           Case: 13-14521   Date Filed: 04/10/2015   Page: 1 of 12


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-14521
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:13-cv-61317-WPD


RAYMOND PARDON, a.k.a. Peter Pardon,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 10, 2015)

Before MARCUS, WILLIAM PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Petitioner Raymond Pardon, a Florida state prisoner, appeals the district

court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We agree with the

district court that habeas relief is not warranted, and thus affirm.

                                 I. BACKGROUND

      The crime underlying this habeas petition occurred in September, 2003.

Petitioner was living with his girlfriend Michelle Madden, and the two had been

using drugs for days when they ran out of money. See Pardon v. State, 930 So. 2d

700, 701 (Fla. 4th DCA 2006). While driving around, Petitioner and Madden

spotted an elderly couple at a bus stop. Id. Madden testified that Petitioner

stopped and covered his car tag, then pulled up close to the couple and told her to

get out and grab the woman’s purse. Id. Madden got out of the car, carrying a

knife that belonged to Petitioner. Id. She tried but was unable to grab the purse,

and she slashed at both the woman and her husband as they fought to maintain

possession of it. Id. At some point, Petitioner backed the car up, helped Madden

get back in, and fled the scene. Pardon, 930 So. 2d at 701.

      Petitioner was arrested on September 19, 2003. When he was first detained,

Petitioner asked one of the officers who picked him up if he could talk to an

attorney. The officer responded that Petitioner would have to “worry about that

later.” Petitioner acknowledges that the officer did not interrogate him, and that

“there was no questioning going on” when he asked about an attorney.

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      About three hours after he was detained, Petitioner was interviewed by

Detective Lance Moore. At the beginning of the interview, Moore required

Petitioner to read a statement of his Miranda rights out loud. While reading,

Petitioner made it clear that he understood he had a right to have an attorney

present during the interview. Petitioner told Moore that he had previously asked

about an attorney but disavowed any desire to speak to an attorney at that time,

stating:

      Petitioner: [Reading rights card] And in regards to this investigation,
      have you previously asked a police officer to allow you to speak to
      any attorney? Yeah, I did that. No, I’m going to put no.

      Moore: Well, I mean, tell me. I mean, I don’t know.

      Petitioner: Well, downstairs I just briefly said to one of the fellows,
      you know, you know can I talk to my attorney. And—

      Moore: Okay. Well, let me ask you: Did you talk to me?

      Petitioner: No

      Moore: Okay. Well, let me ask you: Did—do you want to talk to an
      attorney or do you want to talk to me? It’s your decision.

      Petitioner: I want to talk to you.

      Moore: Are you sure?

      Petitioner: Yes.

      Moore asked several more questions to ensure that Petitioner knew and

understood his rights, and that he did not want to contact an attorney. Petitioner

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confirmed his decision to speak to Moore without an attorney. Moore then

completed the interview, during which Petitioner made incriminating statements

about his participation in the crime. The interview was recorded.

      Petitioner subsequently was charged with one count of attempted robbery,

two counts of aggravated battery on a person sixty-five years or older, and one

count of aggravated assault. Prior to trial, Petitioner moved to suppress his

interview with Moore. Petitioner argued that he had asked to speak with an

attorney and that Moore had interviewed him without honoring his request, in

violation of Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny. There is no

written order in the record ruling on the motion to suppress, but the trial judge

allowed the recording of Petitioner’s interview to be played for the jury. The jury

convicted Petitioner on all four counts as charged. After applying a habitual

violent felony enhancement, the trial judge sentenced Petitioner to life

imprisonment.

      Petitioner’s conviction and sentence were affirmed on direct appeal.

Pardon, 930 So. 2d at 704. Addressing Petitioner’s Miranda claim, the Florida

appellate court held that Petitioner’s rights were not violated because he was not

undergoing interrogation, and interrogation was not imminent, when he asked if he

could talk to an attorney. Id. at 703. Petitioner sought state post-conviction relief

under Florida Rule of Criminal Procedure 3.850, which was denied. See Pardon v.

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State, 88 So. 3d 955 (Fla. 4th DCA 2011). Petitioner then filed the instant federal

habeas petition under § 2254 asserting numerous grounds for relief. The district

court denied relief on all grounds. This Court granted a certificate of appealability

on the Miranda issue.

