                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-3383
                                    ___________

Dave Dormire,                      *
                                   *
        Appellant-Respondent,      *    Appeal from the United States
                                   *    District Court for the Eastern
  v.                               *    District of Missouri.
                                   *
Raymond Wilkinson,                 *
                                   *
        Appellee-Petitioner.       *
                                   *
                              ___________

                             Submitted: April 10, 2001
                               Filed: May 10, 2001

                                     ___________

Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and CARMAN1, Judge.
                             ___________

MURPHY, Circuit Judge.

       After the Missouri Court of Appeals affirmed his convictions for attempted
robbery, first degree assault, and two counts of armed criminal action and denied him
post conviction relief, Raymond Wilkinson filed a habeas petition in federal court. The
district court granted his petition, and the State appeals. We reverse.




      1
       The Honorable Gregory W. Carman, Chief Judge, United States Court of
International Trade, sitting by designation.
       Wilkinson was arrested in connection with four armed robberies at a rest stop
on Interstate 55 in Pemiscot County, Missouri. A suspect had been described by
victims as an African American man driving a maroon sports car. Police saw such a
car at the rest stop and learned it was registered to Wilkinson. The Pemiscot County
sheriff's office put the area under surveillance, and Deputy Sheriff Rodney Ivie spotted
Wilkinson's car and followed him as he left the area. Ivie stopped Wilkinson, arrested
him, and read him his Miranda rights. Ivie also searched the car and discovered a hand
gun under the driver seat. Ivie then transported Wilkinson to the sheriff's office.

        After Wilkinson arrived at the sheriff's office, Ivie again read him his rights from
a written form. Wilkinson read the form and stated that he understood his rights, but
he declined to sign the waiver portion of the form. Wilkinson asked Ivie if he could
call his girlfriend, and Ivie told him that he could not. Wilkinson then asked "Could I
call my lawyer?" Ivie answered "yes" to that question. Wilkinson did not say anything
further about wanting a lawyer, and Ivie asked him about the robberies. Wilkinson
initially denied any involvement, then stated that the crimes had been committed by a
couple from Arkansas to whom he had loaned his car. He finally told authorities that
he was responsible for all the robberies, and signed a written form which contained his
statements.

        At a hearing the day before trial, Wilkinson moved to suppress his statements to
Ivie on the basis that his confession had been obtained in violation of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Ivie, who was the sole witness at the
hearing, testified that he had never refused Wilkinson permission to call a lawyer, and
that he would have allowed Wilkinson to call counsel if he had asked to do so. He also
testified that he would have stopped taking Wilkinson's statement if Wilkinson had
indicated that he did not want to continue. There was no evidence that Wilkinson
requested termination of the interrogation at any time. The trial court denied the motion
to suppress, and a jury subsequently convicted Wilkinson of all four counts. He was
sentenced to four consecutive terms of fifteen years imprisonment.



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       Wilkinson filed a motion for post conviction relief under Missouri Supreme
Court Rule 29.15, but it was denied as untimely. On consolidated appeal, the Missouri
Court of Appeals affirmed his conviction, as well as the denial of his motion for post
conviction relief. See State v. Wilkinson, 861 S.W.2d 746 (Mo.Ct.App. 1993). The
state court rejected Wilkinson's contentions that he had invoked his right to counsel and
that his rights to counsel and due process of law had been violated by use of his
confession. Id. at 749. The court considered Supreme Court decisions on right to
counsel, namely Miranda v. Arizona, 384 U.S. 436 (1966), Edwards v. Arizona, 451
U.S. 477 (1981), and Smith v. Illinois, 469 U.S. 91 (1984), as well as a Missouri case
construing them, State v. Reese, 795 S.W.2d 69 (Mo.1990) (en banc). Reese had
explained that a defendant's rights under Edward and Smith "attach only if the
defendant indicates a desire for the assistance of counsel in his dealings with the
police." Id. at 749 (a position not inconsistent with the subsequently decided Davis v.
United States, 512 U.S. 452 (1994)). The Missouri Court of Appeals determined that
Wilkinson "never requested a lawyer to assist him in his dealings with the police," but
"merely asked if he could call one." Id. Because "[h]e was given th[e] opportunity [to
call an attorney] and, for reasons only known to him, declined to do so," the court
concluded that Wilkinson's confession was not taken in violation of his constitutional
rights. Id.

       Wilkinson then filed a petition in federal district court for writ of habeas corpus
under 28 U.S.C. § 2254, alleging four grounds for relief. The district court granted
relief on his claim that his conviction was obtained by use of a confession taken in
violation of his Miranda rights. It held that the state court decision correctly
recognized the clearly established Supreme Court precedent, but that it had
unreasonably applied that law. See 28 U.S.C. § 2254(d)(1). The district court cited
Edwards for the proposition that once an accused requests counsel, any interrogation
must cease until an attorney is present. Wilkinson's question "Could I call my lawyer"
was seen by the district court as an unambiguous request for counsel requiring an end
to interrogation. The court granted Wilkinson's petition and ordered that his conviction
and sentence be vacated, and the State appeals from the judgment.

