United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
habeas matter comes before the Court for a final decision on
Dustin Barnett challenges his 2012 Nevada state conviction,
pursuant to a jury verdict, of first degree murder with the
use of a deadly weapon, robbery with the use of a deadly
weapon, and possession of a controlled substance. He was
sentenced to, inter alia, life with the possibility
of parole after 20 years on the murder charge and a
consecutive sentence of 32 to 192 months on the weapon
enhancement on that charge.
challenged his conviction on the murder and robbery charges
on direct appeal. He did not pursue state post-conviction
review prior to seeking federal habeas relief herein.
GOVERNING STANDARD OF REVIEW
Antiterrorism and Effective Death Penalty Act (AEDPA) imposes
a "highly deferential" standard for evaluating
state-court rulings that is "difficult to meet" and
"which demands that state-court decisions be given the
benefit of the doubt." Cullen v
Pinholster, 563 U.S. 170 (2011). Under this highly
deferential standard of review, a federal court may not grant
habeas relief merely because it might conclude that the state
court decision was incorrect. 563 U.S. at 202. Instead, under
28 U.S.C. § 2254(d), the court may grant relief only if
the state court decision: (1) was either contrary to or
involved an unreasonable application of clearly established
federal law as determined by the United States Supreme Court;
or (2) was based on an unreasonable determination of the
facts in light of the evidence presented at the state court
proceeding. 563 U.S. at 181-88.
court decision is "contrary to" law clearly
established by the Supreme Court only if it applies a rule
that contradicts the governing law set forth in Supreme Court
case law or if the decision confronts a set of facts that are
materially indistinguishable from a Supreme Court decision
and nevertheless arrives at a different result. E.g.,
Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003). A state
court decision is not contrary to established federal law
merely because it does not cite the Supreme Court's
opinions. Id. Indeed, the Supreme Court has held
that a state court need not even be aware of its precedents,
so long as neither the reasoning nor the result of its
decision contradicts them. Id. Moreover, "[a]
federal court may not overrule a state court for simply
holding a view different from its own, when the precedent
from [the Supreme] Court is at best, ambiguous." 540
U.S. at 16. For at bottom, a decision that does not conflict
with the reasoning or holdings of Supreme Court precedent is
not contrary to clearly established federal law.
court decision constitutes an "unreasonable
application" of clearly established federal law only if
it is demonstrated that the state court's application of
Supreme Court precedent to the facts of the case was not only
incorrect but "objectively unreasonable." E.g.,
Mitchell, 540 U.S. at 18; Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004).
extent that the state court's factual findings are
challenged, the "unreasonable determination of
fact" clause of Section 2254(d)(2) controls on federal
habeas review. E.g., Lambert v. Blodgett, 393 F.3d
943, 972 (9th Cir. 2004). This clause requires that the
federal courts "must be particularly deferential"
to state court factual determinations. Id. The
governing standard is not satisfied by a showing merely that
the state court finding was "clearly erroneous."
393 F.3d at 973. Rather, AEDPA requires substantially more
. . . . [I]n concluding that a state-court finding is
unsupported by substantial evidence in the state-court
record, it is not enough that we would reverse in similar
circumstances if this were an appeal from a district court
decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review,
could not reasonably conclude that the finding is supported
by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.
2004); see also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
petitioner bears the burden of proving by a preponderance of
the evidence that he is entitled to habeas relief.
Pinholster, 563 U.S. at 569.
Ground 1, petitioner alleges that he was denied rights to due
process of law, freedom from self-incrimination, and a fair
trial in violation of the Fifth, Sixth and Fourteenth
Amendments when the trial court admitted into evidence
statements made by petitioner to a law enforcement officer
after he had invoked his right to remain silent.
