
USCA1 Opinion

	




          November 29, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1716                                    JERRY LARRIVEE,                                Plaintiff, Appellant,                                          v.                                     MCC, SUPT.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Jerry  Larrivee on  Memorandum of  Law  Seeking Probable  Cause to            _______________        Appeal.                                 ____________________                                 ____________________                      Per  Curiam.   Petitioner  Jerry  Larrivee seeks  a                      ___________            certificate of probable cause to  appeal the dismissal of his            28 U.S.C.   2254 habeas petition.  For  the reasons set forth            below, we deny his request.   Petitioner was convicted, after            a jury  trial, of burglary,  robbery, theft of a  firearm and            possession of  a firearm by  a felon.   This  was his  second            conviction;  both  convictions  arose  out  of  robberies  of            taxicab  drivers.    His conviction  was  affirmed  on direct            appeal.  See State v. Larrivee, 563 A.2d 1104 (Me. 1989).                     ___ _____    ________                      Petitioner's habeas petition  contains four grounds            for   relief:    (1)   withholding  of  information   by  the            prosecutor;  (2) conviction obtained  by the use  of perjured            testimony of a witness; (3) conviction obtained by the use of            an   inadmissable  and   involuntary   confession;  and   (4)            conviction   obtained   by   an   unconstitutional   in-court            identification.  The district court referred the  matter to a            magistrate judge.   He  rejected grounds one  and two  on the            basis that they had been disposed of on the merits in a prior            habeas petition.                      As for grounds three and four, the magistrate judge            basically determined  that these claims had  been "exhausted"            in  the  sense  that  petitioner now  would  be  barred  from            pursuing any  state remedy.   However,  the magistrate  judge            went on, petitioner  failed to show cause for this procedural            default.  In addition, the  magistrate judge stated that  the            Fourth Amendment aspect of  the admissability of petitioner's            confession was  barred.  See  Stone v. Powell, 428  U.S. 465,                                     ___  _____    ______            494 (1976) (where habeas petitioner had a full opportunity to            litigate  such a  matter  in state  court,  federal court  is            barred from considering it in a   2254 petition).                      We agree that petitioner may not pursue grounds one            and  two in  this habeas action.   In addition  to the reason            given by  the district court,  it is plain that  these claims            have been procedurally defaulted.   Petitioner presented both            of these  grounds in a Maine R. Crim.  P. 33 new trial motion            and in a  post-conviction review petition.   In rejecting the            claims in the  latter proceeding, the  state court held  that            the  issues  of  the  use   of  perjured  testimony  and  the            withholding  of evidence from the defense  were barred on the            basis that "[r]ather than relitigating [these] grounds in the            present proceeding, the proper procedure  for contesting [the            Rule 33] decision  is through direct appeal to  the Maine Law            Court."  Under  Coleman v. Thompson, 111 S.  Ct. 2546 (1991),                            _______    ________            if  a "state court decline[s] to address a prisoner's federal            claims  because the  prisoner ha[s]  failed to  meet a  state            procedural  requirement," the  prisoner must  show cause  and            prejudice to  be entitled to  federal habeas review.   Id. at                                                                   ___            2554, 2565.  Petitioner has not made this showing.1                                            ____________________            1.  We also agree with the district court's reliance on Stone                                                                    _____            v. Powell to  dismiss the claim that  petitioner's confession               ______            was obtained in violation of the Fourth Amendment; petitioner                                         -3-                      In relation to  grounds three and four,  it appears            from the State's  Response to the habeas  petition that there            is a  real question  whether  petitioner may  have, in  fact,            satisfied the exhaustion requirement.  Rather than remand the            matter, however, we  will assume exhaustion for  the purposes            of disposing  of petitioner's  request for  a certificate  of            probable cause on the merits.                      1.   Involuntary  Confession.   Petitioner  alleges                           _______________________            that the following events rendered his confession involuntary            and,  hence,  inadmissable.    After  his arrest,  petitioner            states that he  was interrogated by four  police officers for            two hours; one of the officers stood behind him at all times.            