                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                         April 4, 2011
                     UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                  TENTH CIRCUIT                          Clerk of Court



 TIMOTHY SHAUN STEMPLE,

               Petitioner - Appellant,

 v.                                                         No. 09-5097
                                                 (D. Ct. No. 01-CV-166-GKF-PJC)
 RANDALL G. WORKMAN, Warden,                                (N.D. Okla.)
 Oklahoma State Penitentiary,

               Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before O’BRIEN, Circuit Judge, TACHA, Senior Circuit Judge, and HOLMES,
Circuit Judge.


       Timothy Shaun Stemple was sentenced to death upon his conviction for the

murder of his wife. After his conviction and sentence were affirmed on appeal,

Mr. Stemple petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The district court denied his petition but granted a certificate of appealability on

two issues involving the admission of evidence at trial. We take jurisdiction

pursuant to 28 U.S.C. § 1291 and § 2253(c) and AFFIRM.



       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                               I. BACKGROUND

      The following facts, which are not disputed here, are taken from the

opinion of the Oklahoma Court of Criminal Appeals (“OCCA”) resolving Mr.

Stemple’s direct appeal. See Stemple v. State, 994 P.2d 61 (Okla. Crim. App.

2000). In October 1996, Mrs. Stemple’s body was found near Highway 75 in

Tulsa County, Oklahoma. Her death was briefly investigated as a hit-and-run

accident, but as the investigation progressed, the Tulsa Police Department began

to suspect that Mr. Stemple had orchestrated the death of his wife. Mr. Stemple

was ultimately charged in her death with First Degree Malice Aforethought

Murder, Conspiracy to Commit First Degree Murder, and Attempted First Degree

Murder.

      At trial, the prosecution put forth evidence that Mr. Stemple was having an

extra-marital affair with Dani Wood and that he concocted a plan to murder his

wife and collect the proceeds of her life insurance policy. Sixteen year-old Terry

Hunt, Mr. Stemple’s co-defendant and Ms. Wood’s cousin, testified that Mr.

Stemple hired him to assist with the murder, promising to pay him $25,000 to

$50,000 if they collected the insurance proceeds. Mr. Hunt further testified that

he and Mr. Stemple killed Mrs. Stemple by beating her with a baseball bat

wrapped in plastic wrap and running over her numerous times with Mr. Stemple’s

pickup truck.

      Additionally, the prosecutor introduced a five-minute long videotape of an

                                       -2-
interview Tulsa police officers conducted with Mr. Stemple prior to his arrest,

during which Mr. Stemple stated that he knew “how ugly this looks for me,”

summarized the evidence which he believed the police would use against him, and

eventually invoked his right to counsel. The prosecutor also introduced a

handwritten jailhouse confession by Mr. Stemple; other jailhouse documents

created by Mr. Stemple, including a witness list; and testimony from Mr.

Stemple’s fellow inmates that he had asked them to arrange the death of several

witnesses, given them a copy of his confession, and sought their assistance in

hiring people to coerce exculpatory statements from Mr. Hunt and Ms. Wood.

Ultimately, the jury convicted Mr. Stemple on all three counts.

      During the separate penalty-phase proceeding, the jury found the existence

of two aggravating circumstances: (1) Mr. Stemple committed the murder for

remuneration or the promise of remuneration; and (2) the murder was especially

heinous, atrocious, or cruel. The jury therefore recommended that Mr. Stemple be

sentenced to death on the murder conviction. The trial court sentenced him in

accordance with the jury’s recommendations.

      On direct appeal, the OCCA affirmed Mr. Stemple’s convictions and

sentences for the murder and conspiracy charges but reversed his conviction for

attempted murder. The United States Supreme Court denied his petition for a writ

of certiorari. Stemple v. Oklahoma, 531 U.S. 905 (2000). Mr. Stemple did not

file an application for post-conviction relief in state court.

                                          -3-
      On October 1, 2001, Mr. Stemple filed a petition for a writ of habeas

corpus in the United States District Court of the Northern District of Oklahoma.

The petition raised three grounds for relief: (1) the prosecution’s failure to

disclose substantial changes in Mr. Hunt’s anticipated trial testimony; (2) the

admission of Mr. Stemple’s videotaped interview with police, along with the

prosecutor’s references to it to the jury; and (3) the admission of various jailhouse

documents and inmate testimony. The district court denied Mr. Stemple’s

petition but granted him a certificate of appealability (“COA”) on the second and

third issues. Mr. Stemple now appeals pursuant to the grant of COA, as well as

seeks a COA on the first issue.

                                  II. DISCUSSION

A.    Admission of the Videotaped Interview and Prosecutor’s Related

      Statements

      Mr. Stemple argues on appeal that the admission of his videotaped

interview with Tulsa police, and the prosecutor’s comments at trial regarding the

interview, were unconstitutional because: (1) Mr. Stemple had invoked his Sixth

Amendment right to counsel prior to making incriminating statements; and (2)

they enabled the jury to consider the invocation of his right to counsel as

substantive evidence of his guilt. The OCCA rejected this claim on the merits,

holding that Mr. Stemple did not unequivocally invoke his right to counsel until

the end of the tape, after which the officers immediately ceased questioning.