                                 II. DISCUSSION

A.    Applicable Standard

      We review de novo the district court’s legal conclusions, and we review the

district court’s findings of fact for clear error. Terrell v. GDCP Warden, 744 F.3d

1255, 1261 (11th Cir. 2014). The Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) imposes a highly deferential standard for reviewing the

Florida court’s decision on the merits of Petitioner’s Miranda claim. See id. The

AEDPA only authorizes federal habeas relief if the 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 if it was “based on an

unreasonable determination of the facts in light of the evidence presented.” Id.

(quoting 28 U.S.C. § 2254(d)) (quotation marks omitted).

      A decision is “contrary to” federal law if it conflicts with the governing rule

set forth by the United States Supreme Court, or arrives at a different result than

the Supreme Court when faced with materially indistinguishable facts. Id. (citing

Kimbrough v. Sec’y, Dep’t of Corr., 565 F.3d 796, 799 (11th Cir. 2009)). “An

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‘unreasonable application’ of clearly established federal law occurs when the state

court correctly identifies the governing legal principle . . . but unreasonably applies

it to the facts of the particular case.” Id. (quoting Bell v. Cone, 535 U.S. 685, 694

(2002)) (quotation marks omitted). This Court has emphasized the difference

between an “unreasonable” and an “incorrect” application of federal law. Terrell,

744 F.3d at 1261. As we explained in Terrell, even a “strong case for relief” does

not necessarily mean that the state court’s contrary conclusion was “unreasonable.”

Id. (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)) (quotation marks

omitted). See also Loggins v. Thomas, 654 F.3d 1204, 1220 (11th Cir. 2011)

(habeas relief is not available if fairminded jurists could agree with the state court’s

decision).

      Likewise, a state court’s factual findings are not “unreasonable” just because

the federal habeas court would have viewed the facts differently if it had

considered them in the first instance. Hittson v. GDCP Warden, 759 F.3d 1210,

1230 (11th Cir. 2014). Rather, a state court’s factual findings are only

unreasonable if “no fairminded jurist could agree” with them. Holsey v. Warden,

Ga. Diagnostic Prison, 694 F.3d 1230, 1257 (11th Cir. 2012) (citing Harrington,

562 U.S. at 102) (quotation marks omitted). See also Landers v. Warden, Att’y

Gen. of Ala., 776 F.3d 1288, 1293-94 (11th Cir. 2015) (“The Supreme Court has

found state factual findings unreasonable under § 2254(d)(2) when the direction of

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the evidence, viewed cumulatively, was too powerful to conclude anything but [the

petitioner’s factual claim]”) (quoting Miller-El v. Dretke, 545 U.S. 231, 265

(2005)) (quotation marks omitted).

B.    Petitioner’s Miranda Claim

      Petitioner contends that, when he asked one of the officers who arrested him

if he could talk to his attorney, he invoked his Miranda right to have counsel

present during any subsequent questioning. The recorded interview reflects that

Petitioner advised Moore of his previous request for an attorney. Rather than

concluding the interview, Moore sought a Miranda waiver and resumed his

questioning. Petitioner argues that Moore thereby violated Miranda and the

Supreme Court’s subsequent admonition that an accused who invokes his right to

have counsel present during questioning “is not subject to further interrogation by

the authorities until counsel has been made available to him.” Edwards v. Arizona,

451 U.S. 477, 484-85 (1981). According to Petitioner, the Florida appellate court’s

adverse ruling was contrary to or an unreasonable application of clearly established

federal law, and was based on an unreasonable determination of the facts. We

disagree.

      1.     The state court properly identified the governing legal principles.

      The Florida appellate court’s decision clearly was not “contrary to” federal

law. Beginning with Miranda itself, the Florida court cited and accurately

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described the holdings of the most relevant Supreme Court cases. Pardon, 930 So.

2d at 701-703. The Florida court noted that Miranda “require[s] the police to

unequivocally honor an arrestee’s request not to speak to the police without

counsel.” Id. at 702. Quoting extensively from Edwards, the court further

recognized that an accused, “having expressed his desire to deal with the police

only through counsel, 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.” Id. (quoting

Edwards, 451 U.S. at 484-85). This is a correct statement of the legal principles

that govern Petitioner’s claim.

