                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 98-3056
                                   ___________

Phillip Brown,                          *
                                        *
              Appellant,                *
                                        * Appeal from the United States
         v.                             * District Court for the
                                        * Eastern District of Missouri
Paul Caspari, Superintendent,           *
                                        *
              Appellee.                 *
                                   ___________

                             Submitted: March 9, 1999

                                 Filed: August 5, 1999
                                  ___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      SACHS,1 District Judge.
                              ___________

McMILLIAN, Circuit Judge.

     Phillip Brown appeals from a final order entered in the United States District
     2
Court for the Eastern District of Missouri denying his petition for habeas relief.
Brown v. Caspari, No. 4:96CV94JCH (E.D. Mo. June 4, 1998) (memorandum and

         1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri, sitting by designation.
         2
       The Honorable Jean C. Hamilton, Chief Judge, United States District Court for
the Eastern District of Missouri.
order). For reversal, petitioner argues that the district court erred in denying habeas
relief because the state trial court admitted into evidence the confession he made to the
police after he asserted his Fifth Amendment right to remain silent. For the reasons
discussed below, we affirm the judgment of the district court.

                                   JURISDICTION

      The district court had subject matter jurisdiction over this 28 U.S.C. § 2254
habeas petition under 28 U.S.C. §§ 1331, 1651. Petitioner filed a timely notice of
appeal pursuant to Fed. R. App. P. 4(a) (notice of appeal in civil case), (c) (notice of
appeal filed by inmate confined in an institution), and we have appellate jurisdiction
under 28 U.S.C. § 1291.

                              BACKGROUND FACTS

       The following statement of facts is taken in large part from the district court
memorandum and order and the state’s brief. See memorandum and order at 3, 5
(citing findings of fact set forth in State v. Brown, 840 S.W.2d 247 (Mo. Ct. App.
1992) (per curiam) (memorandum and order at 2-3) (Resp. Exh. G in Brown v. Caspari,
No. 4:93-CV-1955-JCH (FRB) (E.D. Mo. Dec. 12, 1994) (order dismissing habeas
petition without prejudice)); Brief for Appellee at 1-3.

        On October 14, 1988, shortly after 10:00 p.m., a man displaying a gun came out
of the restroom of a fast food restaurant. He ordered the four restaurant employees into
the walk-in cooler and ordered the restaurant’s assistant manager to open the safe. The
assistant manager did so and handed about $1,400 to the robber. The robber ordered
the assistant manager to unlock the alarmed door and then go back inside the cooler.
The robber left. The employees waited about five minutes, then they exited the cooler
and called the police. Two weeks later, at about 10:30 p.m., the same man robbed the
fast food restaurant again. The restaurant had just closed and the employees were

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walking through the parking lot to their cars. The robber approached the assistant
manager with a gun and ordered her to give him the bank deposit bags. The assistant
manager did so; the bank deposit bags contained about $1,300. The robber ran down
the street. The assistant manager called police.

       The police investigated the robberies and arrested petitioner on January 28,
1989. (It is not clear from the briefs why or how the police came to suspect petitioner
was the robber.) The police arrested petitioner at about 3:40 p.m. Police officer
Jefferson read petitioner the Miranda3 warnings and handed him a written waiver form.
Petitioner told Jefferson that he did not want to talk to him and initialed the box on the
form indicating that he did not wish to make a statement. Jefferson immediately ceased
further interrogation and left the room, but he did not tell Sgt. McMullin or Detective
Sneid that he had read petitioner the Miranda warnings or that petitioner had asserted
his right to remain silent. Three hours later, at about 6:50 p.m., McMullin and Sneid
approached petitioner, read him the Miranda warnings again and resumed questioning
him about the robberies. This time petitioner agreed to talk and admitted that he had
committed both robberies and that he had used a gun during each robbery. He also
made a tape-recorded statement.

       Petitioner was charged with two counts of first degree burglary and two counts
of armed criminal action. Pre-trial motions to suppress were denied, and the taped
confession was admitted into evidence and played for the jury. Petitioner testified in
his own defense at trial. He admitted his involvement in the robberies but testified that
the robberies had been “set up” by one of the restaurant employees and therefore were
not really robberies. The jury found petitioner guilty on all four counts. The state trial
court sentenced petitioner as a “prior and persistent offender” to a total of 25 years
imprisonment. His conviction and sentence and the denial of of post-conviction relief


      3
          Miranda v. Arizona, 384 U.S. 436 (1966).


                                           -3-
were affirmed on direct appeal. State v. Brown, 840 S.W.2d 247 (order) (decided
under former procedure in which direct appeal and post-conviction relief proceeded
separately but simultaneously and then were consolidated for purposes of appellate
review).

