                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 January 24, 2005

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 03-31158




Mitchell Hebert,

                                      Petitioner-Appellant,

versus


Burl Cain, Warden, Louisiana State Penitentiary,

                                      Respondent-Appellee.

                       --------------------
          Appeal from the United States District Court
              for the Western District of Louisiana
                            02-CV-1271
                       --------------------

Before HIGGINBOTHAM, SMITH, and BENAVIDES, Circuit Judges.
                                           *
FORTUNATO P. BENAVIDES, Circuit Judge:

     In this appeal, Mitchell Hebert challenges the district

court’s denial of his habeas corpus petition.    For the reasons

that follow, we affirm.

I. Background

     Petitioner-Appellant Hebert and friend Shawn Gaspard

brutally murdered Gerald Green, the manager of the Green Oaks


     *
          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that this opinion should not be published and is not precedent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.

                                  1
Lounge in Lafayette, Louisiana.    Police arrested Gaspard on

October 2, 1992, and asked his apartment-mate, Hebert, if he

would come to the police station for questioning.       During the

arrest, Gaspard’s neighbor gave police a bag of clothes she said

Gaspard gave to her.

       Around 2:30 p.m., after he explained Hebert’s Fifth

Amendment rights and had him sign a consent form, Detective Kelly

Gibson began questioning Hebert.       Hebert began by providing an

alibi, but “became visibly shaken and nervous” when asked about

the bag of clothes.    He responded by declaring, “I don’t want to

talk about it.”    Gibson asked him why he did not want to discuss

the clothes and Hebert replied, “I just don’t want to talk about

it.”    Once again, Gibson questioned Hebert on his refusal by

asking, “Why don’t you want to talk about this?”       And, again,

Hebert repeated, “I don’t want to talk about it.”       At this point,

or shortly thereafter, Gibson took Hebert’s shoes.       Gibson left

the interrogation room to brief Detective Ted Vincent on what

Hebert had said.    Vincent then began questioning Hebert.     Hebert

was once again apprised of his Miranda rights and did not tell

Vincent at any time that he did not want to speak with him.

       During questioning, Vincent “probably” mentioned that this

was a capital case and cooperation would likely spare Hebert the

death penalty if Gaspard did the actual killing.       Vincent spoke

with Hebert for almost three hours, including food and cigarette



                                   2
breaks, before Hebert began to confess.     Around 7:00 p.m.,

Hebert’s full confession was videotaped.

     On April 21, 1997, a jury in state court found Hebert guilty

of first-degree murder.     See State v. Hebert, 716 So. 2d 63, 64

(La. Ct. App. 1998).   The court sentenced Hebert to life

imprisonment without parole.     Id.   Before trial, Hebert litigated

a number of pre-trial motions, including, inter alia, a motion to

suppress his confession.    See id. at 67-68.   The Court of Appeal

of Louisiana rejected Hebert’s contention that his confession was

taken in violation of the Fifth Amendment.1     See State v. Hebert,

676 So. 2d 692, 700 (La. Ct. App. 1996).     After Hebert’s

conviction, the state appellate court reviewed this finding and

concluded it was not in error.     See Hebert, 716 So. 2d at 68.     It

affirmed Hebert’s conviction in June 1998.      Id. at 69.

     In August 1999, Hebert filed an application for post-

conviction relief, arguing, inter alia, that his Fifth Amendment

rights had been violated.    Louisiana’s 15th Judicial District

Court rejected Hebert’s application.     Subsequent appeals to the

Court of Appeal and the Louisiana Supreme Court were also denied.

     In June 2002, Hebert filed pro se habeas corpus petitions

under 28 U.S.C. § 2254 in the U.S. District Court for the Western


     1
     The Fifth Amendment reads, in relevant part: “No person . .
. shall be compelled in any criminal case to be a witness against
himself.” U.S. CONST. amend. V.


                                   3
District of Louisiana.   He asserted once again, inter alia, that

his confession was coerced.   The district court denied the

petition and Hebert filed an application for a certificate of

appealability (“COA”) with the district court on December 8,

2003.   The application was denied.   On March 30, 2003, this Court

denied Hebert’s application for a COA as to all claims except for

the Fifth Amendment issue, for which this Court granted a COA.

II. Standard of Review

     “In reviewing a ruling on the merits of a habeas claim, the

district court’s findings of fact are reviewed for clear error;

its conclusions of law, de novo.”     Schaetzle v. Cockrell, 343

F.3d 440, 443 (5th Cir. 2003).   The Antiterrorism and Effective

Death Penalty Act of 1996, 28 U.S.C. § 2254, supplies the proper

standards for reviewing the state court ruling.     See Jones v.

