                                                          [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT           FILED
                  ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                          No. 11-11159                   DECEMBER 27, 2011
                      Non-Argument Calendar                  JOHN LEY
                    ________________________                  CLERK

             D.C. Docket No. 3:08-cv-00076-TJC-JRK



CARLTON LUMPKINS,

                                                           Petitioner-Appellant,


                               versus


SECRETARY DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                        llllllllllllllllllllllllllllllllllllllRespondents-Appellees.

                    ________________________

            Appeal from the United States District Court
                for the Middle District of Florida
                  ________________________

                       (December 27, 2011)
Before CARNES, HULL and FAY, Circuit Judges.

PER CURIAM:

      Carlton Lumpkins, a Florida prisoner proceeding pro se, appeals the district

court’s denial of his habeas petition under 28 U.S.C. § 2254. After review, we

affirm.

                                I. BACKGROUND

      Petitioner Lumpkins had a brother, Marvin Lumpkins, who was murdered

on September 19, 2002. A week later, allegedly in retaliation for Marvin’s

murder, a drive-by shooting killed Johnnie Gatlin, Deon Kirkland, and Christopher

Kirkland (the “Gatlin–Kirkland murders”). On October 4, 2002, Petitioner

Lumpkins confessed to his involvement in the Gatlin–Kirkland murders.

      In the state court trial in 2005, the State introduced Lumpkins’s confession,

along with other evidence. The State also introduced a videotaped confession of

Lumpkins’s codefendant, Maurice Silas, who also testified and identified himself

and Lumpkins as the gunmen in the drive-by shooting. The jury convicted

Lumpkins, who is now serving a life sentence on his three murder convictions.

      In 2008, Lumpkins filed this § 2254 petition asserting, inter alia, that his

confession was obtained in violation of his Fifth and Fourteenth Amendment

rights and that his state murder convictions should be vacated. Because the sole

                                          2
issue before us involves Lumpkins’s confession, we detail the evidence and the

state trial court’s findings about his confession.

   II. SUPPRESSION HEARING BEFORE THE STATE TRIAL COURT

       Before trial, Lumpkins moved to suppress his confession.1 At a two-day

suppression hearing, the State submitted the following testimony and evidence. In

an October 2, 2002 videotaped statement to the police, Maurice Silas confessed to

the September 29, 2002 Gatlin–Kirkland murders. On the videotape, Silas stated

that Petitioner Lumpkins was the other shooter and Latroy Bouknight was the

driver of the vehicle used in this drive-by shooting.

       On October 3, 2002, Sheriff’s Detective Guy Weber was on patrol in an

unmarked car. Detective Weber was instructed to locate Lumpkins and ask if

Lumpkins would come voluntarily to the sheriff’s office. Weber was instructed

not to arrest Lumpkins and not to force Lumpkins to come to the sheriff’s office.

Weber and his partner drove around looking for Lumpkins and located his vehicle.

Weber began following the vehicle with the intention of calling for a marked

police vehicle to conduct a traffic stop, but Lumpkins’s vehicle eventually pulled

to the side of the road and stopped without Weber’s initiating a traffic stop.


       1
         Lumpkins filed both an original and an amended motion to suppress. The state trial
court considered both motions. For purposes of this § 2254 petition, we consider the motions
together and refer to them as a single motion to suppress.

                                               3
      Sheriff’s Detective Weber approached the vehicle, where Lumpkins sat in

the passenger seat. A woman named Gabrielle Solomon was the driver.

Lumpkins voluntarily agreed to accompany Weber to the sheriff’s office. Weber

transported Lumpkins to the sheriff’s office in his unmarked vehicle, which did

not contain a cage. Weber did not handcuff Lumpkins, did not read him his

Miranda warnings, did not ask him any questions, and did not tell him that he was

in custody. Weber and Lumpkins arrived at the sheriff’s office around 12:30 p.m.

