02-3184 | 3rd Cir. | Aug 10, 2004
BECKER, Circuit Judge .
On Appeal from the United States This appeal by Scot A. Reinert District Court For (“Reinert”), a state prisoner serving a The Eastern District of Pennsylvania sentence of life imprisonment for first (D.C. No. 98-cv-05257) degree murder, from an order of the District Judge: Honorable Anita Brody District Court denying his petition for a ______________________ writ of habeas corpus, presents two congeries of issues, one dealing with Argued May 3, 2004 Miranda rights, and the other with ineffective assistance of counsel. Before: SLOVITER, FUENTES and Considering the Miranda issues first, we BECKER, Circuit Judges must evaluate the admissibility of three statements made by Reinert when he was (Filed: August 10, 2004) being transported to the hospital by emergency medical technicians (“EM Ts”), Reinert was in custody and that his pre- accompanied by police officers. The Miranda statement should not have been admissibility of the first two statements— admitted. Deference is not due to the state one to an EMT and the other to an officer, trial judge’s finding and conclusion to the both of which were given prior to the contrary because she mistakenly stated that a d m i n i s t r at i o n of an y M i r a n d a the second statement was post- Miranda warnings—turns on whether Reinert was warning. However, due to the fact that the in custody at the time he made the statement was duplicative of others statements. The admissibility of the third properly received after appropriate statement, made to a police officer after a Miranda warnings were administered, we Miranda warning had been given, depends conclude that the error was harmless. on Reinert’s competence at the time to
Additionally, we are satisfied that when waive his Miranda rights. Then we must the post- Miranda statement in the determine whether Reinert was competent ambulance and the subsequent (post- to waive his Miranda rights when he made surgery) statement was made at the a statement to two detectives at the hospital, Reinert was alert and oriented hospital following surgery. We do not, of and that his waiver of Miranda rights was course, either write or decide on a blank voluntary. The state trial court decision, in slate. The record contains fact findings by accord with these conclusions, was not the state trial judge following a based on an unreasonable determination of suppression hearing, and our decision the facts in light of the evidence presented making is constrained by the rigorous in the state court proceedings, nor was it standard of review under the Antiterrorism contrary to or an unreasonable application and Effective Death Penalty Act of 1996 of clearly established federal law as (“AEDPA”), codified in relevant part at 28 determined by the United States Supreme
U.S.C. §§ 2241-2255.
Court. We are satisfied that, at the time of The second set of issues before us Reinert’s first statement, made to an EMT stems from Reinert’s claims of ineffective when he was being transported to the assistance of counsel allegedly in violation hospital for treatment (at which time he of his Sixth Amendment rights. First, he was not a crime suspect and indeed was complains of his state trial counsel’s considered a possible victim), he was not failure to call a medical expert to testify at in custody, even though a police officer the suppression hearing as to his alleged was present in the ambulance. However, mental and physical inability to voluntarily with respect to the second statement made and knowingly waive his Miranda rights. in the ambulance to a police officer to However, our analysis of the record will whom Reinert was “turned over” by the show that the expert testimony that Reinert E M T a f t e r h is f ir s t se e m i n g ly believed would have helped him would incriminating statement, we conclude that have made no difference to the merits of his Miranda claim. He also scores his Shortly after Mertz’s arrival, three counsel’s failure to inform him of his right more Allentown police officers, Bruce to testify at the suppression hearing, but Zimmerman (“Zimmerman”), Robert we conclude that this claim too lacks Lembach (“Lembach”), and Brian Brader merit. Reinert has thus failed to (“Brader”), arrived at Reinert’s home, demonstrate that he was prejudiced by his followed by the EMTs. Law enforcement counsel’s actions; moreover the state officers secured the home. The EMTs court’s conclusions on the issue were not examined Reinert; his blood pressure was contrary to or an unreasonable application down and his pulse rate was up. The of clearly established federal law as EMTs helped Reinert to his feet and he determined by the United States Supreme then walked to the ambulance. At this Court. juncture, Zimmerman was ordered by his
superiors to remain with Reinert and told We will therefore affirm the order of “not to let him leave your custody.” the District Court denying the petition. Reinert was laid on a stretcher inside the ambulance, had an oxygen mask placed I. Background Facts over his face, was given IVs in his arms, a n d w a s h o o k e d u p t o a n On March 10, 1991, responding to a electrocardiograph. Reinert had been telephone call during which Reinert made observed to have lacerations to his wrists some rather bizarre statements, his mother and he complained of an injured ankle. Janet Ketner and her husband rushed to his When he was in the ambulance, the EMTs home and found him sitting on the first noticed multiple lacerations to his floor covered in blood, with large, visible abdomen. Upon discovery of the slashes on both wrists. Mr. Ketner called abdominal wound, EMT Timothy Snyder 911, describing Reinert as delirious. (“ Sn yd e r ” ) a s k ed Re ine rt “ wha t Police and ambulance services soon happened?” Reinert responded “I stabbed arrived. Reinert looked strange, and it was him with a butcher knife, then I did determined that he had recently attempted myself.” Snyder at once turned to Officer suicide by drinking alcohol, taking Zimmerman and stated, “I think you ought sleeping pills, and slashing his wrists. At to step in.” 12:11 p.m., Officer Jeffrey Mertz (“Mertz”) arrived, checked on Reinert and Zimmerman then, without advising his parents in the first floor living room, Reinert of his Miranda rights, asked him and then went upstairs to check the “what happened?” Reinert responded to parents’ report of a body on the third floor. the question by stating, “I think I killed When Mertz reached the third floor, he him. I think I stabbed him.” At that point, found the body of Sean Brady, Reinert’s Zimmerman read Reinert his Miranda long time companion, and determined that rights. See infra note 3. After reading he was dead. Reinert his rights, Zimmerman asked him: “And with these rights in mind, do you At 7:47 p.m., Detectives Joseph wish to talk to us now?” Reinert replied: Stauffer (“Stauffer”) and Glenn Granitz “I think I killed him.” When asked whom (“Granitz”) arrived at the hospital. The he had killed, Reinert responded: “Sean, detectives first spoke to the attending Sean Brady,” “with a butcher knife.” physician, Dr. Homayoun Hashemi (“Dr.