                                           -3-
       Our review of Wilkinson's petition is limited by 28 U.S.C. § 2254(d)(1), which
provides that federal courts are prohibited from granting habeas relief on "any claim
that was adjudicated on the merits in State court proceedings unless the adjudication
of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States." Here, the state court correctly identified and cited the holdings of
Miranda and its progeny, and habeas relief can only be justified if the state court
decision was "unreasonable in applying the governing legal principle to the facts of the
case." Ramdass v. Angelone, 530 U.S. 156, 166 (2000).

      Miranda v. Arizona established that "a suspect subject to custodial interrogation
has the right to consult with an attorney and to have counsel present during questioning,
and that the police must explain this right to him before questioning begins." Davis v.
United States, 512 U.S. 452, 457 (1994) (citing Miranda). The Court further held in
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), that if an accused expresses his
desire to deal with the police only through counsel, he cannot be subjected to further
interrogation until a lawyer has been made available unless the suspect himself initiates
further communication with the police. In Davis, 512 U.S. at 459 (citations omitted),
the Court clarified that "[i]nvocation of the Miranda right to counsel requires, at a
minimum, some statement that can reasonably be construed to be an expression of a
desire for the assistance of an attorney." The Court held there that Davis's statement
"Maybe I should talk to a lawyer" was not a request for counsel and that investigators
were therefore not required to stop questioning him. Id. at 462. A "suspect must
unambiguously request counsel," and if he does not "articulate his desire to have
counsel present sufficiently clearly that a reasonable police officer in the circumstances
would understand the statement to be a request for an attorney . . . Edwards does not
require that the officers stop questioning the suspect." Id. at 459.

      The issue before the court is whether the Missouri state court was
"unreasonable" in applying these governing legal precedents to the facts of this case.
See Ramdass v. Angelone, 530 U.S. 156, 166 (2000). Under the governing law,
questioning may proceed unless a suspect "clearly" and "unambiguously" makes
                                        -4-
known his desire to have counsel present. Davis, 512 U.S. at 459. Wilkinson's
question was not such a clear and unambiguous request for counsel that Ivie was
required to stop his interrogation. Considering the question in context, it is not clear
that Wilkinson was actually requesting the presence of an attorney when he asked
"Could I call my lawyer?" Wilkinson had just asked whether he could contact his
girlfriend, and Ivie had informed him that he could not. Ivie could have reasonably
believed in these circumstances that Wilkinson was merely inquiring whether he had
the right to call a lawyer, rather than believing that Wilkinson was actually requesting
counsel.2 Indeed, Ivie did not prevent Wilkinson from calling an attorney, and he told
him affirmatively that he had the right to call one. Supreme Court precedent does not
require the cessation of questioning "if a suspect makes a reference to an attorney that
is ambiguous or equivocal in that a reasonable officer in light of the circumstances
would have understood only that the suspect might be invoking the right to counsel."
Davis, 512 U.S. at 459 (emphasis supplied). We conclude that the state court was not
unreasonable in determining that Wilkinson's question "Could I call my lawyer?" was
not an unambiguous request for counsel. Other courts have come to the same
conclusion when presented with similarly worded statements. See, e.g., Diaz v.
Senkowski, 76 F.3d 61,65 (2d Cir. 1996) ("I think I want a lawyer" not unequivocal
invocation of right to counsel); Lord v. Duckworth, 29 F.3d 1216, 1221 (7th Cir. 1994)
("I can't afford a lawyer but is there anyway I can get one?" not a clear request for
counsel).

        Since the state court did not unreasonably conclude that Wilkinson's reference
to an attorney was not a clear invocation of his Fifth Amendment right to counsel, we


      2
        Wilkinson argues that if Ivie found his question ambiguous, Ivie should have
clarified whether he actually wanted an attorney, citing Davis. Although Davis
acknowledges that "it will often be good police practice for the interviewing officers
to clarify whether or not [a suspect] actually wants an attorney," the Supreme Court
expressly "decline[d] to adopt a rule requiring officers to ask clarifying questions."
Davis, 512 U.S. at 461. Because Wilkinson's "statement was not an unambiguous or
unequivocal request for counsel, the officers ha[d] no obligation to stop questioning him
" or to ask clarifying questions. Id. at 461-62.
                                           -5-
reverse the judgment of the district court granting Wilkinson habeas relief. We remand
the case to the district court for the entry of judgment denying Wilkinson's petition
under 28 U.S.C. § 2254.


A true copy.

      Attest:

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




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