      2.     The state court’s decision was not an “unreasonable application” of
             the above authorities.

      Although the Florida court acknowledged that the police must scrupulously

comply with the Miranda-Edwards rule, it held that the rule was not implicated

here because Petitioner was not subject to interrogation or imminent interrogation

when he inquired about an attorney. Id. In support of its holding, the court cited

Supreme Court authority indicating that (1) Miranda safeguards only apply when a

defendant is subject to “custodial interrogation” and (2) “custodial interrogation”

must involve something more than merely being in custody. Id. (citing Rhode

Island v. Innis, 446 U.S. 291, 300 (1980) (“the special procedural safeguards

outlined in Miranda are required not where a suspect is simply taken into custody,
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but rather where a suspect in custody is subjected to interrogation”). Specifically,

the Supreme Court has explained that “interrogation” in the Miranda context refers

either to “express questioning” or other “words or actions on the part of the police

(other than those normally attendant to arrest and custody)” that are likely to elicit

an incriminating response. Innis, 446 U.S. at 301. Based on the evidence

presented, the Florida court concluded that although Petitioner was in custody, he

was not subject to questioning or other “words or actions” likely to elicit

incriminating information when he inquired about an attorney. Pardon, 930 So. 2d

at 702.

      Furthermore, the Florida court rejected the idea that Petitioner could have

“anticipatorily invoked” his Miranda right to counsel before interrogation was

imminent. Id. According to the court, “requiring the invocation [of the right to

counsel] to occur either during custodial interrogation or when it is imminent

strikes [the healthiest] balance between the protection of the individual from police

coercion on the one hand and the State’s need to conduct criminal investigations on

the other.” Id. (quoting Ault v. State, 866 So. 2d 674, 686 (Fla. 2003)) (quotation

marks omitted). Petitioner conceded that he was fully apprised of his Miranda

rights and that he did not invoke, and in fact repeatedly disavowed, his right to

counsel just prior to his interview with Moore, when his interrogation did become

imminent. Id. at 701. The Florida court thus held that Petitioner’s interview did

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not violate the Miranda-Edwards rule, and that the interview was properly

admitted into evidence. Id. at 702-04.

      The Florida court’s decision was not unreasonable. Supreme Court authority

supports its conclusion that the Miranda-Edwards safeguards only apply when a

defendant is undergoing or imminently subject to interrogation and not when the

defendant is merely in custody. See Innis, 446 U.S. at 300 (“‘Interrogation,’ as

conceptualized in the Miranda opinion, must reflect a measure of compulsion

above and beyond that inherent in custody itself.”) and McNeil v. Wisconsin, 501

U.S. 171, 177-78 (1991) (noting that the Miranda-Edwards guarantee “relates only

to custodial interrogation”). The evidence in this case suggests that although

Petitioner was in custody when he inquired about an attorney, he was not

undergoing or imminently subject to “interrogation.” See Pardon, 930 So. 2d at

701. Moreover, the Supreme Court has never held that a defendant can invoke his

Miranda rights anticipatorily. McNeil, 501 U.S. at 182 n. 3. See also Bobby v.

Dixon, 132 S. Ct. 26, 29 (2011) (quoting McNeil for the proposition that “this

Court has never held that a person can invoke his Miranda rights anticipatorily, in

a context other than ‘custodial interrogation’”) (quotation marks omitted). Thus,

the Florida court’s holding that Petitioner’s interrogation did not violate the

Miranda-Edwards rule was a reasonable application of the governing Supreme

Court precedents.

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      3.     The state court’s decision was not based on an unreasonable
             determination of the facts in light of the evidence in the record.

      Finally, Petitioner’s argument that the Florida court’s decision was based on

an unreasonable determination of the facts consists of little more than a conclusory

assertion. Petitioner does not support the assertion with any more detailed

argument or even identify the factual determinations that he claims to be

unreasonable. Based on his arguments below, we assume Petitioner’s position to

be that the Florida court unreasonably determined that interrogation was not

“imminent” when Petitioner asked about an attorney. Petitioner argued in the

district court that there were no facts in the record to support this conclusion.

Again, we disagree.

      Indeed, there is plenty of evidence in the record to support the Florida

court’s finding. Petitioner acknowledged during the interview that “there was no

questioning going on” when he inquired about an attorney. There is no evidence

that Petitioner, at the time of the inquiry, was otherwise subjected to any “words or

actions on the part of the police” that were likely to elicit incriminating

information. Innis, 446 U.S. at 301. About three hours after the inquiry, and just

prior to his interview, Petitioner equivocated when asked whether he had

previously invoked his right to an attorney, stating “Yeah, I did that. No, I’m

going to put no.” He then clarified that he had no desire to talk to an attorney, and

wanted to waive his Miranda right to have an attorney present during questioning.
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Based on this evidence, the Florida appellate court’s factual finding was not

unreasonable.

                                III. CONCLUSION

      For the reasons stated above, we affirm the denial of Petitioner’s § 2254

petition for a writ of habeas corpus.

      AFFIRMED.




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