       In January 1996 petitioner filed this habeas petition in federal district court. As
noted by the district court, the Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214, does not apply to this case because it was filed
before April 24, 1996, the effective date of the Act. See memorandum and order at 2.
Petitioner raised three grounds for relief: (1) violation of his Fifth Amendment right to
remain silent (interrogation about the same crimes following his assertion of right to
remain silent), (2) ineffective assistance of trial counsel (for failing to investigate his
allegation that police officers physically coerced his confession by beating him), and
(3) ineffective assistance of appellate counsel (for failing to argue on appeal that
petitioner’s sentence was improperly enhanced based on a 1981 Federal Youth
Corrections Act (FYCA) conviction).

       The district court found that there was no violation of petitioner’s right to remain
silent and that his confession was admissible because the police stopped the first
interrogation once petitioner invoked his right to remain silent and interrogation only
resumed after the passage of a “significant period of time” (three hours later) and after
a “fresh” set of Miranda warnings, and, even though the second interrogation involved
the same crime or crimes, there was “no effort to wear down [petitioner’s] resistance”
and the police did not recontact petitioner “with the sole purpose of inducing him to
abandon his earlier assertion of Miranda rights.” See id. at 5, citing Michigan v.
Mosley, 423 U.S. 96, 104-06 (1975), and Hatley v. Lockhart, 990 F.2d 1070, 1074 (8th
Cir. 1993) (citations omitted). The district court also found no ineffective assistance
of either trial or appellate counsel. See id. at 5-9 (finding trial counsel did investigate
petitioner’s medical records but concluded that there was not a sufficient factual basis
for the physical coercion claim and that in any event such a claim was inconsistent with

                                           -4-
the theory of defense that the robberies were “inside jobs” and that appellate counsel
could not have raised the FYCA issue on direct appeal because it had not been objected
to at trial or in the motion for new trial or shown to have been set aside pursuant to 18
U.S.C. § 5021). The district court granted a certificate of appealability limited to
ground I (the right to remain silent ground). This appeal followed.

                                    DISCUSSION

       We review the district court’s conclusions of law de novo and the factual
findings for clear error. See, e.g., Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.
1988) (en banc), cert. denied, 490 U.S. 1040 (1989). The state courts’ factual findings
are entitled to a presumption of correctness. See, e.g., Sumner v. Mata, 449 U.S. 539,
545 (1981); Jones v. Jones, 938 F.2d 838, 843 (8th Cir. 1991) (applying presumption
of correctness to findings made after complete review of transcript and evidenced in
written appellate opinion).

       Petitioner argues that the district court erred in finding that the police did not
obtain his confession in violation of his Fifth Amendment right to remain silent.
Petitioner argues that the police did not “scrupulously honor” his assertion of the right
to remain silent. He argues instead that the police ignored his assertion of the right to
remain silent and his repeated requests for an attorney and physically coerced his
confession by beating him.4 He specifically argues that the second interrogation was


      4
        The district court considered this claim only in terms of the right to remain
silent. In his brief filed in the state court of appeals, petitioner argued that his
confession was unconstitutional because the police ignored his earlier assertion of the
right to remain silent. He did not argue that the police ignored his request for an
attorney or physically coerced him. See Brief for Appellant at 9-12 (filed in State v.
Brown, 840 S.W.2d 247 (Mo. Ct. App. 1992) (per curiam) (order) (Resp. Exh. E-1 in
Brown .v Caspari, No. 4:93-CV-1955-JCH (FRB) (E.D. Mo. Dec. 12, 1994) (order
dismissing habeas petition without prejudice)). The state court of appeals noted that

                                          -5-
unconstitutional because it involved the same subject matter discussed during the first
interrogation. Michigan v. Mosley is the key case involving continued questioning after
an initial refusal to answer questions. Petitioner distinguishes Michigan v. Mosley on
the ground that in that case the second interrogation involved a different crime,
whereas, here, the second interrogation involved the same crime or crimes. We
disagree.

             “The admissibility of statements obtained after a person in custody
      has decided to remain silent depends on whether his [or her] right to cut
      off questioning has been ‘scrupulously honored.’” In [Michigan v.]
      Mosley, the Supreme Court relied on three factors to determine whether
      the police had scrupulously honored the defendant’s right of silence:
      (1) whether the police immediately ceased the interrogation upon
      defendant’s request; (2) whether they resumed questioning only after the
      passage of a significant period of time and provided a fresh set of
      Miranda warnings; and (3) whether they restricted the later interrogation
      to a crime that had not been the subject of the first interrogation.