Hashemi”), wh o testified that he Once at the Lehigh Valley Medical performed a post-operative check at 7:30 Center (“LVMC”), Reinert underwent p.m. on Reinert, and found him awake, preparatory treatment for surgery by coherent, and with stable vital signs. After Nurses Thomas Gavigan and Patricia conferring with Dr. Hashemi, the Lombardo. Police officers were ordered detectives went to see Reinert. They by their superiors to stand guard outside testified that they found him conscious, his room. [1] Reinert entered surgery at oriented, alert, and responsive. They approximately 1:15 p.m. Prior to surgery, proceeded to interview him while he was Reinert was, of course, anesthetized. laying in the recovery room, wrists and Surgery lasted approximately two and one- abdomen bandaged, attached to IVs and half hours. Reinert lost about half a pint of other post-operative equipment. They first blood during the operation; he had also read him his Miranda rights. The two lost a quart of blood prior to being treated detectives present differing accounts as to by the EMTs. Reinert experienced post- how Reinert responded to the question: operative pain, and was given Robinal, a “Do you waive these [ Miranda ] rights?” sedative and muscle relaxant, at 3:30 p.m, Stauffer stated that Reinert answered the and Cefoxitan, an antibiotic, at 6:00 p.m. question verbally with a “yes,” whereas Granitz said that Reinert merely nodded his head. Both detectives, however, agreed that Reinert clearly communicated [1] Zimmerman asked Gavigan prior to to them his decision to waive his Miranda Reinert’s treatment, at the doors of the rights. trauma room, “to note down anything that Reinert said which may be of use to The detectives then questioned him for him.” During this surgical preparation, forty-five minutes, during which Reinert Gavigan asked Reinert some questions, stated that he had obtained a knife, had to which Reinert responded that he had gone to see Sean Brady, who was in bed, been fighting with his friend with a and stabbed him. Reinert’s chart knife, they had fallen off the bed and that indicated no abnormality with regard to his he, the friend, might have done this. ability to answer questions appropriately. Reinert also acknowledged he might Dr. Hashemi also testified that the first have wounded himself, and that he had administration of medication for pain, fallen down the stairs. However, s p e c i f i c a l l y m o r p h i n e , w a s n o t Reinert’s response to the nurse is not at administered to the defendant until 10:00 issue on appeal. p.m. We will amplify this factual indicative that the defendant was in background in our discussion of the their custody. Their presence procedural history and the merits issues, would be explained by many infra. things, including a desire to
interview an important witness or a desire to protect a potential victim.
II. Procedural History We conclude therefore that the On or about March 10, 1991, Reinert statement made to paramedic was arrested and charged with the criminal Snyder was not made while the homicide of Sean Brady. Pre-trial defendant was in custody and, motions, including motions to suppress furthermore, that it was not made physical evidence and statements, were pursuant to interrogation by police heard before Judge Carol K. McGinley of officers. the Court of Common Pleas of Lehigh
Second, the suppression court concluded County. After a hearing, the suppression that: motions were denied. The defendant remained The suppression court made a number conscious, alert and oriented of relevant findings. First, it rejected throughout his transport to the Reinert’s claim that his pre- Miranda hospital. No medication was statement should be dismissed, finding that administered to him in the care of the statement was “volunteered by the the Emergency Medical Service defendant to Paramedic Snyder . . . in Unit. response to a routine question by paramedic Snyder.” The court further Then, after describing his treatment in the concluded that: emergency room, the Court found that
Reinert . . . although the police were present, there is nothing in the . . . remained alert and coherent. situation which would lead a H e responded to questions reasonable man to believe that he concerning allergies to medication was under arrest or in the custody and to the approximate time of his of the police. The arrival of the most recent tetanus inoculation. He police at the scene was due to a indicated he was allergic to request made on his behalf by his penicillin. Ms. Lombardo observed mother and her husband, and the that his blood pressure was stable, defendant’s transport to the that his pulse was providing him Hospital Center was voluntary on with adequate oxygenation to the his part. The mere fact that police brain, and she performed the were present was not in any way Glasgow coma score to determine his level of consciousness. In all T h e d e f e n d a n t , u p o n categories the defendant received questioning by Detective Stauffer, the highest possible score. made incriminating statements. In
the course of making these Turning to the next phase of the statements the defendant was treatment, the surgery, from which Reinert v o l u b l e , a n d v o l u n t e e r e d returned at approximately 4:05 p.m., the information not specifically sought suppression court found: by Detective Stauffer. The At 7:47 p.m. Detective Stauffer questioning ended at 8:30 p.m. arrived at the hospital with Dr. Hashemi testified that he Detective Granitz. After speaking had performed a post-operative to the attending physician, Dr. check at 7:30 p.m. on the Homayoun Hashemi, the detectives defendant, that he had seen that the proceeded to interview the patient. defendant was awake, coherent, The questioning began at least five and had stable vital signs. His hours after the defendant’s surgery chart indicated no abnormality with had been completed. regard to the defendant’s ability to Detective Stauffer determined answer questions appropriately. that the patient was conscious and Dr. Hashemi also testified that the oriented. He asked him his date of first administration of medication birth and his social security for pain, specifically morphine, was number, both of which were later not administered to the defendant verified as accurate. He asked him until 10:00 p.m. other questions to determine
Immediately following his whether or not the defendant was statements to the police, the aware of his surroundings and defendant was seen by his family, received satisfactory answers. his close friend Cindy Mellinger, After determining that the and his mother’s minister. All defendant was able to be testified that he was extremely soft- responsive, Detective Stauffer spoken at this time. advised him of his rights, following
A jury trial commenced on January 15, which the defendant said he 1992, resulting in a verdict of guilty of understood his rights and he agreed murder in the first degree. Reinert was to speak with the police. Detective sentenced to life imprisonment. Timely Granitz also asked questions to post-trial motions were denied as to all determine the capacity of the issues on November 15, 1994. defendant, both at the beginning and the end of the statement. Through new (and present) counsel,
Reinert appealed to the Pennsylvania Superior Court. During that appeal p s y c h i a t r i c t e s t i m o n y a t Rein ert raised the issue of the suppression hearing to demonstrate effectiveness of his trial counsel, that defendant’s mental illness submitting a number of affidavits/letters in prevented proper w aiver of support of his ineffectiveness claim. On Miranda rights where evidence January 23, 1996, the Superior Court indicated defendant was aware of denied relief on all grounds in a nature of right and consequence of Memorandum Opinion, denying the waiver). ineffectiveness claims without ordering an
The Superior Court also rejected Reinert’s evidentiary hearing. Inter alia , the contention that he was denied effective Superior Court stated: assistance of counsel because his attorneys After reviewing the record, we find failed to advise him that he could testify at that trial counsel thoroughly cross- the suppression hearing. The Court found e x a m i n e d a l l o f t h e that he established neither what his C o m m o n w e a l t h ’ s w i t n e s s e s testimony would have been, nor how it regarding Reinert’s mental and would have altered the outcome of the physical state at the time he was hearing. There was never an evidentiary given Miranda warnings and when hearing on the ineffectiveness issue, which he made statements to both the was raised for the first time in the police and the medical staff. Pennsylvania Superior Court; the Superior Moreover, we note that the Court rejected that claim on the basis of C o m m o n w e a l t h p r o d u c e d the record before it. o v er w helming evidence that
A motion for reconsideration and/or Reinert had knowingly and reargument was denied by the Court. A voluntarily waived his Miranda petition for allowance of appeal and a rights. Thus, we conclude that trial petition for reconsideration of denial of counsel was not ineffective for petition for allowance of appeal were filed failing to call medical experts at the and denied by the Pennsylvania Supreme s u p p r e s si o n hea ring . See Court on September 26, 1996, and [ Commonwealth v. Williams , 640 December 11, 1996, respectively. A A.2d 1251 (Pa. 1994)] (counsel was petition for a writ of certiorari was denied not ineffective for failing to call by the United States Supreme Court on expert witnesses w here he October 6, 1997. This petition for a writ extensively cross-examined police of habeas corpus now before us was filed officer and doctor regarding their on October 2, 1998, and was denied by the t e s t i m o n y ) ; s e e a l s o District Court on July 8, 2002. A motions Commonwealth v. Logan , 549 A.2d panel of this Court granted a certificate of 531 (Pa. 1988) (counsel was not appealability (“COA”). Reinert continues ineffective for failing to employ to serve a sentence of life imprisonment for murder. Because Reinert’s claims III. Admissibility of Reinert’s were fully adjudicated in state court, we Statements apply the by now familiar AEDPA
A. Pre- Miranda Statements to EMT standard of review, which we set forth in Snyder and Officer Zimmerman the margin. [2] As we have set forth above, at the time of his initial statement Reinert was in the that the following colloquy ensued. ambulance being tended by the EMTs.
