     Case: 11-50729     Document: 00511940235         Page: 1     Date Filed: 07/31/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                           July 31, 2012
                   No. 11-50729, consolidated with No. 11-50730
                                                                           Lyle W. Cayce
                                                                                Clerk
WILLIAM ETHRIDGE HILL,

                                                  Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent - Appellee


                  Appeals from the United States District Court
                        for the Western District of Texas
                     USDC Nos. 1:07-CV-399 & 1:07-CV-400


Before JOLLY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
        Petitioner-Appellant William Ethridge Hill seeks habeas relief from his
state court convictions, pursuant to 28 U.S.C. § 2254. The district court denied
relief. We affirm.
        In 1997, Hill was convicted by a Texas state-court jury for the murder of
William Allen and arson of the house in which Allen was living and found dead.
Before trial, Hill moved to suppress inculpatory statements he made during an
interrogation by police. Hill, Allen’s former roommate, had been taken by police


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                            Nos. 11-50729 & 11-50730

to a station to be interviewed. Forty-five minutes after being placed in the
interview room, Hill orally was advised only of some of his Miranda rights. In
particular, Hill was not told that his statements could be used against him in
court. Following three hours of interrogation, Hill admitted being at Allen’s
house the night of the fire and Allen’s death and having had a physical
altercation with Allen that night. Hill’s statement was reduced to writing. The
written statement included a complete Miranda warning. The trial court found
the first Miranda warning defective, and thus excluded Hill’s statements
following that oral warning. Nevertheless, the court found that the second
Miranda warning, in the written statement, adequately apprised Hill of his
rights. Consequently, his written statement was admitted against him.
      On appeal in the Texas courts, Hill’s convictions were affirmed and his
request for discretionary review was denied. Hill’s habeas petitions (one for each
conviction, but identical) in state court were denied, In re Hill, No. 981472-A,
981493-A (331st Dist. Ct., Travis County, Tex. Feb. 27, 2007), and on appeal
were affirmed without written order or hearing. Hill then came to the federal
courts. The district court denied Hill’s habeas petitions, concluding, inter alia,
the state court’s denial of habeas was supported by a reasonable application of
Missouri v. Seibert, 542 U.S. 600 (2004), in that the court reasonably could have
found that police did not employ a deliberate “two-step” strategy for obtaining
Hill’s confession. Hill v. Thaler, No. 1:07-cv-399-JRN, at *10-13 (W.D. Tex. July
18, 2011). This timely appeal followed.
      In reviewing requests for federal habeas relief, this court reviews the
district court’s findings of fact for clear error and its conclusions of law de novo,
“applying the same standards to the state court’s decision as did the district
court.” Wooten v. Thaler, 598 F.3d 215, 218 (5th Cir. 2010) (internal quotation
marks omitted). A petition for habeas from a state conviction is governed by the
Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254.

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                           Nos. 11-50729 & 11-50730

AEDPA prohibits federal habeas relief unless the state adjudication of the claim
either (1) “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,” or (2) “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). AEDPA
also requires the court to presume that the state court’s findings of fact are
correct “unless the petitioner rebuts that presumption by clear and convincing
evidence.” Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001) (citing 28 U.S.C.
§ 2254(e)(1)). “The presumption of correctness not only applies to the explicit
findings of fact, but it also applies to those unarticulated findings which are
necessary to the state court’s conclusions of mixed law and fact.” Id. at 948 n.11.
      A state court need not cite to, nor even be aware of, applicable Supreme
Court precedent. Early v. Packer, 537 U.S. 3, 8 (2002). Nor does this court
review the reasoning of the state court. Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002) (en banc). Rather, the court’s review is limited to the “ultimate legal
conclusion” of the state court. Id. The court is to determine “what arguments
or theories supported or . . . could have supported, the state court’s decision; and
then it must ask whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior decision
of [the Supreme] Court.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
      Hill’s primary contention is that the state court’s denial of habeas relief
was inconsistent with Seibert. He argues that his written inculpatory statement
was the result of a deliberate “two-step” strategy, whereby the interrogating
officer surreptitiously provided Hill a deficient Miranda warning, obtained an
inculpatory oral statement, and then obtained the same inculpatory statement
after a second and complete warning. Hill’s contention is unavailing. Hill points
to evidence that perhaps could be reconciled with a deliberate strategy. But far

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                           Nos. 11-50729 & 11-50730

more to the point, by clear and convincing evidence he has not overcome the
presumption of correctness owed the determinations necessary to the state
court’s denial of habeas. Moreover, the officer who gave the deficient warning
testified he did not have with him the standard Miranda warning card he
ordinarily used when giving the warning. It would not have been unreasonable
for the court to find the warning’s deficiency inadvertent. And, any argument
that the officer employed a deliberate strategy is undermined by the fact that a
partial reading of Miranda rights was given. United States v. Naranjo, 223 F.
App’x 167, 169 (3d Cir. 2007) (finding warning that defendant did not have to
speak to officers counted against deliberateness finding); United States v. Street,
472 F.3d 1298, 1314 (11th Cir. 2006) (stating “[b]ecause giving any warnings
undermines the effectiveness of the ‘question first’ tactic, the fact that some
warnings were given strongly evidences that the tactic was not being used”).
      Hill also contends that even if the deficiency in the first Miranda warning
was inadvertent, and consistent with Seibert, the second Miranda warning (on
the written statement) was insufficient under Oregon v. Elstad, 470 U.S. 298,
311 (1985) (requiring “careful and thorough” administration of Miranda
warnings when post-warning confession was preceded by a voluntary but un-
warned confession). Yet, as with his Seibert contention, Hill has not, by clear and
convincing evidence, rebutted the presumption of correctness owed the
determinations necessary to the state court’s denial of habeas, nor has he shown
that it would be an unreasonable application of Elstad to find that the second
warning given Hill was sufficient properly to advise Hill of his Miranda rights.
It is undisputed that: the written warnings included all warnings required by
Miranda; Hill acknowledged reading the warnings; he had the opportunity to
ask questions; and he agreed that he understood the warnings. Accordingly the
judgment of the district court is



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                            Nos. 11-50729 & 11-50730

                                                                      AFFIRMED.1




   1
       Dennis, Circuit Judge, concurs in the judgment.

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