Hatley v. Lockhart, 990 F.2d at 1073-74 (citations omitted).




Jefferson and Sneid testified that they “did not threaten, physically abuse or in any way
mistreat [petitioner] to coerce him to waive his Miranda rights.” State v. Brown, 840
S.W.2d 247 (memorandum opinion at 5). At the suppression hearing and at trial Sneid
testified that, when he left the interview room briefly to get a tape recorder, petitioner
had already confessed to committing the robberies and, when he returned, he did not
see any signs or indication that anyone had abused or mistreated petitioner. State v.
Brown, No. 591181 (Mo. Cir. Ct. County of St. Louis Sept. 11, 1989) (transcript of
suppression hearing at 31) (Resp. Exh. A in Brown v. Caspari, No. 4:93-CV-1955-JCH
(FRB)); id. (Sept. 12, 1989) (transcript of trial at 229-30) (Resp. Exh. A (vol. I) in
Brown v. Caspari, No. 4:93-CV-1955-JCH (FRB)).

                                           -6-
       Applying the Michigan v. Mosley factors, we hold the second interrogation did
not violate petitioner’s Fifth Amendment right to remain silent. First, it is not disputed
that the police immediately ceased the interrogation after petitioner invoked his right
to remain silent. Second, the police resumed questioning petitioner slightly more than
three hours later, an interval which the Supreme Court characterized as a “significant
period of time” in Michigan v. Mosley, 423 U.S. at 106, and only after providing him
a fresh set of Miranda warnings. What is in dispute is the third Mosley factor because
the second interrogation involved the same crime or crimes and not a different crime
as was the case in Michigan v. Mosley. However, the state argues correctly that this
court has repeatedly held that “a second interrogation is not rendered unconstitutional
simply because it involves the same subject matter discussed during the first interview.”
United States v. House, 939 F.2d 659, 662 (8th Cir. 1991).

       Hatley v. Lockhart, 990 F.2d at 1073-74, involved facts similar to those in the
present case. In that case the police arrested the defendant at 4:00 a.m. and read him
the Miranda warnings. The defendant told the police that he did not wish to say
anything. The police immediately terminated their questioning and took the defendant
to a cell. Two hours later, at about 6:00 a.m., the police took the defendant out of his
cell for certain tests. Another police officer, who had been told only that the defendant
“might not talk,” identified himself to the defendant, told the defendant that he was “in
a lot of trouble,” and then asked the defendant if he “wanted to tell [him] about it.”
The defendant agreed to talk and, after Miranda warnings, made an incriminating
statement. “With respect to the first [Michigan v.] Mosley factor, the police
immediately ceased the interrogation upon [the defendant’s] request.” Id. at 1074.
“Under the second [Michigan v.] Mosley factor, . . . the police resumed questioning
after the passage of a significant period of time and after providing fresh Miranda
warnings.” Id. However, the second interrogation involved the same subject matter
discussed during the first interrogation. See id. The court held that the fact that the
second interrogation involved the same subject matter as the first did not mean that the
second interrogation was unconstitutional. See id. The surrounding circumstances

                                           -7-
indicated that the police had “scrupulously honored” the defendant’s right to remain
silent. See id. The court noted there was no effort to wear down the defendant’s
resistance and the police had not recontacted him with the sole purpose of inducing him
to abandon his earlier assertion of his Miranda rights. See id.

        In the present case, as in Hatley v. Lockhart, the fact that the second
interrogation involved the same subject matter as the first interrogation did not mean
that the second interrogation was unconstitutional. The circumstances surrounding the
first and second interrogations support the findings of the state courts and the district
court that the police “scrupulously honored” petitioner’s right to remain silent. There
was no showing of repeated efforts by police to wear down petitioner’s resistance or
to induce him to abandon his earlier assertion of his right to remain silent. The first
interrogation ceased immediately after petitioner asserted his right to remain silent; the
second interrogation resumed three hours later, after another set of Miranda warnings,
and was conducted by officers who did not know that petitioner had earlier asserted his
right to remain silent. See United States v. McClinton, 982 F.2d 278, 282 (8th Cir.
1993) (holding fact that second interviewer was unaware of defendant’s refusal to talk
in first interview supported inference that no Fifth Amendment violation).

       In sum, we hold that the fact that the second interrogation concerned the same
subject matter as the first interrogation did not violate petitioner’s Fifth Amendment
right to remain silent. Accordingly, the judgment of the district court is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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