Q. Did M r. Reinert respond to this After asking questions about his past first question, “did he understand medical history and allergies to his right?” medications, EMT Snyder, in an effort to find out how the injury to the abdomen A. As best as he could, yeah, he – was sustained, asked Reinert what they were working on him and he, happened, receiving the response “I you know, he kind of nodded and stabbed him with a butcher knife, then I then he said yes, or yeah. did myself.” At this point, Snyder notified
Q. Did he actually vocalize words? Officer Zimmerman and went on with his treatment. When asked whether he was A. Right, yeah. paying attention to the conversation taking
Q. He said, “yeah”, correct? place between Officer Zimmerman and Reinert, Snyder responded: “No, my job is A. Correct to administer emergency care, and my
Q. And you then asked him a patient is my priority.” second question, and what did he After Snyder asked Zimmerman to step respond then? in, Zimmerman, without advising Reinert A. He basically just said, “I think I of his Miranda rights, asked him “what killed him” He didn’t say yes, and happened?” and Reinert responded to the then go on – he just started talking. question by stating: “I think I killed him. I think I stabbed him.” At that point, Q. And what else did he say, or did Zimmerman read Reinert his Miranda you ask any further questions? rights. More specifically, Zimmerman
A. Yeah, I said, again, going back read to Reinert the standard Miranda Card, to that first thing, “I think I killed the text of which we set forth in the him, I stabbed him.” I said “Who margin. [3] At trial, Zimmerman testified did you kill?” And he said, “Sean.” And I asked, “Sean Brady?”
and—or he said, “Sean Brady,” I Furthermore, although the said, “Is that the gentlemen upstairs police were present, there is on the third floor?” He said, nothing in the situation which “Yes.” I said, “How did you do would lead a reasonable man to it?” He said, “With a butcher believe that he was under arrest or knife.” in the custody of the police. The
arrival of the police at the scene Reinert argues at great length that he was due to a request made on his was in custody at the time of the behalf by his mother and her ambulance statements. His principal husband, and the defendant’s contentions are the following: (1) The transport to the Hospital Center was police had entered his home and controlled voluntary on his part. The mere it (though they had entered at his mother fact that police were present was and stepfather’s request); (2) the not in any way indicative that the investigating officers were directed to defendant was in their custody. accompany Reinert in the ambulance and Their presence could be explained keep him in their custody; and (3) the by many things, including a desire officers were in close proximity to Reinert to interview an important witness in the ambulance. Reinert contends that or a desire to protect a potential these factors combined in such a way that victim. a reasonable man in his situation would not think himself “free to leave.” We conclude, therefore, that the
statement made to paramedic It is not entirely clear from Reinert’s Snyder was not made while the brief whether he objects to the statement defendant was in custody, and, made to the EMT or only to the one made furthermore, that it was not made to Zimmerman, but we will assume that pursuant to interrogation by police objection is made to both. officers. 1. The pre- Miranda statement to EMT The question, of course, is whether the Snyder state court’s determination that Reinert The state trial judge found as follows: was not in custody is contrary to, or involved an unreasonable application of, The first statement is that clearly established federal law, as statement volunteered by the determined by the Supreme Court of the defendant to paramedic Snyder. At United States, or resulted in a decision that the time the statement was made, it wa s ba se d on an u n r e a s o n a ble was volunteered by the defendant determination of the facts in light of the in response to a routine question by evidence presented in the state court paramedic Snyder. It was not proceeding. We do not believe that this solicited by the police. standard is met by Reinert with respect to the statement made to the EMTs. Reinert free not to answer questions. He contrasts was not in custody, nor was he a suspect in his situation with the one at issue in United a crime when he entered the ambulance for States v. Leese , 176 F.3d 740 (3d Cir. the purpose of medical treatment and 1999), where a postal employee suspected transport to the hospital. Although police of having stolen postal funds was found officers accompanied Reinert in the not to be in custody during the course of ambulance, at that time officers had the an interrogation where she was told she limited knowledge that a body was found was not under arrest, that she would not be inside the house and that Reinert appeared made to go with her questioners when they to be wounded. Officers could have left, and during the course of which she reasonably assumed that Reinert was a was allowed to take breaks in order to victim who could possibly identify a third consult with her union representative. person that may have been in the house. Reinert argues that unlike in Leese where Snyder stated that police officers regularly the suspect was given ample opportunity to ride with him in the ambulance and that he end questioning and where she was requested police officers to accompany explicitly told that she was not under him on this occasion. arrest, Reinert was never afforded similar
information or opportunities. Ordinarily, in determining whether an individual is in custody, the ultimate While the difference is real, it is not inquiry is “whether there is a ‘formal arrest dispositive. Had Zimmerman made an or restraint on freedom of movement’ of explicit statement to Reinert that he was the degree associated with a formal arrest.” not under arrest or that he need not answer California v. Beheler , 463 U.S. 1121" date_filed="1983-07-06" court="SCOTUS" case_name="California v. Beheler">463 U.S. 1121, 1125 questions, such a statement would surely (1983) (quoting Oregon v. Mathiason , 429 have bolstered the governmen t’s U.S. 492, 495 (1977) (per curiam)). When contention that Snyder’s questioning was the individual has not been openly arrested non-custodial in nature. However, the when the sta tements are ma de, absence of such a statement does not ipso “‘something must be said or done by the facto turn questioning into a custodial authorities, either in their manner of interrogation, especially wh en the approach or in the tone or extent of their questioning is being done by a medical questioning, which indicates they would professional in the course of providing not have heeded a request to depart or to routine medical care. See Mathiason , 429 allow the suspect to do so.’” Steigler v. U.S. at 495 (“[P]olice officers are not Anderson , 496 F.2d 793, 799 (3d Cir. required to administer Miranda warnings 1974) (quoting United States v. Hall , 421 to everyone whom they question. Nor is F.2d 540, 545 (2d Cir. 1969)). the requirement of warnings to be imposed
simply because . . . the questioned person Reinert argues that the interrogation in is one whom the police suspect.”) Given the ambulance was custodial because he that Reinert was in the ambulance was never told that he was free to leave or receiving care for an open wound and had determined by the Supreme Court. an oxygen mask covering his face, it seems Accordingly we will affirm the order of unlikely that he could or would have left the District Court on that issue. the EMTs’ care, even if Zimmerman had
