                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                      November 29, 2005
                                 TENTH CIRCUIT
                                                                         Clerk of Court

 SCHARAY-DRENAENA BURNETT,

               Petitioner - Appellant,                  No. 05-8037
          v.                                            D. Wyoming
 NOLA BLACKBURN, Warden,                         (D.C. No. 04-CV-13-CAB)
 Wyoming Department of Corrections
 Women’s Center; PATRICK CRANK,
 Wyoming Attorney General, State of
 Wyoming,

               Respondents - Appellees.


                           ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Scharay-Drenaena Burnett was convicted in Wyoming state court of aiding

and abetting first-degree murder. Her conviction was upheld on direct appeal to

the Wyoming Supreme Court, see Burnett v. State, 997 P.2d 1023 (Wyo. 2000),


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
and in state collateral proceedings. Her federal habeas application was denied by

the district court, which then granted a Certificate of Appealability. We affirm.

                                 BACKGROUND

      The pertinent underlying facts of this case are fully set forth in the opinion

of the Wyoming Supreme Court affirming the conviction on direct appeal, and

again in the order of the district court denying the habeas application. We repeat

them only briefly to provide background.

      On October 10, 1997, Ms. Burnett was at home with her boyfriend William

Isham when Michael Sanders came to visit. Mr. Isham became intoxicated and

apparently suicidal. He told Mr. Sanders and Ms. Burnett that he wanted to die.

Ms. Burnett filled the bathtub while Mr. Sanders fashioned a knife out of a

disposable razor, a plastic spoon, and some electrician’s tape. Mr. Isham then lay

down in the bathtub, while Ms. Burnett went into a bedroom to chant and

meditate. Shortly thereafter Ms. Burnett heard Mr. Isham repeatedly scream,

“Please, I changed my mind. I don’t want to do this. I changed my mind.”

Ms. Burnett went to the bathroom and saw that Mr. Isham was injured, but still

alive. Mr. Sanders said he needed a sharper knife and asked if she had a steak

knife. Ms. Burnett retrieved a steak knife for him and returned to the bedroom,

where she heard Mr. Isham continue to plead with Mr. Sanders. She returned to

the bathroom and saw Mr. Sanders stab Mr. Isham in the neck with the knife. She


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lit a cigarette for Mr. Sanders and stood outside the bathroom while Mr. Isham

was stabbed several more times.

      Ms. Burnett and Mr. Sanders then walked to a liquor store, purchased some

beer and snacks, and returned home where they talked until about 5:00 in the

morning. They agreed that if anyone asked they would say that Mr. Isham had

gone to get beer and marijuana but never returned. Later that morning a co-

worker of Mr. Sanders came to the home. Mr. Sanders showed him the body and

asked for help in getting rid of it. The co-worker called the police, who went to

the house that morning and found Ms. Burnett there with the body. Ms. Burnett

was taken to the police station where she waived her Miranda rights and gave a

detailed statement of the events of the previous night.

      Ms. Burnett’s counsel moved to have the statement suppressed. The

hearing on the motion was continued at defense counsel’s request pending the

results of a psychological examination. It was never rescheduled and the motion

was not pursued any further. Ms. Burnett subsequently rejected a plea offer and

proceeded to trial. She was found guilty of aiding and abetting first degree

murder and was sentenced to a life term of imprisonment.

      In her federal habeas application Ms. Burnett argues: (1) she was deprived

of effective assistance of trial counsel because her counsel (a) gave her incorrect

information, which led her to reject a favorable plea agreement, (b) failed to


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pursue and prevail on the suppression motion, (c) failed to use favorable parts of

her statement to the police once it was admitted, and (d) failed to object to the

state’s use of evidence concerning witchcraft and other “satanic” practices; (2)

she was denied due process and a fair trial when the trial court admitted the

allegedly irrelevant and prejudicial evidence about witchcraft and “satanic”

practices; and (3) she was denied effective assistance of appellate counsel

because her appellate attorney failed to investigate adequately whether trial

counsel accurately advised her about the plea offer and failed to argue cogently a

due process claim.

