USCA11 Case: 20-11439      Date Filed: 10/26/2020   Page: 1 of 6



                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 20-11439
                              Non-Argument Calendar
                            ________________________

                         D.C. Docket No. 1:19-cv-05791-JPB


ROGER SHANNON BROWN,

                                                               Petitioner-Appellant,

                                      versus


WARDEN,
Phillips State Prison,

                                                              Respondent-Appellee.

                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________

                                 (October 26, 2020)

Before NEWSOM, BRASHER and MARCUS, Circuit Judges.

PER CURIAM:

      Rodger Brown, a Georgia prisoner, appeals the district court’s denial of his

habeas corpus petition, under 28 U.S.C. § 2254, for its failure to rebut the
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presumption of correctness given to the state court’s habeas decision. Brown’s

petition arises out of his convictions and sentences for malice murder, felony murder,

and four counts of aggravated assault for assaulting three individuals with a hammer

and pry bar. On appeal, Brown argues that the Georgia Supreme Court’s decision

amounted to an unreasonable application of federal law because it declined to hold

that, during his interview, the police violated his Fifth Amendment right to counsel

by subjecting him to the functional equivalent of an interrogation after he clearly

invoked his right to counsel. After thorough review, we affirm.

      We review a district court’s denial of a § 2254 habeas petition de novo.

McNair v. Campbell, 

, 1297 (11th Cir. 2005). Under § 2254(d), a

federal court may not grant habeas relief on claims that were previously adjudicated

in state court on the merits unless the state court’s adjudication resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established

Supreme Court holdings, or resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1)-

(2). A state court’s ruling is an unreasonable application of clearly established

federal law if the ruling was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fair-

minded disagreement. Burns v. Sec’y, Fla. Dep’t of Corr., 

, 1304

(11th Cir. 2013).


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      The Supreme Court has long held that the Sixth Amendment right to counsel

may attach during the investigatory phase of a criminal prosecution, prior to formal

indictment. See Escobedo v. Illinois, 

, 485 (1964). It explained in

Miranda v. Arizona, that once warnings have been given, if the individual states that

he wants an attorney, the interrogation must cease until an attorney is present. 

, 473-74 (1966). The Supreme Court 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.”

      In Rhode Island v. Innis, the Supreme Court clarified that the interrogation

environment encompassed questioning and its “functional equivalent,” which it

defined as “words or actions on the part of the police (other than those normally

attendant to arrest and custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.” 

, 301 (1980)

(footnote omitted). The latter portion of this definition, it noted, focused primarily

on the suspect’s perceptions, rather than law enforcement’s intent.

mislead a suspect or lull him into a false sense of security

that do not rise to the level of compulsion or coercion to speak are not within

Miranda’s concerns.” Illinois v. Perkins, 

, 297 (1990). On the one

hand, Miranda’s survey of interrogation practices, indicting the use of psychological


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ploys -- such as positing the subject’s guilt, minimizing “the moral seriousness of

the offense,” or blaming the victim or society -- were techniques of persuasion

thought, in a custodial setting, to amount to interrogation. 

.

On the other hand, the Supreme Court has found that a police officer’s false

statement that the accused’s co-conspirator had confessed was not sufficient to

render the defendant’s subsequent confession involuntary, noting that the

questioning was of short duration and the defendant had a normal level of

intelligence. See Frazier v. Cupp, 

, 737-39 (1969).

      Here, the Georgia Supreme Court’s decision rejecting Brown’s Miranda claim

-- which reversed the trial court’s ruling on the motion to suppress and permitted

Brown’s statements to be used at trial -- did not amount to an unreasonable

application of clearly established Supreme Court holdings. As we’ve explained, the

Supreme Court has held that once a right to counsel is invoked, any interrogation

must cease, and the question becomes whether the ensuing situation was the

functional equivalent of an interrogation. See 

; 

.

      As the record reflects, Brown’s interview began with him voluntarily

discussing the crime, at which point Detective Geoffrey Ord interrupted Brown with

questions about his age, education, and understanding of English. Brown then asked

about the status of one of the victims, and after Detective Ord said the victim was in


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the hospital, Brown kept describing the incident, but Detective Ord again interrupted

Brown to read him his Miranda rights. Once Brown told Detective Ord he wanted a

lawyer, Detective Ord did not question him about the incident.

      Instead, Brown continued, on his own accord, to offer details of the crime,

while Detective Ord repeatedly interrupted Brown, addressing Brown’s concerns

about how long he would be held, or whether he would be charged. Detective Ord

then assisted Brown in getting his lawyer’s card from Brown’s wallet. At that point

Brown again began to talk about the crime when Detective Ord said:

      What I like to do is keep that on hold until we contact your attorney.
      Cause what I want to do is you’ve been advised of your rights, you want
      an attorney and I can certainly appreciate that. We don’t want to do
      anything to circumvent your rights. Ok. But what I don’t want to do is
      get into a dialogue within which may constitute you divulging
      information that you didn’t necessarily intend too. Ok. If that makes
      much s[ense] as possible we’re doing this to protect your rights that’s
      the only reason why we aren’t telling you any more details about the
      case. Cause if I was to say something that someone else told us, it may
      illicit a response from you, alright. And you have asked for your
      attorney, so the best thing to have happened is for your attorney to be
      sitting here with you, and then you guys make a[n] educated decision
      together, how you want to pursue this. Ok.

Brown then raised questions about where he would be held and whether he was

charged, which Detective Ord answered, and each time Brown asked about the

victim, Detective Ord said that he “understood” or would try to arrange for Brown

to visit him.




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      On this record, we cannot say that Detective Ord’s statements come anywhere

close to the tactics the Supreme Court has specifically identified as contributing to a

custodial setting -- such as lying to the suspect about his alleged co-conspirator’s

confession or positing Brown’s guilt -- and nothing from the transcript indicates that

Brown construed them as coercive. See 

; 

. Indeed, many of Detective Ord’s statements were reasonably construed as

deflections of Brown’s questions or efforts to effectuate Brown’s right to counsel

and did not appear to contribute to any custodial interrogation setting at all.

      As for Detective Ord’s statement that the victim was hospitalized, it was made

before Brown invoked his right to counsel. Moreover, once Brown invoked his right

to counsel, Detective Ord never mentioned the victim’s status again and, thus, the

statement could not have served as a “psychological ploy” undermining his invoked

right to counsel. See 

. Accordingly, we conclude that

the district court did not err in finding that the Georgia Supreme Court’s decision

rejecting Brown’s Miranda claim was not an unreasonable application of clearly

established Supreme Court holdings, and we affirm.

      AFFIRMED.




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