Dretke, 375 F.3d 352, 353-54 (5th Cir. 2004).    As to legal

issues, the statute provides that the habeas corpus petition

should not be granted unless the state court’s adjudication

“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.”    28 U.S.C.

§ 2254(d)(1).   “The state court’s application of the law must be

‘unreasonable’ in addition to being merely ‘incorrect.’”

Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000) (citing

Williams v. Taylor, 529 U.S. 362, 410 (2000)).    “Stated simply, a


                                 4
federal habeas court making the ‘unreasonable application’

inquiry should ask whether the state court’s application of

clearly established federal law was objectively unreasonable.”

Williams, 529 U.S. at 409.

     When dealing with factual issues, the habeas petition should

not be granted unless the state court’s “decision . . . 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)(2).   “[A] determination of a factual issue made by a

State court shall be presumed to be correct.   The applicant shall

have the burden of rebutting the presumption of correctness by

clear and convincing evidence.”    28 U.S.C. § 2254(e)(1); see also

Patterson v. Dretke, 370 F.3d 480, 484 (5th Cir. 2004).

Therefore, “[t]o establish that habeas relief is warranted on the

§ 2254(d)(2) ground that the state court’s decision was based on

an ‘unreasonable determination of the facts . . . ,’ a petitioner

must rebut by clear and convincing evidence the § 2254(e)(1)

presumption that a state court’s factual findings are correct.”

Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002).   In

addition, the petitioner must show that the mistaken factual

determination constituted the basis for the state court’s

decision at issue.   See Wiggins v. Smith, 539 U.S. 510, 551-52

(2003) (Scalia, J., dissenting).

III. Discussion


                                   5
     Hebert’s Fifth Amendment claim is governed by the Supreme

Court’s interpretation of Miranda v. Arizona, 384 U.S. 436

(1966), in Michigan v. Mosley, 423 U.S. 96 (1975).      The Miranda

Court stated that if the person being interrogated “indicates in

any manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease.”    384 U.S.

at 473-74.   The Mosley Court developed the contours of this

right, holding “that the 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’ was

‘scrupulously honored.’”   423 U.S. at 104.

     Rather than issuing a bright-line rule for determining when

police were scrupulous in honoring suspects’ rights, the Court

examined a number of operative facts, all present in Mosley.      See

id. at 104-06.   The Court indicated that it found four factors

particularly probative: (1) whether police immediately ceased

initial interrogation upon the suspect’s request; (2) whether

questioning was resumed after a “significant period of time,”

e.g., “an interval of more than two hours”; (3) whether a “fresh

set of warnings” was provided; and (4) whether the topic of the

second interrogation was a different crime.   See id. at 105-06.

We have read Mosley to include a fifth factor, implicit in the

third, that “the suspect was advised prior to initial

interrogation that he was under no obligation to answer


                                 6
question[s].”2   United States v. Alvarado-Saldivar, 62 F.3d 697,

699 (5th Cir. 1995).

     It does not appear that any single factor is dispositive,

though.   See, e.g., Kelly v. Lynaugh, 862 F.2d 1126, 1131 (5th

Cir. 1988) (stating that “it is not decisive that the

interrogations covered the same crime”).   Rather, a case-by-case

analysis of police conduct is required, Wilcher v. Hargett, 978

F.2d 872, 877 (5th Cir. 1992), although this can sometimes

“produce opposite results in cases that are similar in some

respects.”   Charles v. Smith, 894 F.2d 718, 726 (5th Cir. 1990).

              A. Unreasonable Determination of Facts

     Bearing in mind the factual issues found probative by the

Mosley Court, we examine the trial court’s findings of fact to

determine whether any constitute an “unreasonable determination .

. . in light of the evidence.”   28 U.S.C. § 2254(d)(2).   Hebert

argues that the state court unreasonably found facts that allowed

it to conclude that “the second interrogation was initiated by

Detective Vincent approximately one to one and one-half hours

after defendant told Detective Gibson he did not want to talk

     2
      As Mosley does not do so explicitly, different courts have
enunciated different factors when reading the Court’s opinion.
See, e.g., Anderson v. Calderon, 232 F.3d 1053, 1066 (9th Cir.
2000) (finding five factors, including “[a] different officer
resumed the questioning”); Evans v. Rogerson, 77 F. Supp. 2d
1014, 1031 (S.D. Iowa 1999) (identifying nine factors cited by
the Mosley Court); People v. Fleming, 431 N.E.2d 16, 18 (Ill.
App. Ct. 1981) (noting only three factors as central to the
Mosley analysis).