                                   DISCUSSION

      Because Ms. Burnett filed her federal habeas application after April 24,

1996, the effective date of the Antiterrorism and Effective Death Penalty Act, its

provisions apply. AEDPA provides that when a claim has been adjudicated on the

merits in state court, a federal court will grant habeas relief only when the

applicant establishes that the state court decision was “contrary to, or involved an

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

Supreme Court of the United States,” or “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).

             Under the “contrary to” clause, we grant relief only if the state
      court arrives at a conclusion opposite to that reached by the Supreme

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      Court on a question of law or if the state court decides a case
      differently than the Court has on a set of materially indistinguishable
      facts. Under the “unreasonable application” clause, relief is provided
      only if the state court identifies the correct governing legal principle
      from the Supreme Court’s decisions but unreasonably applies that
      principle to the facts of the prisoner’s case. Thus we may not issue a
      habeas writ simply because we conclude in our independent judgment
      that the relevant state-court decision applied clearly established
      federal law erroneously or incorrectly. Rather, that application must
      also be unreasonable.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (internal quotation

marks, brackets, and citations omitted). Moreover, “a determination of a factual

issue made by a State court shall be presumed to be correct” unless the applicant

can rebut the presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1).

      Having reviewed the briefs, record, and order of the district court, we

affirm for substantially the same reasons stated by the district court, with these

additional comments with respect to Ms. Burnett’s claim that she received

ineffective assistance of counsel when her attorney failed to pursue a motion to

suppress the statements she made to the police the morning after the murder.

      There is some ambiguity about whether the basis for Ms. Burnett’s

suppression motion is involuntariness under the Due Process Clause or an invalid

Miranda waiver. But the result is the same regardless. To prevail on an

ineffective-assistance-of-counsel claim, Ms. Burnett must show that her

“counsel’s representation fell below an objective standard of reasonableness,”

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Strickland v. Washington, 466 U.S. 668, 688 (1984), and “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different,” id. at 694. Our review is “highly

deferential” and we “indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. at 689 (internal quotation

marks omitted). This means that Ms. Burnett must show that the suppression

motion was “meritorious and that a reasonable probability exists that the verdict

would have been different absent the excludable evidence.” Hooper v. Mullin,

314 F.3d 1162, 1176 (10th Cir. 2002).

      On appeal to this court, Ms. Burnett argues that the circumstances

surrounding her confession were “inherently coercive” because she was only 19 at

the time, had a difficult time standing up to men, was in her nightgown, had slept

little, and had not taken her medication for her mental disability. Aplt. Br. at 21.

Under the Due Process Clause a confession is involuntary “if the government’s

conduct causes the defendant’s will to be overborne and [her] capacity for self-

determination critically impaired.” United States v. McCullah, 76 F.3d 1087,

1101 (10th Cir. 1996) (internal quotation marks omitted). Under Miranda, waiver

of the right to counsel and the right to remain silent must be knowing, voluntary


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and intelligent—“voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception” and “made with

a full awareness both of the nature of the right being abandoned and the

consequences of the decision to abandon it.” United States v. Brown, 287 F.3d

965, 973 (10th Cir. 2002). Both tests require us to consider the totality of the

circumstances, including the individual characteristics of the defendant. See

McCullah, 76 F.3d at 1101; Brown, 287 F.3d at 973.

      Nothing in the record indicates that Ms. Burnett’s confession was either

coerced in violation of the Due Process Clause, or that her waiver of Miranda

rights was not knowing, voluntary, and intelligent. The transcript of her police

interview the morning after the murder reveals that she understood and

voluntarily waived her rights to counsel and to remain silent. There is no

evidence of police coercion, trickery, or psychological pressure. Her statement of

the events of the previous night is detailed and lucid, and there is no indication

that she is suffering because of a lack of sleep or because she had not taken her

medicines. The interview is lengthy, but at no point does Ms. Burnett object to

the length of the interview, to any question, or to her surroundings. There is

simply nothing in the interview or its surrounding circumstances that would have

led the district court to suppress the statements. Therefore, even if Ms. Burnett




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could establish that her counsel’s performance fell below an objective acceptable

standard, she cannot demonstrate prejudice under Strickland.




      We AFFIRM the district court’s judgment.


                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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