2. The pre- Miranda statement to Officer told him that he was at liberty to do so. Zimmerman Under those circumstances, an explanation that he was not required to answer The statement made to Officer questions would have no doubt been more Zimmerman in response to his “what meaningful and more approp riate. happened” question (“I think I killed him, However, as we explained above, such a I stabbed him.”) is another matter. At that statement, while helpful to determine the point Reinert had made an incriminating custodial nature of the interrogation, is not statement, and when the EMT turned him required to render an interrogation non- over to Officer Zimmerman, he had to custodial. know that he was a suspect being
questioned by a police officer. Prior to More to the point, although Officer starting his question, Zimmerman should Zimmerman was present under the have, but failed to, read Reinert his described circumstances, the case of Miranda rights. The state trial judge’s ambulance transportation is oblique to the treatment of this matter was premised on a core of “in custody” jurisprudence where misapprehension or misstatement of the the focus is on the relationship between the facts—that Reinert had been Mirandized officers and the suspect in terms of already when, in fact, he had not: “The putative coercion and freedom to leave. In next statement made by the defendant was our view, the presence of Zimmerman in a statement given to Officer Zimmerman the ambulance was a background factor in in the ambulance. Prior to this statement, terms of Reinert’s statement to Snyder. Officer Zimmerman advised the defendant Reinert had entered the ambulance of his Miranda rights, following which the voluntarily and was in the charge of the defendant indicated that he wished to EMTs who elicited the challenged answer questions.” The Commonwealth statement innocently (they did not know now concedes that the judge was mistaken Reinert to be a criminal suspect) in the in stating that Reinert was given Miranda course of obtaining routine medical warnings before the statement to information. Under these circumstances, Zimmerman. We must therefore reject the and others recited above, we do not think state court’s finding with respect to the that the state trial judge’s determination first ambulance statement to Zimmerman. was bas e d o n a n u nrea sona ble However, “[w]here a subsequent determination of the facts in light of the confession is obtained constitutionally, the evidence. Nor was the legal conclusion a dmission of pri or inad missib le based thereon contrary to or an confessions [is] harmless error.” United unreasonable application of federal law as States v. DeSumma , 272 F.3d 176" date_filed="2001-11-29" court="3rd Cir." case_name="United States v. Frank Desumma, A/K/A Doc, Frank Desumma">272 F.3d 176, 180 (3d Cir. 2001) (quoting United States v. intelligently. Johnson , 816 F.2d 918, 923 (3d Cir.
* * * 1987)) (first alteration in original). Because we conclude that Reinert made If the interrogation continues subsequent, constitutionally obtained, without the presence of an attorney admissible statements that mirrored his and a statement is taken, a heavy earlier un-M irandized statement, see infra burden rests on the government to Parts III.B and III.C, we hold that demonstrate that the defendant admission of the initial statement was knowingly and intelligently waived harmless error, even under the stringent his pri v i le g e a g ainst self - constitutional error standard where we incrimination and his right to may affirm only if the error is harmless retained or appointed counsel . beyond a reasonable doubt. See United Escobedo v. Illinois , 378 U.S. 478" date_filed="1964-06-22" court="SCOTUS" case_name="Escobedo v. Illinois">378 U.S. 478, States v. Molina-Guevara , 96 F.3d 698, 490, n.14 [(1964)]. This Court has 703 (3d Cir. 1996) (citing Chapman v. always set high standards of proof California , 386 U.S. 18" date_filed="1967-03-27" court="SCOTUS" case_name="Chapman v. California">386 U.S. 18, 24 (1967)). for the waiver of constitutional
rights, Johnson v. Zerbst , 304 U.S. B. The Post- Miranda Statement to 458 (1938), and we reassert these Officer Zimmerman standards as applied to in-custody At this point, Zimmerman read Reinert interrogation. his Miranda rights. The issues presented Id . at 444, 475 (emphasis added). by Reinert are twofold. He contends (1) that he was not physically and mentally The Court made clear in Moran v. capable of knowingly, intelligently, and Burbine , 475 U.S. 412, (1986), the two- voluntarily waiving his Miranda rights and pronged test for waiver: (2) that even if he were, the post- Miranda
First, the relinquishment of the statement was not validly obtained in light right must have been voluntary in of his pre- Miranda confession. the sense that it was the product of 1. Competence and waiver a free and deliberate choice rather than intimidation, coercion, or The Supreme Court has frequently deception. Second, the waiver articulated the applicable waiver standard. must have been made with a full In Miranda v. Arizona , 384 U.S. 436 awareness of both the nature of the (1966), the Court held as to waiver and right being abandoned and the burden: consequences of the decision to The defendant may waive abandon it. Only if the totality of effectuation of these rights, the circumstances surrounding the provided the waiver is made interrogation reveal both an v o l u n tarily, k n o w i n g l y a n d uncoerced choice and the requisite level of comprehension may a court that there was no physical or properly conclude that the Miranda psychological coercion in the rights have been waived. situation, nor in the questioning
te chn ique use d by Of fic er Id . at 421 (internal quotations marks and Zimmerman. citations omitted). This finding is clearly supported in the We have also explained that: record. EMT Snyder testified at the This inquiry requires us to consider suppression hearing that Reinert remained the totality of the circumstances “conscious, alert, and oriented throughout surrounding the interrogation, our transport” and that he was “very much which includes examining the aware and awake, and knew what was events that occurred and the going on. I explained every part of the background, expe rience, and treatment that I was doing for him, and he conduct of the defendant. Miranda understood that fully.” When asked, “And rights will be deemed waived only this was during the entire time when whe re the to tality of th e Officer Zimmerman was talking to Mr. circumstances “reveal[s] both an Reinert as well?”, Snyder responded, uncoerced choice and the requisite “That’s correct.” In sum, Snyder stated level of comprehension.” that Reinert answered all questions posed
to him “ intelligently.” Officer United States v. Sriyuth , 98 F.3d 739" date_filed="1996-10-18" court="3rd Cir." case_name="United States v. Nopporn Sriyuth, A/K/A Thi Nopporn Sriyuth">98 F.3d 739, 749 Zimmerman testified that Reinert was (3d Cir. 1996) (quoting Moran , 475 U.S. at “lucid and coherent.” And Officer 421) (citations omitted). Lembach, who was also in the ambulance, The state trial judge concluded, after testified that Reinert was alert and the suppression hearing, that Reinert’s coherent, and that his answers to questions mental and physical states were such that asked in the ambulance were responsive he was “conscious, alert and oriented on and pertinent and did not go off on three spheres.” She added that: tangents.
