                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0102n.06
                           Filed: November 18, 2004

                                           No. 03-3552

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

EDNA FINLEY,
      Petitioner-Appellant,
                                                     On Appeal from the
               v.                                    United States District Court for
                                                     the Southern District of Ohio
SHIRLEY A. ROGERS, WARDEN,
      Respondent-Appellee.

______________________________/


       BEFORE: KENNEDY and GILMAN, Circuit Judges; and HOOD, District Judge.*

       KENNEDY, Circuit Judge.

       Petitioner Edna Finley appeals from the district court’s denial of her request for a writ of

habeas corpus on the grounds that the district court erred when it held that it was not objectively

unreasonable for the Ohio state court to find that 1) she was competent to stand trial, 2) her

statements to the police were not involuntary, and 3) she voluntarily, intelligently, and knowingly

waived her Miranda rights. For the following reasons, we AFFIRM.

                                        BACKGROUND




       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

                                                1
          Finley was convicted of aggravated murder with firearm and death specifications. At the

penalty phase of the trial, the jury recommended that she be sentenced to life in prison with parole

eligibility after thirty years. The judge adopted the recommendation and sentenced her accordingly.

          The victim of the murder was Finley’s daughter-in-law, Donna Finley. Finley’s son, Thomas

Finley, Jr., who was married to the victim, and his girlfriend, Velma Lemmings, were also charged

with the murder. Both Finley Jr. and Lemmings pled guilty to the charges brought against them.

          When Finley was arrested, she made statements to the police that she subsequently moved

to suppress. On April 21, 1994, the trial court held a hearing on Finley’s motion to suppress during

which her expert, Dr. Jeffrey Smalldon, a clinical psychologist, testified concerning her mental

capacity to understand her Miranda rights and her ability to waive those rights. Based on Dr.

Smalldon’s testimony, the trial court determined that the issue of her competency to stand trial had

been raised and that further hearings on the matter were required. Three competency hearings were

subsequently held. At the first two, Petitioner was found incompetent but restorable; at the third,

she was found competent. At a motion to suppress hearing on January 4, 1996, the trial judge found

that she was capable of understanding and waiving her Miranda rights and that she had done so

knowingly and intelligently. After a jury found Petitioner guilty of the aggravated murder charge,

she appealed to the Ohio Court of Appeals, which affirmed her conviction. Thereafter, she

petitioned the district court for a writ of habeas corpus, pleading the following three grounds for

relief:

          Ground One. It is a violation of Petitioner’s Constitutionally protected . . . right to
          due process and a fair trial when Petitioner is compelled to stand trial after being
          twice found incompetent, when the state has not shouldered the burden of proving
          competence by a preponderance of the evidence.




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       Ground Two. Petitioner’s Constitutional right to due process was violated when her
       involuntary statements were used against her at trial

       Ground Three. Petitioner’s Constitutional rights were violated when her
       Miranda waiver was not made voluntarily, intelligently, and knowingly.

       The district court denied Petitioner’s requested relief on all three grounds, holding that the

Ohio Court of Appeals had not unreasonably applied clearly established federal law to the facts

when it concluded that the evidence supported the trial court’s findings that Finley was competent

to stand trial, that the statements she made to the police were not involuntarily coerced, and that she

voluntarily, knowingly, and intelligently waived her Miranda rights.

                                    STANDARD OF REVIEW

       We review the district court’s decision to deny a writ of habeas corpus de novo and its factual

findings for clear error. Delisle v. Rivers, 161 F.3d 370, 380 (6th Cir. 1998) (en banc). Since Finley

was incarcerated pursuant to the judgment of a state court, our review of her application is governed

by the amendments made to 28 U.S.C. § 2254(d) by the Antiterrorism and Effective Death Penalty

Act (AEDPA). Section 2254(d) reads as follows:

       (d) An application for a writ of habeas corpus on behalf of a person in custody
       pursuant to the judgment of a State court shall not be granted with respect to any
       claim that was adjudicated on the merits in State court proceedings unless the
       adjudication of the claim -