                                         -4-
Stemple, 994 P.2d at 68–70. Accordingly, under the Anti-terrorism and Effective

Death Penalty Act of 1996, Mr. Stemple is entitled to federal habeas relief only if

the OCCA’s decision was: (1) “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States”; or (2) “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).

      Pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), suspects must be

informed of certain rights whenever they are interrogated in police custody,

including the right to counsel. When a suspect knowingly and intelligently

waives his right to counsel after receiving the Miranda warnings, he may be

questioned by law enforcement. Davis v. United States, 512 U.S. 452, 457

(1994). If, however, “a suspect requests counsel at any time during the interview,

he is not subject to further questioning until a lawyer has been made available or

the suspect himself reinitiates conversation.” Id. at 457–58. Nevertheless, “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,” police are not required to

cease questioning. Id. at 459.

      As noted above, Miranda applies only when a suspect is “in custody.”

United States v. Chee, 514 F.3d 1106, 1112 (10th Cir. 2008). A suspect is in the

                                         -5-
“custody” of police when he is “deprived of his freedom of action in any

significant way or his freedom of action is curtailed to a degree associated with

formal arrest.” Id. (quotations and citations omitted). Stated another way, the

question is whether, under the totality of the circumstances, “a reasonable person

in the suspect’s position would have understood the situation as the functional

equivalent of formal arrest.” Id. (quotations and alterations omitted).

      In this case, the State contends that Miranda does not require suppression

because Mr. Stemple was not in custody at the time of the interview. We agree

and therefore conclude that the OCCA’s decision was not contrary to clearly

established federal law. This court has enumerated several factors which are

relevant to the custody determination, including whether the nature and length of

the officers’ questioning was accusatory or coercive and whether the police

informed the defendant that he was free to decline to answer the officers’

questions or that he could end the interview. See United States v. Revels, 510

F.3d 1269, 1275 (10th Cir. 2007). In addition, we consider whether the

circumstances demonstrated a police-dominated atmosphere, which turns on the

following factors:

      [S]eparation of the suspect from family or colleagues who could
      offer moral support; isolation in nonpublic questioning rooms;
      threatening presence of several officers; display of a weapon by an
      officer; physical contact with the subject; and an officer’s use of
      language or tone of voice in a manner implying that compliance with
      the request might be compelled.


                                        -6-
United States v. Jones, 523 F.3d 1235, 1240 (10th Cir. 2008) (quoting United

States v. Griffin, 7 F.3d 1512, 1518–19 (10th Cir. 1993)).

      In this case, on the morning of the videotaped interview, Tulsa police

officers arrived at Mr. Stemple’s home and told him that he “needed to come with

[them] to the Detective Division, downtown Tulsa.” Mr. Stemple rode with the

officers to the police station fifteen miles from his home. During the interview,

two plain-clothes officers questioned him. The five-minute-long video begins

with Detective Fred Parke introducing himself to Mr. Stemple and asking the

other officer present for the case file. At this point, Detective Parke told Mr.

Stemple, “You’re not under arrest or charged with anything.” Moments later, Mr.

Stemple asked, “Am I being Mirandized and arrested?” to which Detective Parke

responded, “You’re not being arrested, no.” Later, Mr. Stemple asked whether he

could selectively answer some questions and not others, and was informed that he

could. Detective Parke also clarified Mr. Stemple’s rights for him and asked,

“Under these circumstances do you want to speak to us or do you want to get an

attorney or what do you want to do?” Moments later, Mr. Stemple asked whether

he was going to be arrested and was again told, “We’re not here to arrest you.”

      Mr. Stemple maintains that he was in police custody based on several facts:

(1) the interview took place on the day of his wife’s funeral; (2) police officers

approached Mr. Stemple at his home and told him he “needed” to come with them

to the station; and (3) he rode with the officers to the police station fifteen miles

                                          -7-
from his home. The State points out that Mr. Stemple was told more than once

that he was not under arrest and that he exhibited his comfort in leaving several

minutes later when he terminated the interview and departed the police station.

      We have carefully reviewed the record, including the videotaped interview,

and conclude that Mr. Stemple was not in custody under the facts of this case.

During the interview, officers repeatedly told Mr. Stemple that he was not under

arrest. He was also asked, “Under these circumstances do you want to speak to us

or do you want to get an attorney or what do you want to do?” The majority of

the other recognized factors support the conclusion that Mr. Stemple was not in

custody: there were only two plain-clothes officers involved in the interview;

neither officer displayed a firearm or made any other show of authority; the

officers made no physical contact with Mr. Stemple; and neither officer’s

language or tone of voice implied that Mr. Stemple was required to talk to them

or remain at the police station. In total, the interview lasted under five minutes,

during which Mr. Stemple did the vast majority of the talking. Under the totality

of the circumstances, Mr. Stemple was not in police custody at the time of his

interview. The mere fact that Mr. Stemple rode to the police station with police

officers and was told that they “needed” to talk to him does not outweigh the

officers’ clear statements and the non-coercive environment in which Mr. Stemple

was questioned. See United States v. Ellison, 791 F.2d 821, 823 (10th Cir. 1986)

(“The fact that [the defendant] was driven to the United States Attorney’s office

                                         -8-
by a police officer [for questioning] did not affect his liberty to come and go as

he pleased.”). Nor do we find the fact that the interview took place on the day of

his wife’s funeral particularly instructive. Because Mr. Stemple was not in

custody, the admission of the videotaped interview and the prosecutor’s related

statements did not violate Miranda and was not error. 1

       Finally, Mr. Stemple has failed to identify any portion of the prosecutor’s

closing argument which can reasonably be considered a comment on Mr.