A. First Interview About Marvin’s Murder

      Around 12:45 p.m., Detective David Meacham, a homicide detective

investigating Marvin’s murder, met Lumpkins in an interview room at the sheriff’s

office. For approximately 45 minutes, Detective Meacham and another detective

interviewed Lumpkins about Marvin’s murder. The interview was videotaped.

Meacham did not read Lumpkins his Miranda warnings because he was

interviewing Lumpkins only about his brother Marvin’s murder.

      During the interview, Lumpkins identified Marvin’s killer in a photospread

and stated that the killer was nicknamed “C.” Detective Meacham neither

believed Lumpkins was in custody nor told Lumpkins that he was in custody.

B. Second Interview About the Gatlin–Kirkland Murders

      At approximately 1:53 p.m., Detectives Shawn Coarsey and Robert Nelson,

                                        4
the lead detectives on the Gatlin–Kirkland murders, entered the interview room.

Detective Nelson read Lumpkins his Miranda rights. Lumpkins signed a form

acknowledging that he read and understood his Miranda rights.

      For about an hour and a half, Detectives Nelson and Coarsey questioned

Lumpkins about the Gatlin–Kirkland murders. The detectives then took a break to

allow Lumpkins to use the restroom. Neither officer threatened Lumpkins or

promised him anything in return for making any statements.

      After the bathroom break and around 3:30 p.m., the interview continued and

Lumpkins gave the names of several family members who were his alibi

witnesses. Detective Nelson responded that it would take time to locate the

witnesses, and Lumpkins agreed to wait while the detectives located his alibi

witnesses. The detectives left the interview room around 6:00 p.m.

      At 6:20 p.m. the detectives returned to the interview room and showed

Lumpkins Silas’s videotaped confession incriminating Lumpkins as the other

shooter. The detectives then left. At 6:50 p.m., someone brought Lumpkins food.

      At 8:00 p.m., Detective Nelson returned and continued to question

Lumpkins, who continued to deny involvement in the shooting. This second part

of the questioning about the Gatlin–Kirkland murders was videotaped. Detective

Nelson confirmed that Lumpkins had read and understood his constitutional

                                         5
rights.

          Detective Nelson then confronted Lumpkins with the discrepancies in his

alibi. During the interview, Lumpkins several times indicated that if the police

were going to arrest him, then the police should go ahead and take him on to jail

and he was “through with this.” Throughout, Lumpkins continuously talked to

Detective Nelson. When Detective Nelson got up to leave, Lumpkins said

implicitly about the murders: “It’s over with. What happened, it just happened.

I’m through with it man. I’m through with it. Take me on to jail, man.” During

the entire interview, Lumpkins never explicitly stated that he did not want to talk

to the police or that he did not want to talk to Detective Nelson. Rather, the tenor

of the overall colloquy was Detective Nelson’s saying to Lumpkins, “I know

you’re involved,” and Lumpkins’s denying involvement in the shootings and in

effect trying to call Detective Nelson’s bluff by saying just go ahead and arrest me

then if you don’t believe me.

          Between approximately 9:00 p.m. and 2:30 a.m., the detectives interviewed

other witnesses and allowed Lumpkins to sleep and use the restroom. Eventually,

Lumpkins’s sister, Dora Lumpkins Gettis, told one detective that Lumpkins had

admitted to her that he was involved in the Gatlin–Kirkland murders.

          Around 2:30 a.m., Detective Nelson and another detective returned to the

                                           6
interview room, accompanied by Gettis, because they wanted Gettis to tell

Lumpkins what she had told the detectives. According to Detective Nelson, Gettis

told Lumpkins that she had “told them what you told me,” and then Lumpkins

confessed. Gettis left the room, and there was a brief break in the questioning. At

3:40 a.m., Lumpkins confessed again on video and signed a statement. Detective

Nelson testified that he never promised Lumpkins anything in return for the

statement and never threatened Lumpkins. According to Detective Nelson,

Lumpkins was advised of his constitutional rights, and Lumpkins never stated that

he did not want to talk to the police and did not request an attorney.