                                 7
about the shopping bag full of new clothes.”       State v. Hebert,

676 So. 2d at 692, 699 (La. Ct. App. 1996).       We agree that this

is clearly in error.    The record does not show such a significant

time lapse between interrogations.

     However, in order to grant a habeas petition on the grounds

of an unreasonable factual determination, it must be shown that

this error constituted the basis for the court’s decision.       28

U.S.C. § 2254(d)(2) (requiring that the state court’s decision

was “based on an unreasonable determination of the facts”

(emphasis added)).     A reading of the Court of Appeal of

Louisiana decision finding no Miranda violation shows that the

court did not base its decision on its clearly erroneous factual

conclusion.   See Hebert, 676 So. 2d at 699-700.

     When analyzing Hebert’s Mosley claim, the court acknowledged

that one of the “[o]ther” Mosley factors to be considered is “the

time delay between the original request and subsequent

interrogation.”   Id. at 699 (internal quotations omitted) (citing

State v. Brooks, 505 So. 2d 714, 722 (La. 1987); State v. Harper,

430 So. 2d 627, 633 (La. 1983)).       However, the court stressed

that the central inquiry hinges “‘on the totality of the

circumstances involved under the particular facts of each case.’”

Id. (citing Brooks, 505 So. 2d at 722).       And, although the court

stated in its recitation of the facts that “approximately one to

one and one-half hours” passed between the two interrogations, at


                                   8
no point did it indicate that this factor proved dispositive.

See id. at 699.   Indeed, the issue of time is never mentioned in

the analytic portion of the Mosley discussion.   See id. at 700.

Further, the court relied on cases applying Mosley that did not

feature significant time intervals between interrogations.    See

id. (discussing facts of State v. Daniel, 378 So. 2d 1361 (La.

1979), and State v. Taylor, 490 So. 2d 459 (La. Ct. App. 1986)).

     When applying facts to law to find no violation of Mosley’s

“scrupulously honoring” dictate, the state court focused on the

voluntariness of the confession, the lack of “browbeating,” and

the reiterations of Hebert’s Miranda rights:

     In the present case, it is apparent that Detective
     Vincent was not browbeating Hebert hoping to wear him
     down to get him to confess; instead, it appears that the
     detective first wanted to inform Hebert what evidence he
     had indicating that he and Gaspard may have been involved
     in the robbery and murder.      Since Hebert was again
     informed of his Miranda rights, and the detective went
     over the rights form Hebert signed previously with
     Detective Gibson, Hebert’s decision to change his mind
     and again waive his rights and speak with Detective
     Vincent was voluntary and intelligent and not the product
     of police misconduct.

Hebert, 676 So. 2d at 700.   Clearly, the time interval between

Hebert’s refusal to talk and Vincent’s subsequent interrogation

was not considered as a significant factor by the state court

when it performed its Mosley analysis.   Therefore, the clearly

erroneous finding of fact did not provide the basis for the

court’s decision.   Accordingly, we deny Hebert’s habeas petition


                                 9
under 28 U.S.C. § 2254(d)(2).

                 B. Unreasonable Application of Law

       Hebert also asks us to grant the habeas petition under 28

U.S.C. § 2254(d)(1) because of an unreasonable application of

law.    We look at the state court’s decision to see if it

unreasonably applied Mosley to the facts of Hebert’s case.         See

Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000).

       The Mosley factors do not provide a clear outcome based on

the facts of this case.    The record does give us pause in that a

reasonable court could have concluded that Hebert’s rights were

in fact violated.    “However, ‘an unreasonable application of

federal law is different from an incorrect application of federal

law.’”    Morrow v. Dretke, 367 F.3d 309, 313 (5th Cir. 2004)

(citing Williams v. Taylor, 529 U.S. 362, 410 (2000)) (emphasis

in original).    As the above review of the Louisiana opinion

showed, the state court did consider the Mosley factors,

apparently reasoning that the specific facts of this case, in

particular the repeated Miranda warnings and patent lack of

actual coercion, satisfied the Supreme Court’s guidelines,

regardless of the time interval.      We are not persuaded that the

state court’s finding, based on an application of the holistic,

case-by-case Mosley test, is objectively unreasonable.       See

Williams, 529 U.S. at 409.    We thus deny Hebert’s habeas petition

under 28 U.S.C. § 2254(d)(1).

                                 10
     For the foregoing reasons, we AFFIRM the decision of the

district court.




                               11