               (1) resulted in a decision that was contrary to, or involved
               an unreasonable application of, clearly established
               Federal law, as determined by the Supreme Court of the
               United States; or

               (2) resulted in a decision that was based on an unreasonable
               determination of the facts in light of the evidence presented in the
               State court proceeding




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       The Petitioner challenges her state court conviction on the ground that it resulted from an

unreasonable application of clearly established federal law. This court has previously recognized

that, by amending § 2254(d)(1) through the AEDPA, Congress intended to place “reasonable state

court judgments beyond the scope of federal review.” Herbert v. Billy, 160 F.3d 1131, 1135 (6th

Cir. 1998). Moreover, under § 2254(d)(1)’s “unreasonable application” clause, “a federal habeas

court may not issue the writ simply because that court concludes in its independent judgment that

the relevant state-court decision applied clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000).

See Wiggins v. Smith, 539 U.S. 510, 520 (2003) (noting that “[i]n order for a federal court to find

a state court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s decision

must have been more than incorrect or erroneous”).

       The Petitioner also challenges her state court conviction on the ground that it resulted from

an unreasonable determination of the facts in light of the evidence presented in the state court

proceeding. § 2254(d)(2). The state court’s factual determinations, however, are presumed correct.

§ 2254(e)(1). Moreover, before we can grant the Petitioner relief on the ground that her detention

resulted from a decision that was based on an unreasonable determination of the facts in light of the

evidence presented, she must establish by clear and convincing evidence that the state court’s

factual determinations were incorrect. Id.

                                             ANALYSIS

                                                 I.

       We first consider Petitioner’s argument that her Fifth and Fourteenth Amendment rights to

due process were violated when she was compelled to stand trial after being found competent.


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       It is well established that the trial of an incompetent defendant violates due process. See

Dusky v. United States, 362 U.S. 402 (1960). The standard for competence to stand trial is whether

the defendant “has sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding – and whether he has a rational as well as factual understanding of the

proceedings against him.” Id. In assessing whether Petitioner met this standard, the Ohio Court of

Appeals summarized the evidence regarding Petitioner’s competence to stand trial as follows:

       On June 9, 1994, the trial court held a competency hearing. On behalf of the State, Dr.
       Bobbie Hopes, . . . testified that she had tested Finley’s intellectual functioning and
       concluded that Finley had a verbal I.Q. of 73, which indicates borderline intellectual
       functioning. Dr. Hopes testified that she also administered the Georgia Court Competency
       Test, which tested Finley’s understanding of court proceedings and her ability to assist in her
       defense. Finley scored an 80 out of 100, with 70 being the threshold for competency. Based
       on the test scores, Dr. Hopes concluded that Finley was competent to stand trial.

       On behalf of Finley, Dr.[Smalldon] testified that Finley had borderline intellectual
       functioning and [that she] was not competent to stand trial. However, Dr. [Smalldon] also
       testified that Finley did not suffer from a mental illness and that she was not mentally
       retarded. Dr.[Smalldon] opined that Finley could be restored to competency. Based on the
       evidence presented . . . , the trial court determined that Finley was not competent ... but that
       she could be restored.

       On October 4, 1994, the trial court held a second competency hearing. [The State’s expert,
       Dr. Mossman,] questioned Finley regarding her understanding of the legal charges against
       her and the judicial process. He also had administered the Georgia Court Competency test,
       and Finley scored 76 points, within the range of competency. Based on his evaluation, Dr.
       Mossman opined that Finley was competent.

       On behalf of Finley, Dr. Smalldon testified that Finley was unable to describe to him the role
       of the attorneys in the trial, the charges against her, or the penalties associated with the
       charges. Based on his evaluation, Dr. Smalldon opined that Finley was incompetent to stand
       trial. Based on the experts’ testimony, the trial court ruled that Fiunley was not competent
       to stand trial but that she might be restorable to competency.