C. State Trial Court Findings

      The state court denied the motion to suppress. In a subsequent written

order, the state court found that Lumpkins voluntarily agreed to accompany

Detective Weber to the sheriff’s office and arrived at the sheriff’s office around

12:30 p.m. At 1:53 p.m., after an interview about the murder of his brother, two

other detectives entered the interview room to ask Lumpkins about the

Gatlin–Kirkland murders. The detectives properly informed Lumpkins of his

Miranda rights. The state court found that Lumpkins understood his Miranda

rights, was not impaired, was not threatened or promised anything, and voluntarily

spoke with the detectives. The court found that the interview about the

                                          7
Gatlin–Kirkland murders initially lasted approximately an hour and a half.

      The state court also found that the later interview concluded at 3:40 a.m.

and that Lumpkins “was not illegally detained when he made those incriminating

statements.” Specifically, the court found that Lumpkins: (1) “had been in police

custody from 10:30 A.M. on October 3, 2002 until 3:40 A.M. on October 4, 2002

. . . , a time period of approximately seventeen (17) hours”; (2) “was attempting to

establish an alibi”; and (3) “remained at the police station voluntarily in an effort

to convince the police that he was not involved in the shootings.” The state court

further found that the police (1) summoned several of Lumpkins’s family members

to the police station; (2) did not threaten the family members; and (3) did not

attempt to influence the family members to pressure Lumpkins to confess.

      The court also found that Lumpkins: (1) “never invoked any of the rights

set-forth in his constitutional rights form”; (2) “never asked for an attorney”; and

(3) made statements to the effect that he was through and that the detectives

should take him to jail, but “he continued to talk to the detectives without

specifically telling the detectives that he had decided to terminate the

interrogation.” Based on these findings, the state court concluded that the

detectives were not required to terminate the interrogation. Finally, the court

found that Lumpkins was never threatened with the death penalty in an attempt to


                                           8
coerce a confession and that the police officers involved in the investigation had

not engaged “in any unlawful activities so as to cause [Lumpkins’s] statements to

have been made involuntarily.”

       On direct appeal, Lumpkins challenged the denial of his motion to suppress,

and Florida’s First District Court of Appeal affirmed without a written opinion.

                     III. DISTRICT COURT PROCEEDINGS

       In 2008, Lumpkins timely filed this § 2254 petition.2 His petition asserts,

inter alia, that his confession was obtained in violation of the Fifth and Fourteenth

Amendments because the detectives continued to interrogate him after he invoked

his right to remain silent. The district court denied Lumpkins’s petition with

prejudice.

       After noting that “it is difficult to ascertain at what time the interview of

[Lumpkins] became a custodial interrogation,” the district court declined to

address this custody issue. Rather, the district court concluded that, even if

Lumpkins was in custody, the state trial court reasonably found Lumpkins: (1) was

“properly given his Miranda warnings”; (2) “voluntarily elected to waive his



       2
         After his direct appeal, Lumpkins moved for relief under Rule 3.850 of the Florida
Rules of Criminal Procedure. Florida’s First District Court of Appeal denied Lumpkins’s Rule
3.850 motion on the merits in October 2007 and denied rehearing in November 2007. Thus,
Lumpkins’s § 2254 petition was timely filed in 2008.

                                              9
rights”; (3) “never made any unambiguous statements that could be construed as

an invocation of his right to cease the questioning”; and (4) voluntarily confessed,

based on the totality of the circumstances surrounding the interrogation. In

particular, the district court concluded that the state court’s determination—that

Lumpkins failed to unambiguously assert his right to remain silent—involved

neither an unreasonable application of clearly established federal law nor an

unreasonable determination of the facts in light of the evidence presented at the

state court proceedings.3

                              IV. STANDARD OF REVIEW

       We review de novo the district court’s denial of a § 2254 petition. Hall v.

Thomas, 611 F.3d 1259, 1284 (11th Cir. 2010). Under § 2254(d), a federal court

may grant habeas relief from a state court judgment only if the state court’s

decision on the merits of the issue was (1) contrary to, or an unreasonable

application of, clearly established federal law as determined by the Supreme Court

of the United States; or (2) 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).