Stemple’s invocation of his right to counsel; therefore, we do not address that

aspect of his claim.

B.     Admission of Jailhouse Documents and Jailhouse Informants’ Testimony

       Mr. Stemple also alleges that the admission of the jailhouse documents and

the testimony of jailhouse informants resulted in a fundamentally unfair trial in

violation of the Fourteenth Amendment. Specifically, he contends that: (1) the

written jailhouse confession was coerced and is therefore inadmissible; and (2)


       1
        We note that even if we were to find that Mr. Stemple was in custody his claim
would fail. The district court correctly ruled that Mr. Stemple’s first two references to
getting an attorney were not unequivocal invocations of his right to counsel. See Davis,
512 U.S. at 461–62 (“If the suspect’s statement is not an unambiguous or unequivocal
request for counsel, the officers have no obligation to stop questioning him.”). Moreover,
it was Mr. Stemple who reinitiated conversation with the officers after the first two
references to an attorney, see Edwards v. Arizona, 451 U.S. 447, 484–85 (1981) (“[A
suspect] is not subject to further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further communication,
exchanges, or conversations with the police.” (emphasis added)), and all interrogation
ceased after he unequivocally invoked his right to counsel (i.e., his third reference to an
attorney).

                                           -9-
the testimony of the jailhouse informants is “preposterous” and it is “obscene for

courts to allow a state to execute a citizen on the strength of jailhouse snitches.”

The district court found this claim unexhausted but denied the claim on the merits

pursuant to 28 U.S.C. § 2254(b)(2).

      Under 28 U.S.C. § 2254(b)(1)(A), a habeas corpus petition may not be

granted unless the petitioner has exhausted his state court remedies regarding the

claims in the petition. See also Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir.

2006). “In order to exhaust his state remedies, a federal habeas petitioner must

have first fairly presented the substance of his federal habeas claim to state

courts.” Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). “‘Fair

presentation’ means that the petitioner has raised the ‘substance’ of the federal

claim in state court.” Bland, 459 F.3d at 1011 (quoting Picard v. Connor, 404

U.S. 270, 278 (1971)).

      Mr. Stemple’s only argument to the OCCA on direct appeal concerning the

jailhouse papers was that the documents were the protected thoughts of a client

recorded for his attorney in preparation for trial and therefore inadmissible under

the attorney-client privilege and work-product doctrine. Mr. Stemple did not

address the jailhouse informants’ testimony. Moreover, Mr. Stemple did not refer

to or cite the Fourteenth Amendment, nor did he otherwise raise the substance of

the claim he now asserts. Thus, he has failed to exhaust this claim.

      Although the district court denied this claim on the merits, see Moore v.

                                         - 10 -
Schoeman, 288 F.3d 1231, 1235 (10th Cir. 2002), we conclude it is procedurally

barred. See Cummings v. Sirmons, 506 F.3d 1211, 1222–23 (10th Cir. 2007). If

Mr. Stemple were to return to state court to exhaust this claim, the Oklahoma

courts would determine the claim was procedurally barred under Oklahoma’s

Post-Conviction Procedure Act because he did not raise it on direct appeal. Okla.

Stat. Ann. tit. 22, § 1089(C); see also Cummings v. State, 970 P.2d 188, 192

(Okla. Crim. App. 1998) (relying on § 1089(C) to deny claims for post-conviction

relief which “could have been raised on direct appeal, but were not”). Moreover,

we have previously held this procedural bar to be both independent and adequate.

See Sherrill v. Hargett, 184 F.3d 1172, 1175 (10th Cir. 1999). Thus, our review

is precluded unless Mr. Stemple “can demonstrate cause and prejudice or a

fundamental miscarriage of justice.” English v. Cody, 146 F.3d 1257, 1259 (10th

Cir. 1998) (citations omitted); see also Cummings v. Sirmons, 506 F.3d at 1223.

Mr. Stemple has offered no argument, either before us or the district court, that

either of these conditions pertains to his case. Accordingly, we conclude that his

claim is procedurally barred and affirm the district court’s denial of relief on this

claim.

                                III. CONCLUSION

         For the foregoing reasons, we AFFIRM the district court’s denial of Mr.

Stemple’s petition for a writ of habeas corpus. We DENY Mr. Stemple’s motion




                                         - 11 -
to expand COA.



                 ENTERED FOR THE COURT,



                 Deanell Reece Tacha
                 Senior Circuit Judge




                 - 12 -