       On May 22, 1995, the trial court held a third competency hearing. Dr. Mossman testified
       that his testing of Finley indicated that she was exaggerating her mental problems. Dr.
       Mossman had administered the Symptom Validity Test, which indicated that Finley was
       malingering, and he further noted that in conversation Finley claimed she could not recall
       details of the incidents relating to the alleged crime that she recalled with specificity ten

                                                  5
       months after the killing. Dr. Mossman opined that . . . Finley . . . had the ability to
       understand the implications of her acts and the nature of the proceedings against her.

       [Psychological assistant Dixon Wulff, who] was responsible for assessing Finley’s progress
       within the treatment plan for restoration of her competence . . . , testified that Finley told him
       . . . that she believed she was incompetent and could no longer remember the events relating
       to the alleged crime. [Mr.] Wulff opined that Finley was malingering by choosing not to
       remember events so as to appear more mentally deficient and that she was competent to
       stand trial.

       Dr. Smalldon opined that Finley’s desire to assist defense counsel by taking various
       competency tests ... was inconsistent with the opinion that she was malingering. Further,
       [he] testified that Finley was unable to satisfactorily describe the charges against her and the
       role of the prosecutor. In sum, Dr. Smalldon opined that Finley was not competent to stand
       trial.

State v. Finley, No. 96-CA-30, 1998 WL 321017 at *2-3 (Ohio Ct. App., June 19, 1998).

       At the conclusion of the third hearing, the trial court found that Petitioner was competent to

stand trial. The Ohio Court of Appeals affirmed, concluding, “we find that the State presented

sufficient evidence during the third competency hearing to rebut the presumption of Finley’s

incompetence . . . . Moreover, we find that the testimony of [Dr. Mossman and Wulff] was

sufficient to sustain the trial court’s decision. The evidence presented during the competency

hearings supports the conclusion that Finley was competent to stand trial.” Id.

       Petitioner asserts that the question whether a defendant is competent is a mixed question of

law and fact. Therefore, she contends, the state court’s determination that Petitioner was competent

to stand trial should not be presumed correct. Reviewing the competency determination de novo,

we must find, Petitioner argues, that the conclusion that Petitioner was competent was based on an

“unreasonable determination of the facts in light of the evidence presented.” § 2254(d)(2).

       The question whether a defendant is competent to stand trial, however, is a question of fact

for purposes of the AEDPA. Mackey v. Dutton, 217 F.3d 399, 412 (6th Cir. 2000); see also


                                                   6
Thompson v. Keohane, 516 U.S. 99, 111 (1995). Therefore, we must accord the state court’s

determination that Petitioner was competent to stand trial a presumption of correctness. Section

2254(e)(1) provides that for the Petitioner to prevail on her claim of relief, she must rebut this

presumption by clear and convincing evidence. The Petitioner has failed to offer any evidence

sufficient to rebut this presumption.

       The Petitioner also asserts that the state court’s finding of competence resulted from an

unreasonable application of clearly established federal law. § 2254(d)(1). She claims that her

conviction violated the standards enunciated in Dusky since the state failed to establish that she had

sufficient capability to understand the proceedings against her and to assist in her defense. The

Petitioner notes that she was found incompetent in the first and second competency hearings. She

argues that the only new evidence introduced during the third competency hearing were the opinions

of Dr. Mossman and Mr. Wulff that she was malingering. Petitioner asserts that the assessment that

she might be malingering does not establish that she was competent. Hinging Petitioner’s

competency decision on the conclusion that she was malingering, she concludes, demonstrates an

improper application of the law to the facts.

       In contrast to the Petitioner’s characterization of the state court’s finding of competence, we

note that the state court found Petitioner competent not merely on the basis that she was malingering,

but also upon the conclusions of Dr. Mossman and Mr. Wulff, both of whom concluded that she

was competent to stand trial. During the final hearing, Dr. Mossman and Mr. Wulff testified that

she was competent but malingering and exaggerating her mental problems and her difficulties with

memories. Moreover, she twice placed above the threshold for competency when she took the




                                                  7
Georgia Court Competency test. After reviewing this evidence, we cannot conclude that the Ohio

court’s application of law to fact was objectively unreasonable.1

                                                   II.

