                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2027
                                   ___________

Cesar de la Garza,                       *
                                         *
             Petitioner - Appellant,     *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Joan Fabian,                             *
                                         *
             Respondent - Appellee.      *
                                    ___________

                             Submitted: May 12, 2009
                                Filed: July 31, 2009
                                 ___________

Before LOKEN, Chief Judge, BYE, Circuit Judge, and MILLER, District Judge.1
                              ___________

MILLER, District Judge.

      We affirm the district court’s order 2 denying the petition for writ of habeas
corpus of appellant Cesar de la Garza. De la Garza, who was convicted of second
degree murder by a Kandiyohi County, Minnesota jury, petitioned the district court


      1
       The Honorable Brian S. Miller, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
      2
       The Honorable Richard H. Kyle, United States District Judge for the
District of Minnesota, adopting the report and recommendations of the Honorable
Jeanne J. Graham, United States Magistrate Judge for the District of Minnesota.
for habeas relief asserting, among other things, that he was denied his Sixth
Amendment right to counsel because jail officials did not permit him to communicate
with his attorney during an overnight trial recess. The district court denied de la
Garza’s petition and he was granted a certificate of appealability. We affirm because
the state court did not violate clearly established law and because we presume the state
court’s factual finding, that de la Garza ’s right to counsel was neither denied nor
interfered with, is correct.

                                            I.

       De la Garza was arrested on June 7, 2000, and was later charged with first
degree murder for the death of Jesus Garcia Guajardo. He was detained in the
Kandiyohi County Law Enforcement Center while awaiting trial. On January 6, 2002,
de la Garza and four other inmates created a disturbance in the center and he was
placed in disciplinary segregation. As a result, his out-of-cell time was limited to
fifteen minutes per day.

       De la Garza’s trial began on January 28, 2002. During voir dire, de la Garza’s
attorney provided him with several newspaper articles relating to the case and told de
la Garza to call him about the possibility of filing a motion for change of venue due
to pretrial publicity. According to de la Garza, that evening, after returning to his cell,
he asked one of the guards to use the telephone to call his attorney. He states that he
was told that his out-of-cell time had been used up during the ten hours that he was
in court and that he was denied the use of the telephone. The next morning, before the
start of trial, de la Garza met with his attorney to discuss a change of venue and was
informed that it was too late. De la Garza was convicted of second degree murder.

      After exhausting his state court remedies, de la Garza petitioned for post-
conviction relief, arguing that the state had interfered with his right to counsel. A
hearing on the petition was held and, at that hearing, de la Garza testified that he was

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not denied access to counsel on trial days between the hours of 8:30 a.m. and 5:00
p.m. He also testified that his attorney had not attempted to telephone him.

        Jail Administrator Ron Wilson testified that the center is required to permit
attorneys to meet with detainees. Wilson also testified that there are no restrictions
on how long a detainee can stay out of his cell while talking to his attorney and that
jailers do not cut detainees off when they are on the telephone with their attorneys.

        The state trial court denied de la Garza’s petition for post-conviction relief and
that denial was affirmed by the state appellate court. In affirming, the state appellate
court found that the record did not reflect that: (1) de la Garza asked to use the
telephone to contact his attorney; (2) de la Garza’s attorney was available to speak
with him if he had called; or (3) if de la Garza’s attorney had been available, the
attorney could have prepared the memorandum necessary to support a motion for
change of venue. The appellate court also found that de la Garza had admitted that no
one had interfered with his access to counsel. The state appellate court concluded that
although limits had been placed on de la Garza’s telephone usage, the limits were
justified and did not unduly interfere or prejudice de la Garza’s right to counsel.

       Thereafter, de la Garza filed a petition for writ of habeas corpus containing
eleven grounds; the first being that his Sixth Amendment right to counsel was violated
when he was not permitted to use the telephone on the evening of January 28, 2002.
The magistrate judge issued a report recommending dismissal with prejudice of
grounds two through eleven, and those grounds were dismissed. In a second report,
the magistrate judge recommended denying de la Garza’s petition for habeas corpus.
That recommendation was adopted by the district court and de la Garza’s petition for
a writ of habeas corpus was dismissed with prejudice.

      De la Garza was granted a certificate of appealability on April 25, 2008, to
determine whether he is entitled to a writ of habeas corpus because the guard did not

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permit him to call his attorney, thereby violating his Sixth Amendment right to
counsel.

                                           II

       The district court’s denial of de la Garza’s petition for writ of habeas corpus is
affirmed because de la Garza has not shown that the state court’s decision was
contrary to, or involved an unreasonable application of, clearly established federal
law. This is true because there is no Supreme Court precedent holding that the failure
of a jail guard to permit a detainee to call counsel during an overnight trial recess
violates the detainee’s Sixth Amendment right to counsel. Further, de la Garza has
failed to show that the state court’s determination, that the limits placed on de la
Garza’s phone usage did not unduly interfere or prejudice his right to counsel, was
based on an unreasonable application of established principles, or an unreasonable
determination of the facts.

       The review of habeas petitions is limited to the issues in the certificate of
appealability. Chang v. Minn., 521 F.3d 828, *831 (8th Cir. 2008). The district
court’s findings of fact are reviewed for clear error and its conclusions of law are
reviewed de novo. Id.; Revels v. Sanders, 519 F.3d 734, *739 (8th Cir. 2008).
Because this habeas corpus action involves a state-court conviction, the court’s review
is limited by the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA).
Underdahl v. Carlson, 462 F.3d 796, *798 (8th Cir. 2006). Under the AEDPA, a
federal court may grant a writ of habeas corpus on a claim decided by a state court
only when the state court’s decision was contrary to, or involved an unreasonable
application of, clearly established federal law, as determined by the Supreme Court,
or the decision was based on an unreasonable determination of the facts in light of the
evidence presented in the state court. Sanders v. Norris, 529 F.3d 787, *790 (8th Cir.
2008); Nicklasson v. Roper, 491 F.3d 830, *833 (8th Cir. 2007). A state court
decision is contrary to clearly established federal law if it reaches a conclusion

                                          -4-
opposite to one reached by the Supreme Court on a question of law or decides the case
differently than the Supreme Court has decided a case with a materially
indistinguishable set of facts. Nicklasson, 491 F.3d at *833-34; Underdahl, 462 F.3d
at *798.