At some point, according to  petitioner, he was informed that            the  police had  in  their possession  a  statement from  two            persons  implicating  him  in  the  offense.    According  to            petitioner, there only  was a statement from  one individual.            Finally, upon  being promised that  if he confessed  he would            not  be  prosecuted,  petitioner narrated  a  statement.   He            asserts that  the only reason he  did so was because  of this                              ____            promise.  He further alleges that he was not allowed  to read            over his statement in order to make changes.2                                              ____________________            has not  alleged the denial  of an opportunity to  raise this            issue in state court.            2.  Petitioner's assertion that the state  trial court should            have held a  hearing on the question of  the voluntariness of            his confession  once petitioner  testified that  it was  made            under  "the use  of inducement"  is  without merit.   In  the                                         -4-                      To determine the question of voluntariness, we must            consider what effect the totality of the circumstances had on            petitioner's will.   See Schneckloth v. Bustamonte,  412 U.S.                                 ___ ___________    __________            218,  226-27 (1973).    In  the context  of  a habeas  corpus            petition, petitioner has the burden of demonstrating that his            will was overborne  by police tactics and that,  as a result,            his confession was  the product of a  "`critically impaired'"            intellect.  See Jenner v. Smith, 982 F.2d 329, 333 (8th Cir.)                        ___ ______    _____            (citation omitted), cert.  denied, 62  U.S.L.W. 3245  (1993);                                _____________            see also United States v.  Lawrence, 889 F.2d 1187, 1189 (1st            ___ ____ _____________     ________            Cir. 1989) (a showing that psychological or physical pressure            overrode a  defendant's will required).  A  confession is not            involuntary unless the police  overreached by using  coercive            tactics  to   elicit  an   incriminating  statement   from  a            defendant.  See  Colorado v. Connelly,  479 U.S. 157,  163-64                        ___  ________    ________            (1986).                      Here, there is nothing to indicate  that petitioner            was anything  else but of  normal intelligence.  He  does not            assert that  he was  illiterate or uneducated.   Further,  we            assume, because petitioner does not indicate to the contrary,                                            ____________________            absence of a motion to  suppress the statement prior to trial            or  an objection  to its  admission during trial,  there must            exist "alerting circumstances" before a court has the duty to            sua  sponte inquire into  the voluntariness of  a confession.            ___  ______            See United  States v. Santiago  Soto, 871 F.2d 200,  202 (1st            ___ ______________    ______________            Cir.) (per  curiam), cert. denied,  493 U.S. 831 (1989).   No                                 ____________            such circumstances exist  here.  Id. (duty to  hold a hearing                                             ___            if it appears  defendant is impaired physically  or mentally)            (citing cases).                                         -5-            that  he had  been advised  of  his Miranda  rights upon  his                                                _______            arrest.  See Miranda  v. Arizona, 384 U.S. 436 (1966).  Thus,                     ___ _______     _______            he was aware that any statement he made could be used against            him.  See  Evans v. Dowd, 932  F.2d 739, 742 (8th  Cir.) (per                  ___  _____    ____            curiam)  (Where Miranda  warnings were  given,  "it would  be                            _______            difficult  to conclude that the police coerced the confession            while at the  same time warning [defendant] that  he need not            say anything."), cert. denied, 112 S. Ct. 385 (1991).                             ____________                      Petitioner's most  serious allegation  is that  the            police  specifically promised that he would not be prosecuted            if he confessed.   In  Bram v.  United States,  168 U.S.  532                                   ____     _____________            (1897), upon  which petitioner relies, the Court  held that a            confession  is  involuntary   if  it  was  obtained   by  any                                                                      ___            promises -- implied or direct, substantial or slight.  Id. at                                                                   ___            542-43.   However, Bram "has not been interpreted as a per se                               ____                                ______            proscription against any promises made during interrogation."            Miller v. Fenton, 796 F.2d  598, 608 (3d Cir.), cert. denied,            ______    ______                                ____________            479 U.S. 989 (1986).  