Supreme Court of Nevada denied the claim presented to that
court on the following basis:
Motion to suppress
Barnett moved to suppress his statements made to Detective
Curtis Lampert before and after he was Mirandized because he
alleges Detective Lampert did not honor his right to remain
silent. The district court denied the motion because it found
that Detective Lampert “scrupulously honored
Barnett's right to remain silent when it was
It is well established that both custody and interrogation
must be present in order for a defendant to effectively
invoke the Fifth Amendment rights protected by Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). See McNeil v. Wisconsin, 501 U.S. 171, 182
n. 3, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991) (stating that
the Supreme Court has “never held that a person can
invoke his Miranda rights anticipatorily, in a
context other than ‘custodial
interrogation.'”). An interrogation invokes
Miranda protections when it includes
“‘express questioning [or] any words or actions
on the part of the police . . . that the police should know
are reasonably likely to elicit an incriminating response
from the suspect.'” Archanian v. State,
122 Nev. 1019, 1038, 145 P.3d 1008, 1022 (2006) (quoting
Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct.
1682, 64 L.Ed.2d 297 (1980)). An officer's request to
search a defendant's home generally does not qualify as
an interrogation as contemplated in Miranda because
a consent to search is typically not testimonial. See
United States v. Knope, 655 F.3d 647, 654 (7th
Cir.2011); People v. Brewer, 81 Cal.App.4th 442, 96
Cal.Rptr.2d 786, 798 (Ct.App.2000).
Here, while at the police station, Detective Lampert
initially informed Barnett that he did not have to talk to
the police and that he was free to leave. Barnett said that
he wanted to leave and did not want to talk. At this point,
Barnett was not in custody, so his decision to remain silent
was not yet Miranda protected. Detective Lampert
left the room, returned a few minutes later, and informed
Barnett that he was no longer free to leave. At this point,
Barnett was now in custody, such that Miranda would
have protected him had there been an interrogation. Detective
Lampert then left again, returned approximately 20 minutes
later, and simply asked Barnett for consent to search his
apartment. Barnett gave his consent and Detective Lampert
departed. Detective Lampert returned almost two hours later
and read Barnett his Miranda rights. Thereafter, Barnett
voluntarily made a number of incriminating statements.
Barnett's rights were not violated for two reasons: (1)
Barnett's initial invocation of his right to remain
silent occurred before Miranda circumstances even
existed, and (2) Detective Lampert's request for consent
to search Barnett's apartment did not violate
Miranda. Detective Lampert properly Mirandized
Barnett before he incriminated himself; therefore, the
district court did not err when it denied Barnett's
motion to suppress.
(ECF No. 14-36 at 3-4.)
filed only a conclusory petition and a cursory one-page
letter in lieu of a reply. Petitioner, who has the burden of
proof on federal habeas review, has not identified therein
how the state supreme court's decision was either
contrary to or involved an unreasonable application of
clearly established federal law as determined by the United
States Supreme Court or was based on an unreasonable
determination of the facts in light of the evidence presented
at the state court proceeding.
this Court's independent review of the record, it appears
that the factual statements made by the state supreme court
in rejecting this claim constituted a reasonable
determination of the facts in the light of the evidence
presented in the state courts. The trial court admitted only
those custodial statements made by Barnett after he was given
Miranda warnings by Detective Lampert. (ECF No.
12-21 at 25.) In his appeal argument, Barnett referred
to circumstances occurring prior to that point as bearing on
the question of whether these statements to Detective Lampert
should have been suppressed. These circumstances covered the
time period from when Barnett initially was placed in
handcuffs while officers conducted their preliminary
investigation at the scene through to the time that Detective
Lampert interacted with Barnett at the station after Barnett
initially had agreed to be transported to the station for a
consensual interview. The state supreme court's factual
recital as to the interaction specifically between Barnett
and Detective Lampert is adequately supported by the state
court record, with Lampert's testimony being corroborated
by transcripts and contemporaneous videos of every
interaction he had with Barnett except for one. (See,
e.g., ECF No. 12-17 at 75-95; see also ECF No.
12-21 at 4-9 ...