       3
       The district court granted a certificate of appealability only as to the confession claim in
Lumpkins’s § 2254 petition.

                                                10
      “[A]n unreasonable application of federal law is different from an incorrect

application of federal law. Indeed, a federal habeas court may not issue the writ

simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or

incorrectly.” Renico v. Lett, 559 U.S. __, 130 S.Ct. 1855, 1862 (2010) (quotation

marks omitted). The Supreme Court repeatedly has admonished that “[t]he

petitioner carries the burden of proof” and that the § 2254(d)(1) standard is “a

difficult to meet” and “highly deferential standard for evaluating state-court

rulings, which demands that state-court decisions be given the benefit of the

doubt.” Cullen v. Pinholster, 563 U.S. __, 131 S. Ct. 1388, 1398 (2011)

(quotation marks omitted). Under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), codified in 28 U.S.C. § 2254, “a state prisoner seeking a

writ of habeas corpus from a federal court ‘must show that the state court’s ruling

on the claim being presented in federal court was so lacking in justification that

there was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement.’” Bobby v. Dixon, 565 U.S. __, __ S. Ct.

__, 2011 WL 5299458, No. 10-1540, slip op. at 1 (U.S. Nov. 7, 2011) (quoting

Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 786–87 (2011)). In other

words, we cannot grant relief unless Lumpkins can show that “no fairminded jurist

                                         11
could agree with that [state] court’s decision.” See id.




                                          12
                                 V. DISCUSSION

      Lumpkins argues that the state trial court’s denial of his motion to suppress

his confession was based on an unreasonable determination of the facts and

involved an unreasonable application of clearly established federal law, namely,

Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 1630 (1966), and its

progeny. Lumpkins does not dispute that he was given and understood his

Miranda rights, and he does not claim that he asked for an attorney. Rather,

Lumpkins argues that the police continued to question him despite his specific

request to terminate the interrogation. Lumpkins also argues that his confession

was involuntary because the interrogation in its entirety lasted 17 hours and the

police used his sister to “cajole” him into confessing.

      Under Miranda, the state must—prior to initiating any interrogation of a

suspect—warn the suspect in police custody of his right to remain silent and of his

right to have counsel, retained or appointed, present during interrogation.

Berghuis v. Thompkins, 560 U.S. __, 130 S. Ct. 2250, 2259–60 (2010). If, during

custodial interrogation, a suspect indicates that he wishes to remain silent, the

interrogation must cease. Miranda, 384 U.S. at 473–74, 86 S. Ct. at 1627. “[T]he

admissibility of statements obtained after the person in custody has decided to

remain silent depends under Miranda on whether his ‘right to cut off questioning’

                                          13
was ‘scrupulously honored.’” Michigan v. Mosley, 423 U.S. 96, 103–04, 96 S. Ct.

321, 326 (1975). Similarly, if an individual “states that he wants an attorney”

during a custodial interrogation, the interrogation “must cease until an attorney is

present.” Miranda, 384 U.S. at 474, 86 S. Ct. at 1628.

      On the other hand, “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, our precedents do not require the cessation of questioning.” Davis v.

United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 2355 (1994). “Rather, the

suspect must unambiguously request counsel.” Id. “If the suspect’s statement is

not an unambiguous or unequivocal request for counsel, the officers have no

obligation to stop questioning him.” Id. at 461–62, 114 S. Ct. at 2356.

      Moreover, in Berghuis, the Supreme Court applied Davis’s unambiguous

rule to a suspect’s invocation of the right to remain silent and held that a suspect

must “unambiguously” invoke his right to remain silent. 130 S. Ct. at 2260.

Because the suspect in Berghuis stated neither that he wanted to remain silent nor

that he did not want to talk to the police, the Supreme Court held that the suspect

failed unambiguously to invoke his right to remain silent. Id.