        In her second ground of relief, Petitioner asserts that her confession was involuntarily

obtained, and thus that it was unconstitutional to admit it against her at trial.

        The Fifth Amendment privilege against compulsory self-incrimination bars the admission

of involuntary confessions against the accused. Jackson v. Denno, 378 U.S. 368, 376 (1964). A

confession is considered involuntary if 1) the police extorted the confession by means of coercive

activity, 2) the coercion in question was sufficient to overbear the will of the accused, and 3) the will

of the accused was in fact overborne because of the coercive police activity in question. McCall v.

Dutton, 863 F.2d 454, 459 (6th Cir. 1988). To determine whether an accuser’s confession is

involuntary, a totality-of-the-circumstances test is employed. Withrow v. Williams, 507 U.S. 680,

688-89 (1993). Factors to weigh include the age, education, and prior criminal experience of the

accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation

or mistreatment; and the existence of threat or inducement. See Arizona v. Fulminante, 479 U.S.

279, 286 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

        Petitioner contends that the totality of circumstances establish that her statement to the police

was not voluntarily given. She first notes that the police searched her house for 8 hours before


        1
         The Petitioner also asserts that her due process rights were violated when the Ohio Court
of Appeals failed to conclude that the burden to prove competence shifts to the state once a court
has already concluded the accused to be incompetent. The trial court did, however, hold the state
to proving that the Petitioner was competent to stand trial. The Ohio court of appeals statement that
it would only have held the state to the burden of production, and not to the higher standard of
sustaining the burden of proof, is merely dicta in light of its conclusion that the state met this higher
standard in establishing that the Petitioner was competent to stand trial.

                                                   8
bringing her to the police station for questioning and that she was 59 years old at the time. Neither

of these factors support the conclusion that her statement was involuntary. Although the duration

and intensity of an interrogation may be relevant to the question of voluntariness, the fact that the

police searched her house before the interrogation is irrelevant to the issue. Similarly, although age

can be relevant to the question of voluntariness, the mere recitation of her age, especially one that

is not particularly elderly, does not support the conclusion that her statement was involuntary.

        In support of her argument that her statement was involuntary, she primarily relies upon her

contention that the police induced her to make a statement by promising leniency. Her argument

is based upon the following exchange. At one point during the interrogation, Petitioner asked “what

will happen to me.” The interrogating officer responded, “I can’t promise you. . . . The only thing

I can tell you, . . . I can tell the Prosecutor, I can tell the Judge that you [sat] here and leveled with

us.” In response to the argument that this statement contained a promise of leniency, the Ohio Court

of Appeals concluded:

        [Petitioner] is unable to identify any representation made by the officers that reasonably led
        her to believe that she would receive some specific benefit, in the nature of more lenient
        treatment, in return for her cooperation. In response to [Petitioner]’s question what would
        happen to her if she cooperated with the officers, the officers indicated that they could not
        promise her what would happen to her but that they could inform the prosecutor and judge
        of her cooperation. The officers gave no indication of any lenient treatment resulting from
        their informing the prosecutor and judge.

State v. Finley, No. 96-CA-30, 1998 WL 321017 at *9 (Ohio App. 2 Dist., June 19, 1998).

        The question before us is whether the Ohio Court of Appeals’ conclusion that the Petitioner’s

statement was not involuntary was an unreasonable application of clearly established federal law

to the facts. Since the Ohio Court of Appeals correctly applied the totality of-the- circumstances test

and reasonably weighed all the relevant factors in reaching its decision, we conclude that it did not.


                                                    9
                                                  III.

        Finally, we must consider whether the Ohio Court of Appeals unreasonably applied clearly

establish federal law to the facts when it held that Petitioner voluntarily, intelligently, and knowingly

waived her Miranda rights.

        For a statement made by the accused to be admitted in evidence, the prosecution must show

that the accused effected a voluntary, knowing, and intelligent waiver of his Miranda rights.