[T]he interview by Officer As noted above, Reinert had walked to Zimmerman w as brief , the the ambulance. The record of treatment interrogation routine, and the administered to him in the ambulance was detention basically the result of unexceptional. Reinert was wearing an circumstances created by the oxygen mask but that did not impair defendant. Clearly there was no communication. He was receiving IV physical threat to the defendant fluids and was connected to an from the police inasmuch as the electrocardiograph. His vital signs were interview took place in the monitored. But none of this impaired his ambulance in the presence of coherence. Supporting this conclusion is paramedics. We firmly conclude the testimony of Nurse Patricia Lombardo
of LVMC who, shortly after Reinert’s Drefke , 707 F.2d 978" date_filed="1983-06-07" court="8th Cir." case_name="United States v. Paul M. Drefke, United States of America v. Richard O. Jameson">707 F.2d 978, 983 (8th Cir. 1983) admission, observed him and administered (holding efforts to supplement record by the Glasgow coma test, about which she affidavits or attachments to brief discoursed at some length. The short of it improper)). Reinert counters with the is that Reinert received the highest argument that consideration of these (Glasgow) score for verbal and motor affidavits is necessary to demonstrate the response, and for being alert and oriented. ineffectiveness of his trial counsel in not His respiratory rate, vital signs, etc., were presenting expert evidence at the all good. Independently, Nurse Lombardo suppression hearing. This “counter” concluded that Reinert was alert. seems inadequate because the affidavits
are being presented in support of two In opposition to this welter of different contentions: a merits issue testimony the state trial judge had only the involving Miranda rights and a collateral testimony of Reinert’s mother and issue involving the ineffective assistance stepfather, which it had the clear right not of counsel. Given that these affidavits to credit, and did not credit. In this appeal, were not part of the record before the trial Reinert relies largely on the affidavits of court, Reinert most likely procedurally two psychiatrists whose affidavits were defaulted this line of argument on his offered at the Pennsylvania Superior Court Miranda claims, and should be allowed level as appendices to his direct appeal only to use the affidavits insofar as his brief. The Superior Court declined to claim for ineffectiveness is concerned. consider these affidavits and none of them However, since the affidavits relate both to were before the trial court. They were also the Miranda and ineffectiveness issues, attached to his federal habeas petition. and since we will need to examine the These psychiatrists, Dr. Lynn Bornfriend a f f i d av i t s w h e n w e r e a c h t h e (“Dr. Bornfriend”) and Dr. Robert Sadoff ineffectiveness claims, we will, out of an (“Dr. Sadoff”), did not examine or witness abundance of caution, consider the Reinert during the time period in which he substance of the Sadoff and Bornfriend was in the hospital or in the ambulance, affidavits— both of which conclude that and relied solely upon the narratives of Reinert was not competent physically or Reinert’s family and friends and excerpts mentally to waive Miranda rights or to from the (subsequent) medical records of make statements either in the ambulance or
LVMC.
post-operatively at the hospital—in terms The Commonwealth submits that we of the Miranda claims as well. cannot consider these affidavits which Dr. Bornfriend relies on a number of were not a matter of record and which are factors: (1) several nursing entries presented to the Court merely as describing Reinert as confused after his attachments to a pleading, citing United admission to LVMC; (2) lab evidence of States v. Madkins , 994 F.2d 540, 542-43 dehydration, blood loss, liver damage and (8th Cir. 1993) (citing United States v. an extruding wound (the occasion for the given Miranda warnings, but admitted the subsequent surgery); and (3) an increased written confession. Elstad was convicted, white blood cell count. Dr. Bornfriend but the Oregon Court of Appeals reversed, opines that Reinert was in emotional holding that the confession should also shock, largely as the result of having been have been excluded because of the brief in the house with a corpse for two days. p e r i o d s e p a r a t i n g h i s i n i t i a l , She also makes reference to his recent unconstitutionally obtained statement and suicide attempt. Dr. Sadoff relies on: (1) his subsequent confession. In reversing Reinert’s mother’s description of his the Oregon Court of Appeals, the United confusion; (2) the emotional shock of the States Supreme Court explained that the altercation with Sean Brady; and (3) failure of police to administer Miranda Reinert’s low blood pressure and fast heart warnings does not mean that the rate. We find this counter underwhelming, statements received have actually been surely not enough to render the state trial coerced, but only that courts will presume judge’s supported findings unreasonable or the privilege against compulsory to undermine her conclusions of law under s e l f -i n c r im i n a t io n h a s n o t b e e n the AEDPA standard as to the validity of intelligently exercised. See Elstad , 470 the waiver and the post- Miranda statement U.S. at 304-11. in the ambulance.
