incidents that lead up to the killing and the actions he took after the killing. Id. A couple of times during the statement Applicant gave indication he needed to stop, and at one point, Ms. Kenney prepared Ravioli from a can for Applicant to eat. Id. Applicant stated in response to a question by Mr. DeAngelo if he had told anyone about the killing, that he had told his attorney, who told him not to tell anyone; but he "didn't listen to that" — "told [Mr. DeAngelo] everything." Id. At another point in time, it is audible that Applicant states to himself "cry baby," and Mr. DeAngelo tells Applicant it will be okay. Id.
Mr. DeAngelo tells Applicant again he is free to go and does not have to return to the burial site if he does not want to, but he indicates he wants to go to burial site again and help "stake it." DVD #2. After Mr. DeAngelo, Ms. Kenney, and Applicant return again to Applicant's residence, Mr. DeAngelo asks Applicant if he is willing to go to Ms. Kenney's office and make am audio/video statement, to which he replied, "sure." Id. Mr. DeAngelo tells him it is voluntary for him to go. Id. At the residence, Applicant relaxes and lays down for a while. Id. Before they leave for Ms. Kenney's office, Mr. DeAngelo reads and has Applicant sign a permission statement for the burial site to be dug up, which without disagreement Applicant signs. Id.
At this point, Applicant asks if he should take anything with him, and Mr. DeAngelo tells him he probably is not coming back. Id. Applicant asks if he should have an attorney at the meeting at Ms. Kenney's office, to which Mr. DeAngelo responds that is totally up to him, and he cannot give him legal advise. Id. During the drive to Ms. Kenney's office all three engage in general conversation. Id. Applicant is alert, aware of his surroundings, describes with detail his childhood and early adulthood, and asks Mr. DeAngelo about his work history. Id. They stop at a fast food restaurant and then continue to Ms. Kenney's office, where their interaction is subject to a audio/video recording. Ex. 9, DVD #2; Ex. 10, Video DVD. At the beginning of the one hour and four minute recording, Mr. DeAngelo reads and has Applicant sign a Miranda statement, which Applicant visually and audibly indicates he understands and signs without concern. Ex. 10, Video DVD. During the video, Applicant appeared relaxed, calm, and willing to make his statement. Id. Neither Ms. Kenney's nor Mr. DeAngelo's questions were intimidating or directives and their body language was relaxed and nonconfrontational. Id. At the end of the interview, Applicant signed a statement, Mr. DeAngelo told Applicant he was going to jail for a while, and Applicant was placed in handcuffs without incident. Id.
Contrary to Applicant's claim, he was Mirandized, on at least two occasions; first time he was Mirandized after returning from the burial site and the other at the Public Safety Center. Each time Applicant acknowledged his rights. The only remaining issue, which was addressed by the CSC, is whether Applicant was in custody when he made statements at the burial site, after he stated she's under the pile of dirt about five feet down, and in response to Mr. DeAngelo's asking him to tell them what happened.
Because (1) Applicant invited Mr. DeAngelo to his home to talk; (2) he was told he was free to go; (3) he decided to take Ms. Kenney and Mr. DeAngelo to the burial site and offered to drive them to the site; (4) the conversation between Mr. DeAngelo, Ms. Kenney, and Applicant was always cordial and respectful and did not contain directives, (other than Mr. DeAngelo stating tell us what happened and in response, after being told he was free to go, Applicant responded "let's get it done,"); and (5) there was no attempt to confine Applicant in a certain place, a reasonable person in his position would not have understood that he was in custody after showing Ms. Kenney and Mr. DeAngelo the burial site and telling them what had happened to the victim. See Stansbury, 511 U.S. at 322-23 (The courts 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.); Jones, 523 F.3d at 1240 (10th Cir. 2008) (consider whether the suspect was aware that he could refrain from answering questions or end the interview at will, (2) whether the questioning was prolonged and accusatory, and (3) whether the questioning took place in a police-dominated atmosphere).
Applicant, therefore, clearly does not assert a Seibert violation. Missouri v. Seibert, 542 U.S. 600 (2004) (during a custodial interrogation that requires a warning of an individual's rights, the warnings cannot be ignored until there is a confession).
Based on the above findings, the CSC decision regarding this claim did not result in a decision that was contrary to, or involve an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States, and did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Claim Six, therefore, will be dismissed on the merits.
Accordingly, it is ORDERED that Applicant Terence J. Hankins' Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 ("Application") (ECF No. 6) is DENIED and the civil action is dismissed WITH PREJUDICE. It is
FURTHER ORDERED that each party shall bear his own costs and attorney's fees. It is
FURTHER ORDERED that no certificate of appealability will issue because Applicant Terence J. Hankins has not made a substantial showing of the denial of a constitutional right, pursuant to 28 U.S.C. § 2253(c). It is
FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he also must pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
