18-2227
Schumaker v. Kirkpatrick

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of June, two thousand twenty.

Present:        ROSEMARY S. POOLER,
                REENA RAGGI,
                WILLIAM J. NARDINI,
                            Circuit Judges.

_____________________________________________________

DYLAN SCHUMAKER,

                                  Petitioner-Appellant,
                           v.                                                            18-2227

MICHAEL KIRKPATRICK, SUPERINTENDENT,

                                  Respondent-Appellee.


Appearing for Appellant:          Randall D. Unger, Kew Gardens, N.Y.

Appearing for Appellee:           David A. Heraty, Assistant District Attorney (Donna A. Milling,
                                  Assistant District Attorney, on the brief), for John J. Flynn, District
                                  Attorney for Erie County, Buffalo, N.Y.

Appeal from the United States District Court for the Western District of New York (Telesca, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment be and it hereby is AFFIRMED.

        Petitioner-Appellant Dylan Schumaker appeals from the June 29, 2018 judgment of the
United States District Court for the Western District of New York (Telesca, J.) dismissing his
pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

       In his petition, Schumaker challenges the constitutionality of the January 10, 2014
judgment entered in the Supreme Court, State of New York, Erie County, convicting him of
murder in the second degree, in violation of N.Y. Penal Code § 125.25(1), following a jury trial,
and sentencing him to an indeterminate term of imprisonment of 25 years to life, which was
subsequently reduced on direct appeal to the Fourth Department, Appellate Division (“Appellate
Division”) to 18 years to life. We later granted a certificate of appealability with respect to the
two issues presented on this appeal: (1) whether Schumaker’s statements to police were
voluntary under the totality of the circumstances, and (2) whether the state courts decided that
claim on the merits for purposes of 28 U.S.C. § 2254(d) deference. We first address the issue of
deference and then turn to voluntariness.

       I.      Section 2254(d) Deference

        Under 28 U.S.C. § 2254(d)(1), we apply a deferential standard of review if the state court
has adjudicated petitioner’s claims on the merits. Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir.
2003). To determine whether a state court has disposed of a claim on the merits, we consider:
“(1) what the state courts have done in similar cases; (2) whether the history of the case suggests
that the state court was aware of any ground for not adjudicating the case on the merits; and (3)
whether the state court’s opinion suggests reliance upon procedural grounds rather than a
determination on the merits.” Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001) (internal
quotation marks and citation omitted).

        Neither party disputes that the Appellate Division’s opinion failed to address
Schumaker’s voluntariness claim. The Appellate Division considered Schumaker’s argument that
the investigators should have elicited a second Miranda waiver from him, finding that argument
unpreserved and substantively without merit. However, the Appellate Division never addressed
Schumaker’s contention that, under the totality of the circumstances and in light of his youth, his
statements were involuntary. Nor did the opinion contain a catch-all statement rejecting any
remaining claims as meritless. See Jimenez v. Walker, 458 F.3d 130, 145-46 (2d Cir. 2006).

       It also does not appear that the Appellate Division was aware of any procedural ground
upon which to dispose of the voluntariness claim without reaching the merits. In contrast with
the Miranda warning issue, there was no basis to find that the voluntariness claim was
unpreserved in the trial court, as it was litigated at the hearing on the motion to suppress. We
recognize that “when a state court denies a claim that was squarely presented, there is a strong
presumption that the denial is ‘on the merits,’” Golb v. Attorney General of the State of New
York, 870 F.3d 89, 97 (2d Cir. 2017), and that this presumption “is a strong one that may be




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rebutted only in unusual circumstances,” Johnson v. Williams, 568 U.S. 289, 302 (2013). We
need not pursue the point because the voluntariness claim fails even de novo review.

       II.     Voluntariness of Statements

        “A determination as to the voluntariness of a confession requires an inquiry into all the
circumstances surrounding the law enforcement officials’ conduct to ascertain whether it
overcame the accused’s will to resist and brought about a confession that was not freely self-
determined.” Campaneria v. Reid, 891 F.2d 1014, 1019-20 (2d Cir. 1989) (citations omitted). In
making this determination, we consider “the accused’s age, his lack of education or low
intelligence, the failure to give Miranda warnings, the length of detention, the nature of the
interrogation, and any use of physical punishment.” Id. at 1020.

        Schumaker argues that the following circumstances, taken together, render his statements
involuntary: (1) he was sixteen years of age at the time, with a ninth grade education; (2) he was
interviewed by police while separated from his mother and without his cell phone; (3) he was
tricked by repeated assurances from police who used “effective police ploys to induce a young
and vulnerable suspect to confess,” Appellant’s Br. at 25; and (4) he was in custody for nearly
seven hours, overnight.

        While the Supreme Court has instructed that “special care” be taken when examining the
voluntariness of juveniles’ statements, see Haley v. Ohio, 332 U.S. 596, 599 (1948), age is just
one factor we consider under the totality of circumstances analysis, Fare v. Michael C., 442 U.S.
707, 725 (1979). Schumaker does not allege that he suffers from an intellectual impairment, and
the evidence does not establish his age was exploited by police. See, e.g., United States v.
Preston, 751 F.3d 1008, 1027 (9th Cir. 2014) (holding that a confession was involuntary in light
of the defendant’s intellectual impairment and the officers’ repetitive, threatening, suggestive,
and deceptive questioning).

        Significantly, the circumstances surrounding Schumaker’s interview do not show that the
police used any intimidation, coercion, deception, or physical punishment. Schumaker was
offered food, drink, and several bathroom breaks and advised of his Miranda rights. Schumaker
himself stated that he felt well treated during the interrogation and never asked for the
questioning to cease, or for an attorney. Schumaker does not allege coercive police conduct in
the form of threats, promises, or raised voices. See Colorado v. Connelly, 479 U.S. 157, 167
(1986) (holding “that coercive police activity is a necessary predicate to the finding that a
confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth
Amendment”).

        Rather, Schumaker argues that his cell phone was taken from him as a “police tactic that
increased the coercive and isolated atmosphere.” Appellant’s Br. at 26. Further, he maintains
that police practiced “the interrogation technique known as ‘minimization[,]’ a ploy that implies
to a suspect that his commission of the offense was understandable and justifiable, and that he
will be treated leniently if he confesses.” Id. at 28. The arguments fail because the record
indicates that Schumaker voluntarily gave his phone to the officers, and Schumaker’s inculpatory
statements were not made in response to that “minimization . . . ploy.” Indeed, Schumaker



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persisted in lying at that point. Instead, Schumaker’s admission was made after officers told him,
correctly, that an autopsy would reveal the victim’s injuries.

        Even assuming that Schumaker was in custody from the time police arrived at the crime
scene and through the next eight hours, that does not indicate that his confession was
involuntary. Schumaker was not physically restrained for a meaningful amount of time. When
the officers initially questioned Schumaker outside his home, his mother was present. His
stationhouse interrogation lasted just over four hours with breaks and, as noted, involved no
threats, physical abuse, or untoward promises. In sum, the record does not demonstrate that
Schumaker was “subjected to the kind of intensive interrogation over many hours or days which
would overwhelm the frightened prisoner and vitiate consent.” United States v. Arango-Correa,
851 F.2d 54, 57 (2d Cir. 1988). On these facts, we cannot conclude that law enforcement’s
conduct overcame Schumaker’s will to resist or that his confession was not freely self-
determined.

       We have considered the remainder of Schumaker’s arguments and find them to be
without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.




                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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