The Court held that it was “an 2. Validity of post- Miranda statement unwarranted extension of Miranda to hold that a simple failure to administer the Reinert argues that, even had he been warnings, unaccompanied by any actual competent to waive his Miranda rights in coercion or other circumstances calculated the amb ulanc e, the p ost- Miranda to undermine the suspect’s ability to statement would nevertheless be invalid exercise his free will, so taints the because it followed too quickly on the investigatory process that a subsequent heels of a non-Mirandized confession. To voluntary and informed w aiver is support his contention, Reinert attempts, ineffective for some indeterminate period.” unsuccessfully, to distinguish his case Id . at 309. The Court further held that from Oregon v. Elstad , 470 U.S. 298 although Miranda “requires that the (1985). In Elstad , a man suspected of unwarned admission must be suppressed, burglary made an incriminating statement the admissibility of any subsequent in his own home without having been sta t e m e n t s h o u ld tur n in these Mirandized. He was taken to the police circumstances solely on whether it is station, and after he was advised of and knowingly and voluntarily made.” Id. waived his Miranda rights, the suspect Absent deliberate coercion or improper produced a written confession. In his tactics in obtaining an unwarned subsequent prosecution for burglary, the statement, a careful and thorough state trial court excluded from evidence his administration of Miranda warnings cures first statement because he had not been the condition that rendered the unwarned and second responses to the police statement inadmissible. See id. at 311-12. was “speculative and attenuated,”
id . at 313. Although the Elstad Reinert argues that no cure could be Cou rt expressed no explicit made in his case because the police created conclusion about either officer’s coercive circumstances and that other state of mind, it is fair to read independent circumstances, such as the Elstad as treating the living room injury and resulting pain, tainted the conversation as a good-faith investigatory process beyond repair. We Miranda mistake, not only open to disagree. The Supreme Court’s most correction by careful warnings recent pronouncement on this issue before systematic questioning in supports our conclusion. In Missouri v. that particular case, but posing no Seibert , 124 S. Ct. 2601 (2004), a suspect threat to warn-first p ractice was questioned for 30 to 40 minutes and generally. See Elstad , [470 U.S.] at confessed to her role in the crime of 309 (characterizing the officers’ second-degree murder. She was given a omission of Miranda warnings as 20-minute break and was only then “a simple failure to administer the Mirandized. After receiving her Miranda warnings, unaccompanied by any warnings, she signed a waiver and the a c t u a l c o e r c io n o r o t h e r questioning resumed. During the post- c irc umsta nces calc ulate d to Miranda questioning, she was confronted undermine the suspect’s ability to with her prewarning statements, and was exercise his free will”). made to repeat the information she had given before she was Mirandized. In Id . at 2612. holding unconstitutional the interrogation
We are confident that Reinert’s case technique of intentionally withholding more closely resembles Elstad’s than Miranda rights to obtain a confession and Siebert’s. Zimmerman’s initial failure to of subsequently reading the Miranda rights read Reinert his Miranda rights, though and continuing on with the interrogation, unfortunate and unexplained, seems much the Supreme Court distinguished Seibert more likely to have been a simple failure from Elstad in the following way: to administer the warnings rather than an Elstad rejected the “cat out of the intentional withholding that was part of a bag” theory that any short, earlier larger, nefarious plot. While it would have admission, obtained in arguably been preferable for Zimmerman to read innocent neglect of Miranda , Reinert his rights immediately before determined the character of the eliciting the initial response, we conclude later, warned confession, Elstad , that the cure mandated by Elstad was met 470 U.S. at 311-14; on the facts of in this case and that, because Reinert’s that case, the Court thought any waiver was knowing and voluntary, the causal connection between the first post- Miranda statement was properly
entered into evidence. We have scrutinized the entire LVMC record. That record is consistent with the C. The Statement at the Hospital facts chronicled above, most importantly Probably the most incriminating that at times relevant Reinert was alert and statement made by Reinert was that made oriented. Initially, the surgeon, Dr. Barry to Detectives Stauffer and Granitz after Slavin, reported that Reinert woke up surgery at LVMC. In that statement promptly and was awake and alert after Reinert admitted that he had obtained a recovery from anesthesia. Morphine for knife and then went to see Brady, who was pain was not administered until 10:00 in bed, and stabbed him. We have already p.m., well after the statement at issue had recounted the essential history of the been made. Reinert was also given events after Reinert’s admission to the Robinal, a sedative and muscle relaxant, at hospital, see supra Part I. We have 3:30 p.m. and Cefoxitan, an antibiotic, at amplified that de scription through 6:30 p.m. The most important witness, recitation of the state trial judge’s findings, however, was Dr. Hashemi, the chief see supra Part II; we will not rescribe that surgical resident, who had come to LVMC material here. However, our review of the afer three years of surgical residence at record confirms that all the facts stated by Presbyterian and the University of Judge McGinley are supported by the Pennsylvania Medical Center. As noted record. above, Dr. Hashemi testified that he had
performed a post-operative check at 7:30 As our frame of reference, we reiterate p.m. on the defendant, and that he had seen that surgery (on March 10, 1991) lasted that Reinert was awake, coherent, and had from 1:15 p.m. to 3:45 p.m., and the stable vital signs. His chart indicated no interrogation took place at about 8:00 p.m. abnormality with regard to Reinert’s It was discovered during surgery that one ability to answer questions appropriately. of the knife wounds in Reinert’s abdomen This testimony accords with that of the had also cut his liver. The surgery detectives who questioned Reinert after his consisted of an exploratory laparotomy to surgery and said that they found him examine stab wounds to the abdomen. The conscious, oriented, alert, and responsive. results were essentially negative, except for a non-bleeding laceration of the left Arrayed against this solid phalanx of lobe of the liver and a large retroperitoneal evidence is the testimony of Reinert’s hematoma. There was no evidence of mother, stepfather, a friend Cindy injury to any intraabdominal organ. Mellinger, and Reinert’s mother’s pastor, Because the retroperitoneal hematoma was Ronald Keller, who saw Reinert after the stable, nothing was done, and the abdomen police left. They all described him as was closed after copious irrigation. extremely quiet and soft spoken, kind of Reinert’s wrist lacerations were then “mumbly,” heavily sedated. Reinert also repaired, and he was taken to the Shock contends that he was affected by the pre- Trauma Unit for observation. surgical med icine, es pecia lly the anesthesia, and by the Robinal given at IMPRESSIONS: The patient is 3:30 p.m. Additionally, Reinert relies a 27 year old white male admitted heavily on appeal on a psychiatric consult to the Lehigh Valley Hospital the day after surgery. Center on 03/10/91 followed self
inflicted stab wounds with slashed Dr. Joseph Antonowicz, a psychiatrist, wrists. He is currently under arrest reported that: on suspicion of having murdered The patient tells me that he his roommate. The patient has remembers essentially nothing of essentially no recollection of events the events that led to his leading to and including these hospitalization here. He tells me alleged occurrences. At the present that the police have informed him time he is confused, overwhelmed, that they suspect him of having frightened and seemed somewhat murdered Shawn. He is quite disorganized in his thought surprised by this. The patient is processes. very tearful at the loss of Shawn
Working diagnoses are: and seems to genuinely miss him. He states that he currently does 1. Psychogenic amnesia versus have suicidal ideation, although he malingering. does not have a plan at this time.
