           Case: 11-14343   Date Filed: 04/08/2013   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 11-14343
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:09-cv-01877-RDP-PWG



CHRISTOPHER JORDAN JACKSON,

                                                          Petitioner-Appellant,

                                  versus

WARDEN,
THE ATTORNEY GENERAL OF
THE STATE OF ALABAMA,

                                                      Respondents-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________

                             (April 8, 2013)

Before HULL, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
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      Christopher Jordan Jackson, an Alabama prisoner serving a life sentence

without parole for attempted murder, appeals the district court’s denial of his 28

U.S.C. § 2254 federal habeas corpus petition. In his petition, Jackson alleged that

Lieutenant Tony Richardson brought him to the Jefferson County Sheriff’s

Department for questioning about an attempted murder. According to Jackson,

after he requested a lawyer, Richardson told him that the interrogation had ended,

shut off the audio recorder, and left Jackson alone in the interrogation room for an

hour. Unbeknownst to Jackson, Richardson recorded incriminating cell phone

conversations that Jackson made on a cell phone while alone. Jackson argued,

inter alia, that the state trial court’s ruling that these cell phone conversations were

admissible contravened Miranda v. Arizona, 384 U.S. 436 (1966), and other

Supreme Court cases.

      We granted a certificate of appealability on the following issue:

      Whether Jackson’s rights under Miranda v. Arizona, 384 U.S. 436 . . .
      (1966), were violated when, after he was read his Miranda rights and
      invoked his right to counsel, and a detective indicated that questioning had
      ceased, devices continued to record statements that Jackson made while
      talking on a cellphone?

On appeal, Jackson argues that, after he invoked his right to counsel, Lieutenant

Richardson performed the functional equivalent of interrogation by recording his

cell phone conversations in violation of Miranda. After careful review, we affirm.




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      We review a district court’s denial of a habeas petition under § 2254(d) de

novo. Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998). Relevant here, §

2254(d) provides that a federal court may not grant habeas relief on claims that

were previously adjudicated in state court, unless the state court’s adjudication

resulted in a decision that involved an unreasonable application of clearly

established Supreme Court law. 28 U.S.C. § 2254(d)(1). The “unreasonable

application” clause within § 2254(d)(1) permits federal habeas relief if the state

court correctly identified, but unreasonably applied, the governing legal principle

from Supreme Court precedent to the facts of petitioner’s case. Borden v. Allen,

646 F.3d 785, 817 (11th Cir. 2011), cert. denied, 132 S.Ct. 1910 (2012). For a

state court’s application of Supreme Court precedent to be deemed “unreasonable,”

the state court’s adjudication cannot merely be “incorrect or erroneous;” it must

have been “objectively unreasonable.” Id. “A state court’s determination that a

claim lacks merit precludes habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s decision.” Id. (quotations omitted).

      The Fifth Amendment provides that “[n]o person . . . shall be compelled in

any criminal case to be a witness against himself.” U.S. Const. amend. V. In

Miranda, the Supreme Court held that the government “may not use statements,

whether exculpatory or inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural safeguards effective to


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secure the privilege against self-incrimination.” 384 U.S. at 444. As part of these

procedural safeguards, the government must inform the defendant that he has the

right to consult with a lawyer and have a lawyer present with him during

interrogation. Id. at 467-73. Once the accused invokes his right to counsel,

authorities may not subject him to further interrogation until counsel has been

made available to him, unless the accused himself initiates further communication

with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).

      Interrogation occurs “whenever a person in custody is subjected to either

express questioning or its functional equivalent,” which refers to words or actions

that the police should know are reasonably likely to elicit an incriminating

response. Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980). In Innis, a suspect

was arrested for murder with a shotgun and invoked his Sixth Amendment right to

counsel. Id. at 293-94. While officers drove the suspect to the police station, one

of the officers told another officer that a school for handicapped children was

located near the scene of the murder and that, “God forbid one of [the children]

might find a weapon with shells and they might hurt themselves.” Id. at 294-95.

The suspect then told the officers that he wanted to show them where the gun was

located. Id. at 295. The Supreme Court held that the officers’ conversation did not

constitute interrogation because the officers should not have known that their

conversation was reasonably likely to elicit an incriminating response. Id. at 303.


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          Moreover, the Supreme Court has held that officers do not interrogate a

suspect simply by hoping he will incriminate himself. Arizona v. Mauro, 481 U.S.

520, 529 (1987) (holding that no interrogation occurred when officers were merely

silent third parties to a conversation between the accused and his wife). Similarly,

“[p]loys to mislead a suspect or lull him into a false sense of security that do not

rise to the level of compulsion or coercion to speak are not within Miranda’s

concerns.” Illinois v. Perkins, 496 U.S. 292, 297-98 (1990) (upholding inmate’s

confession to an undercover agent posing as cellmate in response to agent’s inquiry

whether inmate had ever killed anyone). The Supreme Court has said that if “the

suspect does not know that he is speaking to a government agent there is no reason

to assume the possibility that the suspect might feel coerced.” Id. at 299.

          In this case, there is no dispute that Jackson properly invoked his right to

counsel and that any interrogation that followed thus violated his Fifth Amendment

rights.      Edwards, 451 U.S. at 484-85.         The issue is whether Lieutenant

Richardson’s recording of Jackson’s cell phone conversations amounted to

interrogation. We hold, on this record, the Alabama Court of Criminal Appeals’s

implicit conclusion that this situation did not constitute interrogation was not an

unreasonable application of clearly established Supreme Court law. See 28 U.S.C.

§ 2254(d)(1). Indeed, Jackson cites no Supreme Court case holding that a factual

situation similar to his constituted interrogation. Although he argues that his case


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is analogous to United States v. Terzado-Madruga, 897 F.2d 1099, 1110 (11th Cir.

1990) (holding that the government violated a defendant’s Sixth Amendment rights

by recording conversations between the defendant and an undercover informant),

we ask on federal habeas review whether a state court reasonably applied Supreme

Court precedent. Parker v. Matthews, 132 S.Ct. 2148, 2155 (2012) (explaining

that circuit precedent “cannot form the basis for habeas relief under AEDPA”).

      In any event, the Supreme Court has said that ploys to lull a suspect into a

false sense of security that do not rise to the level of “compulsion or coercion to

speak” do not violate Miranda. Perkins, 496 U.S. at 297. While Lieutenant

Richardson’s statement that questioning had ceased might have led Jackson to

believe that he was not being listened to, it cannot be said that the government

compelled or coerced him into making the calls. As we see it, Richardson’s

actions were no more likely to lead to an incriminating response than were the

actions of the officers in Innis, who worried in the presence of the accused that, if

they did not find the murder weapon, children at a handicapped school could be

harmed. Innis, 446 U.S. at 294-95. Therefore, we cannot say that the Alabama

Court of Criminal Appeals’s conclusion that Richardson did not interrogate

Jackson by recording his cell phone conversations was unreasonable under

Supreme Court precedent. Accordingly, we affirm.

      AFFIRMED.


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