       A state court decision involves an unreasonable application of clearly
established federal law if, in the federal court’s independent judgment, the relevant
state court decision not only applied clearly established federal law incorrectly, but
also did so unreasonably. Nicklasson, 491 F.3d at *834. For an application of the law
to be unreasonable, it must be more than merely wrong. Underdahl, 462 F.3d at *798.
The unreasonable application inquiry is an objective one. Carter v. Bowersox, 265
F.3d 705, *713 (8th Cir. 2001). The AEDPA requires federal courts to presume that
state court factual findings are correct. Nicklasson, 491 F.3d at *834; Smulls v.
Roper, 535 F.3d 853, *864 (8th Cir. 2008)(presumption of correctness also applies to
factual determinations of state appellate courts).

       In denying de la Garza’s petition for writ of habeas corpus, the district court
found that the law was unclear as to whether de la Garza was required to show some
type of prejudice in order to establish a violation of his right to counsel. In his habeas
petition, de la Garza asserts that the law is well settled that a showing of prejudice is
not required. The parties rely on Geders v. United States, 425 U.S. 80, 92 96 S. Ct.
1330, 1337 (1976) and Perry v. Leeke, 488 U.S. 272, 109 S. Ct. 594 (1989) in support
of their positions.

       In Geders, the trial court ordered the defendant to refrain from conferring with
his attorney during an overnight trial recess between the defendant’s direct and cross
examinations. Id. at *92, 96 S.Ct. at **1337. The Supreme Court held that the trial
court’s order violated the defendant’s right to assistance of counsel because, among
other things, an overnight trial recess provides a defendant the opportunity to discuss
with counsel the significance of the day’s events. Id. at *88, 96 S. Ct. at **1335. The

                                           -5-
Court, however, explicitly held that it was not addressing limitations that were
imposed in other circumstances. Id. at *92, 96 S. Ct. at **1337.

       Geders was clarified by Perry, in which the Supreme Court held that habeas
petitioners do not have to prove prejudice when they show an actual or constructive
denial of the assistance of counsel. See Perry, at *280, 109 S. Ct. at **599. The
petitioner in Perry argued that his Sixth Amendment right to counsel had been
violated by the trial court’s order forbidding him from consulting with his attorney
during a fifteen minute recess between his direct and cross-examinations. The district
court granted the petition. The Fourth Circuit Court of Appeals, sitting en banc,
reversed. See id. at *276, 109 S. Ct. at **597. The Court of Appeals held that,
although Geders applied, the conviction should stand because the trial court’s error
was harmless in that it was not prejudicial. Id. at *276, 109 S. Ct. at **597. The
Supreme Court granted certiorari. Id.

       In affirming the Fourth Circuit, the Supreme Court distinguished Perry from
Geders and held that the Sixth Amendment guarantees the types of discussions
attorneys have with their clients during long recesses that go beyond discussions about
the defendant’s own testimony, “such as the availability of other witnesses, trial
tactics, or even the possibility of negotiating a plea bargain.” Id. at *284, 109 S. Ct.
at **602. It further held that:

      [i]t is the defendant’s right to unrestricted access to his lawyer for advice
      on a variety of trial-related matters that is controlling in the context of a
      long recess. The fact that such discussions will inevitably include some
      consideration of the defendant’s ongoing testimony does not compromise
      that basic right. But in a short recess in which it is appropriate to
      presume that nothing but the testimony will be discussed, the testifying
      defendant does not have a constitutional right to advice.

Id. (internal citations omitted).

                                          -6-
                                           III.

        The denial of de la Garza’s petition for habeas relief should be affirmed because
the state court’s holding is not contrary to clearly established federal law. Although,
at first blush, Geders and Perry appear to provide a framework in which to analyze de
la Garza’s case, there are key distinctions between this case and Geders and Perry, and
there is no Supreme Court precedent controlling the issues presented in this case.
Indeed, in Geders and Perry, the defendants were prevented from speaking to counsel
by order of the court, while in the present case, de la Garza claims that a jail guard
would not permit him to call his attorney. For this reason, we would affirm even if
we disregarded the state court’s finding that de la Garza’s right to counsel was neither
denied nor interfered with and accepted de la Garza’s position that a guard prevented
him from calling his attorney.

       Finally, it is well established that the factual determinations of the state court,
including those by the state appellate court, are presumed to be correct. See Smulls
v. Roper, 535 F.3d 853, *864 (8th Cir. 2008); Johnson v. Wyrick, 653 F.2d 1234,
*1237 (8th Cir. 1981). For this reason, we are unpersuaded by de la Garza’s argument
that we should disregard the state court’s factual determinations. Although de la
Garza argues that the state court’s determination that jail officials did not deny him
access to counsel was based on either an unreasonable application of established
principles or an unreasonable determination of the facts, this court defers to the factual
findings of the state court and there is nothing in the record indicating that the
presumption of correctness has been overcome.

                                           IV.

      For the foregoing reasons, we affirm the district court’s order denying de la
Garza’s petition for writ of habeas corpus.
                       ______________________________


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