2. Possible reactive psychosis. The patient is an alert, I am uncertain about the presence cooperative young man who of psychosis in this case, although appears quite sad. He also appears he doe s se em inordina tely very befuddled and shows some bewildered and disorganized. disorganization in his thought
These pieces of evidence are used by process. He tends to be somewhat Drs. Bornfriend and Sadoff in their rambling and at times is mildly affidavits. Dr. Bornfriend writes: loosened in his associations. He seems quite bewildered by what’s Reinert was in the Operating Room going on as well as frightened. for laparotomy and tendon repair There are no hallucinations. There until around 4:00 in the afternoon. do not appear to be delusions During surgery, he was given many present at this time. However, the anesthetics, including Fentanyl, a patient is somewhat guarded in his synthetic narcotic, and Robinal, a history. Affect is depressed. sedative and muscle relaxant. Sensorium: He is oriented times Without the above medications, any three. Memory: 2 of 3 objects at 5 patient would be in severe pain minutes. Similes: Good. Proverbs: after such extensive surgery. It Quite concrete. Insight: Limited. was, therefore, clear that the Judgment: Good on formal testing. narcotic and sedative and muscle r e l a x an t e f f e c t s o f th e s e following surgery. medications persisted and remained
Thus, for all the reasons noted during the course of Mr. Reinert’s above, it is my opinion, within being interviewed by the police and reasonable medical and psychiatric that when these medications wore certainty, that at the time of the off, Mr. Reinert was in severe pain taking of the statement of Scot and required 4 mgs. of morphine. Reinert, he was not at his clearest In addition, the fact that a physician thinking and was under the told police officers that Mr. influence of the shock of the loss of Reinert’s health would not be his lover, the shock of his own threatened by their questioning him wounds and recently emerging does not imply that he was from general anesthesia with cognitively and mentally clear abdominal surgery and that his will enough for them to do so. and strength and clarity of mind Dr. Sadoff recapitulates the traumatic were all impaired. It is more likely events preceding the stabbing, the than not that at the time he was impressions of Dr. Antonowicz, the reports interrogated by the police and given of the family members who saw Reinert his Miranda rights, his emotional after the surgery, and the LVMC records. state was so impaired that he would He concludes: not have been able to resist
effectively the demands of the One is usually in a fairly police at the time or the requests of confused state of mind following the police. It would seem that his surgery with general anesthesia, statement would not be totally and is not thinking as clearly voluntary, as he may choose, when usually, as one does after several in a clearer state of mind, to resist days. Scot had just been through a giving such a statement, especially serious altercation with his lover, under the advice of his attorney, if had lost his lover by death and had he had been allowed to see his been in a state of shock himself attorney prior to the interrogation. following loss of large quantities of blood due to self-inflicted and other The note of Dr. Antonowicz, the wounds to his wrists and his psychiatrist who examined him in abdomen. He appeared confused to consultation one day after he was his mother on the telephone and admitted and then three days later, also when she visited him at his indicated a clearing of his residence shortly thereafter. He s e n s o r i u m o n t h e s e co n d also appeared less than clear to his examination. This implies that his mother, stepfather, pastor and first examination showed Scot to be female friend while in the hospital less than clear, and that was one day after his admission or one day with those of Judge McGinley, see supra after the interrogation. . . . Part II, which are entitled to deference.
See Sumner v. Mata , 449 U.S. 539" date_filed="1981-01-21" court="SCOTUS" case_name="Sumner v. Mata">449 U.S. 539 (1981). [4] Thus, it is for all these reasons that it is my opinion, within reasonable medical certainty, that at [4] Reinert urges us to follow the the time of the taking of the example of the Supreme Courts of statement by the police, Scot Minnesota and Alaska and rule that, in Reinert was in such a weakened the absence of an electronic record of the state of emotional condition custodial interrogation in the hospital (by following the shock to his system either audiotape or videotape), we should from the death of his lover, the suppress the confession as a violation of wounds that he had to his own the Fifth Amendment, Sixth Amendment, body, the medication that he was protections of due process, protection under, the loss of blood, the against self-incrimination, and provisions surgical procedure under general for effective assistance of counsel and anesthesia, that his mental state was confrontation. See State v. Scales , 518 not clear enough for him to be N.W.2d 587 (Minn. 1994) (holding that competent to waive his Miranda custodial interrogations must be recorded warnings or to give a truly where feasible); Stephan v. State , 711 voluntary statement. P.2d 1156 (Alaska 1985) (holding that non-recorded statements made during the
W e f i n d t h e s e a rg u m e n t s course of a custodial interrogation should underwhelming, and conclude that they do be suppressed because they were not even come close to rendering the state obtained in violation of the Due Process trial judge’s findings of fact unreasonable Clause of the Alaska Constitution). under the totality of the record, or in any While the advocated policy may be a way undermine her conclusions of law desirable one, Reinert can point to no under the AEDPA standard. The Pennsylvania law supporting it; indeed Bornfriend and Sadoff affidavits are there is none. Even if there were such a extremely generalized and conclusory and, rule announced in Pennsylvania, we, as a at all events, do not counter the federal court sitting in habeas considerable evidence of Reinert’s jurisdiction, would not have the authority competence to waive his Miranda rights to review a violation of the state and to make a statement which was constitution. It therefore goes without credited by the suppression judge, to saying that, given that there is no right to whose findings heavy deference is owed recorded custodial interrogations under under AEDPA. Indeed, they also rely on Pennsylvania law, we are certainly not at statements that the judge discredited. liberty to create one. Insofar as Reinert Additionally, we note that the Superior invokes the Fifth and Sixth Amendments Court also made findings of fact consonant of the Federal Constitution, he invokes a and medical staff: “We conclude that trial counsel was not ineffective for failing to
IV. The Ineffective Assistance of call medical experts at the suppression Counsel Claims hearing.” Indeed, the state court followed A. Failure of State Trial Counsel to Call the relevant Pennsylvania authority for the a Medical Expert to Testify at the proposition that trial counsel need not Suppression Hearing as to Reinert’s introduce expert testimony on his client’s Alleged Mental and Physical Inability to behalf if he is able effectively to cross- Voluntarily and Knowingly Waive His examine prosecution witnesses and elicit
Miranda Rights helpful testimony. See Commonwealth v. Williams , 640 A.2d 1251" date_filed="1994-04-21" court="Pa." case_name="Commonwealth v. Williams">640 A.2d 1251, 1265 (Pa. 1994). Reinert claims that his trial counsel Trial counsel was surely able to do so here. was ineffective for failing to call an expert medical or psychiatric witness to testify The Superior Court’s rejection, under about his physical and mental condition at Williams , of Reinert’s claim that his trial the time he waived his Miranda rights. In counsel was ineffective for failing to call order successfully to claim ineffective an expert witness with respect to his assistance of counsel, Reinert must mental and physical condition was not an establish both that his attorney’s unreasonable application of the standards performance was objectively unreasonable set forth in Strickland in light of the and that, but for the deficient performance, evidence from police officers and medical there would have been a reasonable personnel that Reinert’s waiver of his probability of a different outcome. See Miranda rights was knowing and Strickland v. Washington , 466 U.S. 668 voluntary. Reinert’s claim must therefore (1984). Reinert can make neither showing fail. Furthermore, we reject the notion, here. After reviewing the record, the advanced at oral argument, that Reinert Superior Court found that trial counsel should be entitled to an ineffective thoroug hly cross-examined all the assistance of counsel hearing at this Commonwealth’s witnesses regarding juncture. Given the well developed record Reinert’s mental and physical state at the in this case and our analysis of it above, time he was given his Miranda warnings we do not see what more useful and when he made statements to the police information could be elicited at this time.