      “The inquiry as to whether a suspect’s invocation of his right to remain

                                          14
silent was ambiguous or equivocal is an objective one.” Medina v. Singletary, 59

F.3d 1095, 1101 (11th Cir. 1995). “A suspect must articulate his desire to cut off

questioning with sufficient clarity that a reasonable police officer in the

circumstances would understand the statement to be an assertion of the right to

remain silent.” Id. (quotation marks omitted). Although “an accused’s postrequest

responses to further interrogation may not be used to cast retrospective doubt on

the clarity of the initial request itself,” the request “may be characterized as

ambiguous or equivocal as a result of events preceding the request or of nuances

inherent in the request itself.” Smith v. Illinois, 469 U.S. 91, 99–100, 105 S. Ct.

490, 495 (1984). “Thus, the determination of whether a suspect’s right to cut off

questioning was scrupulously honored requires a case-by-case analysis.” Medina,

59 F.3d at 1101 (alteration and quotation marks omitted).

      Here, the state trial court’s decision—denying Lumpkins’s motion to

suppress his confession—was not an unreasonable application of clearly

established federal law or an unreasonable determination of the facts. As the state

court noted, Lumpkins never specifically told the detectives that he wanted or had

decided to terminate the interrogation. Lumpkins’s colloquy with the detectives,

when placed in context, shows that Lumpkins was indicating that if the police

were going to arrest him anyway, then they should go ahead and take him to jail

                                           15
and he was “through with this.” Given Lumpkins’s unequivocal willingness to

talk to the detectives throughout the interview, we cannot say that no “fairminded

jurist could agree” with the state court’s determination that Lumpkins never

unambiguously invoked his right to remain silent. See Dixon, 2011 WL 5299458,

No. 10-1540, slip. op. at 1.

      We also conclude that the state court’s determination that Lumpkins’s

confession was voluntary was supported by considerable evidence. As to length

of the interrogation, the state court was not unreasonable in finding that the

interview was extended in part because Lumpkins was attempting to establish his

alibi. Lumpkins identified potential alibi witnesses and agreed to wait at the

sheriff’s office while the detectives located and interviewed the potential

witnesses. The 17 hours thus included a 5 or 6 hour break while the detectives

interviewed Lumpkins’s alibi witnesses. Under these circumstances, the length of

the interrogation did not render Lumpkins’s confession involuntary.

      Additionally, the state court was not unreasonable in finding that the

detectives did not engage in any other “unlawful activities” so as to cause

Lumpkins’s statements to be involuntary. Lumpkins’s sister, Gettis, agreed to talk

to Lumpkins and to tell him that she already told the officers what he told her.

The record contains no evidence that the police officers pressured Gettis to reveal

                                         16
this information or that the police officers deployed Gettis’s information in order

to “cajole” Lumpkins into confessing. Additionally, although we can find several

cases in which courts have held that preventing a suspect from interacting with his

family may affect the voluntariness of a confession in certain circumstances,4 we

can find no case (and Lumpkins cites none) holding that, by allowing a suspect to

talk to his family, the police improperly coerced a confession. We conclude that

the state court was not unreasonable in concluding that, under the totality of the

circumstances, Lumpkins voluntarily confessed to the Gatlin–Kirkland murders

and that there was no violation of his Fifth and Fourteenth Amendment rights.

Accordingly, we affirm the district court’s denial of Lumpkins’s § 2254 petition.

       AFFIRMED.




       4
          See, e.g., Blackburn v. Alabama, 361 U.S. 199, 206, 80 S. Ct. 274, 279–80 (1960) (“A
prolonged interrogation of an accused who is ignorant of his rights and who has been cut off
from the moral support of friends and relatives is not infrequently an effective technique of
terror.”); Mincey v. Arizona, 437 U.S. 385, 401–02, 98 S. Ct. 2408, 2418 (1978) (holding that a
suspect’s statement was involuntary because the suspect “was weakened by pain and shock,
isolated from his family, friends, and legal counsel, and barely conscious, [and] his will was
simply overborne”).

                                               17