The question is whether the promise, by            overcoming  the will  of petitioner, induced  the confession;            ____________________            that is, "whether,  under the totality of  the circumstances,            the statement induced the confession, not whether it was,  on            its face, a promise."  Id.  at 609 n.10.                                   ___                      The  bare  statement  that  petitioner  decided  to            confess  because of  a police  promise that  he would  not be            prosecuted, standing  alone, does not  satisfy this  inquiry.                                         -6-            What  is  missing  are factual  allegations  of  any specific            behavior or  conversations.   See United  States v.  Santiago                                          ___ ______________     ________            Soto, 871 F.2d 200, 202  (1st Cir.) (per curiam) (no coercion            ____            where  allegation   that  defendant  was   afraid  of  postal            inspectors  not supported by  "a description of  any specific            behavior"),  cert. denied,  493 U.S.  831  (1989).   Further,                         ____________            there is no indication in any of  petitioner's pleadings that            he  was in  a weakened  state  of mind  due to  psychological            pressures or that, due to  the length of the questioning, the            use of  physical punishments,  or the threat  of violence  or            prolonged  incarceration, he was no longer rational.  Compare                                                                  _______            Davis  v. North  Carolina, 384 U.S.  737, 745-47,  752 (1966)            _____     _______________            (defendant held for sixteen days under repeated interrogation            without   being  told  of  rights;  confession  found  to  be            involuntary); Payne  v. Arkansas,  356 U.S.  560, 567  (1958)                          _____     ________            (confession  involuntary  where   defendant  not  advised  of            rights,  held incommunicado for  three days, denied  food for            long periods of time and threatened with violence).                      We only note  that courts have upheld  as voluntary            confessions given in circumstances more coercive than alleged            here.  See, e.g., Stein v. New York, 346 U.S. 156, 185 (1953)                   ___  ____  _____    ________            (12-hour interrogation stretched out over 32-hour period, not            so "oppressive as to overwhelm powers of resistance"); United                                                                   ______            States  v.  Kiendra, 663  F.2d  349, 351-52  (1st  Cir. 1981)            ______      _______            (confession held voluntary despite fact that defendant,  with                                         -7-            a ninth-grade education, held in solitary confinement for one            month before confession);  United States v. Parker,  549 F.2d                                       _____________    ______            1217,  1220-21  (9th  Cir.)  (confession  determined   to  be            voluntary even  though defendant interrogated  for four hours            and despite  existence of dispute  as to whether  agents used            promises of drugs and physical force), cert. denied, 430 U.S.                                                   _____ ______            971 (1977).  See generally Lawrence, 889 F.2d at 1190.                         ___ _________ ________                      2.     Unconstitutional  In-court   Identification.                             ___________________________________________            Although not entirely clear, petitioner apparently bases this            claim on his assertion that he did not resemble either of the            descriptions of the  perpetrators given to the  police by the            victim.  As a result, he asserts, the in-court identification            was impermissibly  "tainted."   Petitioner goes  on to  argue            that if the fact of the prior descriptions had been disclosed            to  the defense,  the  "misidentification"  never would  have            occurred.                      These  allegations do  not  state a  constitutional            claim.   This  is not  the case  where a  suggestive pretrial            identification procedure "tainted" an in-court identification            during trial.  See e.g., Stovall v. Denno, 388 U.S.  293, 302                           ___ ____  _______    _____            (1967)  (individual  showup  in   hospital  room).    Rather,            petitioner's  concern appears  to be  evidentiary in  nature.            That is, he argues that if he had had,  at the time of trial,            the   information   concerning  the   victim's   description,            petitioner  could have  impeached  the victim's  credibility.                                         -8-            Because  petitioner  has  procedurally  defaulted  the  claim            concerning  the  failure  of  the   prosecution  to  disclose            exculpatory   material,  this  claim,   by  itself,   is  not            cognizable  under   2254.  See Neil v. Biggers, 409 U.S. 188,                                       ___ ____    _______            196-201 (1972).                      The  request for a certificate of probable cause is            denied.  The motion to proceed in forma pauperis on appeal is            ______            moot.            ____                                         -9-