B. Failure to Inform Reinert of His Right to Testify at the Suppression
purported federal right to have a Hearing custodial interrogation recorded. He Reinert contends that his state trial does not, however, cite any authority for counsel was ineffective for not informing this proposition; again there is none. We him of his right to testify at the will, at this juncture, decline to infer a suppression hearing. At the suppression federal right to have custodial hearing Reinert’s counsel called his interrogations recorded. mother, stepfather, a female friend, and his mother’s pastor to testify about his
might have been risky to his defense. physical condition post-surgery and prior Reinert testified extensively at trial about to his statement to the officers. Reinert’s the entire incident leading up to and mother and stepfather also testified to following the death of Sean Brady. By Reinert’s condition prior to his transport to taking the stand at the suppression the hospital (and prior to his initial hearing, Reinert may have been statement). Additionally the medical providing the Commonwealth with the records of LVMC were before the means to impeach his testimony. In suppression court. The suppression court United States v. Salvucci , 448 U.S. 83" date_filed="1980-06-25" court="SCOTUS" case_name="United States v. Salvucci">448 U.S. 83, thus had before it a considerable amount of 93-94 (1980), the Supreme Court evidence supporting Reinert’s position that reserved the question whether Simmons he was not competent to give a statement v. United States , 390 U.S. 377" date_filed="1968-03-18" court="SCOTUS" case_name="Simmons v. United States">390 U.S. 377 (1968), or to waive Miranda rights. We do not see precludes the use of a defendant’s that Reinert’s testimony would have added testimony at a suppression hearing to anything to the mix in his favor, and, as impeach his testimony at trial. The Court the Pennsylvania Superior Court observed, noted, however, that a number of courts Reinert failed to state with any specificity considering the question had held that what his testimony would have been such testimony is admissible as evidence and/or how his testimony would have of impeachment. Id . at 94 & n.8 (citing altered the outcome of the hearing. The Gray v. State , 403 A.2d 853" date_filed="1979-07-16" court="Md. Ct. Spec. App." case_name="Gray v. State">403 A.2d 853, 858 (Md. Superior Court concluded that Reinert had Ct. Spec. App. 1979) (noting that nothing failed to establish that his claim had in Simmons precludes use of defendant’s arguable merit, that his counsel’s actions testimony at suppression hearing for were unreasonable, or that he suffered purpose of impeachment at trial); People prejudice. In our view, the District Court v. Sturgis , 317 N.E.2d 545" date_filed="1974-09-27" court="Ill." case_name="People v. Sturgis">317 N.E.2d 545, 547-48 (Ill. correctly concluded that the state court’s 1974) (same); People v. Douglas , 136 resolution of this claim was not objectively Cal. Rptr. 358, 363 (Cal. Ct. App. 1977) unreasonable. The Superior Court also (holding that defendant’s testimony at found that Reinert had failed to show that suppression hearing was admissible for he was prejudiced by the failure of counsel impeachment purposes because to inform him of his right to testify at the defendant took the stand in his trial and suppression hearing, i.e. , that there was a testified in a manner inconsistent with his reasonable probability that, but for pretrial testimony)). Were we to adopt a counsel’s alleged error, the result of the similar interpretation of Simmons and proceeding would have been different. [5] conclude that suppression testimony was fair game for impeachment purposes, the [5] While we need not decide whether action of putting Reinert on the stand counsel’s performance was deficient, it is during the suppression hearing could worth noting that Reinert’s testimony have itself potentially become subject to
Finally, we consider the affidavit of clearly established federal law as submitted by Reinert’s trial attorney Diane determined by the United States Supreme Dickson. In our view, the Dickson Court. affidavit, which constitutes a conclusory
We will therefore affirm the order of concession of ineffectiveness by trial the District Court denying the petition. counsel, does not mitigate the propriety of the actions taken during the time of trial, and does not affect the outcome.
V. Conclusion In light of our extensive review of the record before us, we conclude that the state trial court’s decision to deny Reinert’s motion to su ppress the statements at issue was not an unreasonable determination of the facts in light of the evidence presented in the state court proceedings, and that it was neither contrary to nor an unreasonable application of clearly established federal law as determined by the United States Supreme Court. To the extent that the state trial court’s finding on the one pre- Miranda statement made to Officer Zimmerman was in fact unreasonable in light of the evidence presented before it, the statement should have been suppressed. However, the admission of duplicative statements was proper, and the error was therefore harmless.
As for Reinert’s claims of ineffective assistance of counsel, he has failed to demonstrate that he was prejudiced by his counsel’s performance, and the state court’s conclusions on the issue were not contrary to or an unreasonable application an allegation of ineffectiveness.
NOTES
[2] Although our review of the District Court’s decision is plenary, Marshall v. involves “an unreasonable application Hendricks , 307 F.3d 36" date_filed="2002-09-11" court="3rd Cir." case_name="Marshall v. Hendricks">307 F.3d 36, 50 (3d Cir. of” clearly established federal law if it 2002), under AEDPA and the Supreme “unreasonably applies the law of this Court’s decision in Williams v. Taylor , Court to the facts of a prisoner’s case.” 529 U.S. 362" date_filed="2000-04-18" court="SCOTUS" case_name="Williams v. Taylor">529 U.S. 362 (2000), we must deny Id . at 409. This is an objective test: “[A] federal habeas corpus relief to any claim federal habeas court making the which was adjudicated on the merits in a ‘unreasonable application’ inquiry should state court proceeding unless such ask whether the state court’s application adjudication: of clearly established federal law was objectively unreasonable.” Id . (1) resulted in a decision that was Moreover, “unreasonable” does not mean contrary to, or involved an “erroneous.” Thus, “a federal habeas unreasonable application of, court may not issue the writ simply clearly established Federal law, as because that court concludes in its determined by the Supreme Court independent judgment that the relevant of the United States; or state-court decision applied clearly (2) resulted in a decision that was established federal law erroneously or based on an unreasonable incorrectly. Rather, that application must determination of the facts in light also be unreasonable.” Id . at 411. of the evidence presented in the This standard does not apply, State court proceeding. however, to claims that the state courts 28 U.S.C. §§ 2254(d)(1) and (2). A state did not address on the merits. In such court decision is “contrary to our clearly instances we exercise the pre-AEDPA established precedent if the state court standard and “conduct a de novo review applies a rule that contradicts the over pure legal questions and mixed governing law set forth in our cases . . . . questions of law and fact. . . . However, [or] if the state court confronts a set of the state court’s factual determinations facts that are materially indistinguishable are still presumed to be correct, from a decision of this Court and rebuttable upon a showing of clear and nevertheless arrives at a result different convincing evidence. See 28 U.S.C. § from our precedent.” Williams , 529 U.S. 2254(e)(1).” Appel v. Horn , 250 F.3d at 405-06. A state court decision 203, 210 (3d Cir. 2001).
[3] “My name is Officer Bruce Zimmerman of the Allentown Police Department. I wish to advise you that attorney one will be appointed to you have an absolute right to remain represent you, without charge, before any silent. That anything you say can and questioning, if you so desire. And if you will be used against you in a Court of decide to answer any questions you may law. That you have the right to talk to an stop at any time you wish. Do you attorney before and have an attorney understand these rights I’ve explained to present with you during questioning. you? And with these rights in mind, do That if you cannot afford to hire an you wish to talk to us now?”