Miranda v. Arizona, 384 U.S. 436, 444 (1966). The Supreme Court has noted that for a waiver to

be effective, it “must have been made with a full awareness both of the nature of the right being

abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412,

421 (1986). However, the Court has never “read the Constitution to require that the police supply

a suspect with a flow of information to help him calibrate his self-interest in deciding whether to

speak or stand by his rights.” Colorado v. Spring, 479 U.S. 564, 576-77 (1987). Such additional

information, the Court has noted, “could affect only the wisdom of a Miranda waiver, not its

essentially voluntary and knowing nature.” Id. at 577.

        The Petitioner contends that in light of her subnormal intelligence, the state failed to show

that her waiver was made with the necessary awareness of the rights being abandoned and the

consequences of the decision to abandon it. After the Petitioner was brought down to the police

station for questioning, the following exchange concerning her Miranda rights occurred:

        Spkr. One: Before we ask you any questions, I want you to understand that you have the
        right to remain silent. Do you understand that?

        Finley: Yes, sir.

        Spkr One: Anything that you say will be used against you in court. Do you understand that?

        Finley: Yes sir

                                                   10
       Spkr One: Okay, you have the right to consult with a lawyer before we ask you any
       questions and have him with you during any questioning. Do you understand that?

       Finley: Yes sir

       Spkr. One: If you cannot afford a lawyer, one will be appointed before any questioning if
       you wish. Do you understand that?

       Finley: Yes

       Spkr. One: If you decide to answer questions now without a lawyer present, you still have
       the right to stop answering at any time. Do you understand your Constitutional rights?

       Finley: Yes, sir

       Spkr One: Okay. Here’s a waiver, it says I have read this statement of my rights and I
       understand what my rights are, [and I am] willing to make a statement and answer questions.
       Are you willing to make a statement and answer our questions here today?

       Finley: I don’t understand what you want to ask.

       Spkr Three: [If] [y]ou don’t want to answer us, you don’t have to answer us.

       Finley: Okay

       Spkr Three: Okay? Do you agree with that?

       Finley: Yes, sir

       Spkr Three: Okay. It says I do not want a lawyer at this time. I understand and know what
       I am doing. No promises or threats have been made to me and no pressure or coercion of
       any kind has been used against me. Do you know what coercion is? I’m not pulling your
       hair and twisting your arm to get you to talk, that’s what that means basically, okay? This
       is your rights form that I just read to you. I need your signature here that says I read you
       your rights and you understand what your rights are.

       Petitioner signed the waiver form. In response to the argument that Petitioner did not

voluntarily, knowingly, and intelligently waive her Miranda rights, the Ohio Court of Appeals

concluded as follows:

       [Petitioner] received an adequate explanation of her Miranda rights by the interrogating
       officers, affirmatively responded that she understood and waived her rights, and answered

                                               11
       the officers’ ensuing questions responsively. There is sufficient testimony by the State’s
       expert witnesses relating to Finley’s mental abilities to support the finding that she was
       intellectually capable of understanding and waiving her Miranda rights. With respect to the
       officer’s explanation of the word “coercion,” we find that it was sufficient for the purposes
       of conveying to Finley the notion that the police did not force her to cooperate. In short, we
       find that the record supports the trial court’s finding that Finley was mentally capable of
       waiving her Miranda rights and did so knowingly and intelligently.

State v. Finley, No. 96-CA-30, 1998 WL 321017 at *9-10 (Ohio App. 2 Dist., June 19, 1998).

       We conclude that the Ohio Court of Appeals decision was not an unreasonable application

of clearly established federal law to the facts. There was clear evidence in the record that the

Miranda rights had been read to Petitioner, that she understood them, that she understood the

waiver, and that she signed it and answered questions voluntarily. While Petitioner is of below

average intelligence, that does not establish that she is per se unable to understand her Miranda

rights. Rather, as the district court noted, there is nothing cognitively complex about the advice that

one has a right to remain silent and not to talk to the police.

       For the foregoing reasons, we AFFIRM.




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