            Case: 15-10963   Date Filed: 01/28/2016   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-10963
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 6:13-cv-00788-ACC-DAB



TONY CORDERA,

                                                           Petitioner-Appellant,

                                versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                        Respondents-Appellees.

                       ________________________

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

                             (January 28, 2016)

Before ED CARNES, Chief Judge, HULL and MARCUS, Circuit Judges.

PER CURIAM:
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      Tony Cordera, a Florida prisoner serving a life sentence, appeals the district

court’s denial of his habeas corpus petition. We granted a certificate of

appealability on the following issue: whether the state court erred in denying

Cordera’s motion to suppress un-Mirandized statements made to the police while

he was hospitalized.

      Cordera was taken to the hospital after the police found him in his bedroom

lying next to a dead woman. He was holding a knife, his body was bloody, and he

was not moving. An officer rode with him in the ambulance to the hospital, where

an emergency room doctor treated him for extensive self-inflicted lacerations on

both wrists. Cordera was responding to commands and did not appear to be in

shock. Tests were negative for ingestion of alcohol or medication. The only

medication he received was a tetanus shot (which would not have affected his

mental abilities).

      Two detectives interviewed Cordera in the emergency room that day.

Although he appeared to be unconscious before the interview, he became alert

when a nurse placed smelling salts under his nose. He was not given Miranda 1

warnings. One of the detectives told Cordera that he was a homicide detective and

that they were trying to figure out what happened to his wrists (they also told him

that they had a search warrant for his home). They began asking him about his


      1
          Miranda v. Arizona, 384 U.S. 436, 444–45, 86 S. Ct. 1602, 1612 (1966).
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relationship with the victim and what had happened at his home that morning.

Cordera was alert and able to answer their questions, but repeatedly maintained

that he could not remember anything that happened after the victim arrived at his

home that morning. He was never handcuffed or placed under arrest during the

interview, which was recorded and lasted about 41 minutes.

      Cordera was arrested several hours after the interview. He was indicted for

first degree murder with a weapon, in violation of Fla. Stat. §§ 782.04(1) and

775.087(1). He moved to suppress the statements he made at the hospital,

contending that he was entitled to Miranda warnings because he was in custody

and that his statements were involuntary. The state circuit court denied his motion.

      A jury found Cordera guilty and he was sentenced to life in prison without

the possibility of parole. He appealed his conviction and the Florida Fifth District

Court of Appeal affirmed without opinion (and denied his motion for rehearing and

a written opinion). He then filed a petition for habeas corpus under 28 U.S.C.

§ 2254 in federal district court, contending that the state court erred in denying his

motion to suppress. The district court denied his petition.

      We review de novo a district court’s denial of a habeas petition, and its

factual findings for clear error. Ward v. Hall, 592 F.3d 1144, 1155 (11th Cir.

2010). 28 U.S.C. § 2254(d) prohibits federal courts from granting habeas relief on

claims previously adjudicated on the merits in state court, unless the state court


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decision: (1) “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) was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.”

      “Clearly established federal law” refers “to the holdings . . . of the Supreme

Court’s decisions as of the time of the relevant state-court decision.” Ward, 592

F.3d at 1155 (alteration in original) (quotation marks omitted). For a state court

decision to be contrary to clearly established federal law, it “must either (1) apply a

rule that contradicts the governing law set forth by Supreme Court case law, or (2)

reach a different result from the Supreme Court when faced with materially

indistinguishable facts.” Id. (quotation marks omitted). A state court decision is

an “unreasonable application” of clearly established federal law where the court

“unreasonably extends or fails to extend a clearly established legal principle to a

new context.” Id. (quotation marks omitted). A state court makes an unreasonable

determination of the facts only where the petitioner rebuts “the presumption of

correctness of a state court’s factual findings by clear and convincing evidence.”

Id. (quoting 28 U.S.C. § 2254(e)(1)).

      Cordera first contends that the state court’s determination that he was not

under the influence of alcohol or medication was unreasonable. That contention is

meritless. Although he claims that he had taken medication earlier that day,


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hospital tests were negative for alcohol or drugs. Because Cordera has not

provided “clear and convincing evidence” to rebut the “presumption of

correctness” of the state court’s factfinding, he cannot show that it was

unreasonable. See id. at 1155–56.

      Cordera’s second contention is that his statements should have been

suppressed because he was “in custody” when the detectives interviewed him and

he therefore should have received Miranda warnings. “Miranda warnings are

required only where there has been such a restriction on a person's freedom as to

render him ‘in custody.’” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711,

714 (1977). To determine whether someone is “in custody,” we first look at the

“circumstances surrounding the interrogation.” Thompson v. Keohane, 516 U.S.

99, 112, 116 S. Ct. 457, 465 (1995). “Given those circumstances,” we then

consider whether a “reasonable person [would] have felt he or she was not at

liberty to terminate the interrogation and leave.” Id. The “ultimate inquiry is

simply whether there is a formal arrest or restraint on freedom of movement of the

degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121,

1125, 103 S. Ct. 3517, 3520 (1983) (quotation marks omitted).

      Some facts do suggest that Cordera was in custody. For example, the

detectives never told him that he was free to leave and he was brought to the

hospital by an ambulance (instead of arriving on his own). See Yarborough v.


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Alvarado, 541 U.S. 652, 665, 124 S. Ct. 2140, 2150 (2004) (noting that those or

similar facts “weigh in favor of the view” that a suspect is in custody). But other

facts “weigh against a finding that [Cordera] was in custody.” See id. at 664, 124

S. Ct. at 2149. The police did not take him to the hospital (although an officer

accompanied him in the ambulance), the detectives who interviewed him did not

place him under arrest or threaten to do so, the interview lasted only 41 minutes,

and he was not arrested until several hours after the interview. See id. at 664–65,

124 S. Ct. at 2149–50; see also Mathiason, 429 U.S. at 495, 97 S. Ct. at 714

(noting the fact that an interview lasted only 30 minutes in deciding that a suspect

was not in custody).

      Because there are enough facts going either way on the issue, “fairminded

jurists could disagree over whether [Cordera] was in custody.” Yarborough, 541

U.S. at 664, 124 S. Ct. at 2149. The state court’s decision was not contrary to, nor

an unreasonable application of, clearly established federal law. See id. at 665, 124

S. Ct. at 2150 (“We cannot grant relief [under § 2254(d)(1)]. . . by conducting our

own independent inquiry into whether the state court was correct as a de novo

matter.”).

      Cordera’s final contention is that his statements were involuntary. For a

statement to be involuntary there must be “coercive police activity.” Colorado v.

Connelly, 479 U.S. 157, 167, 107 S. Ct. 515, 522 (1986). We gauge voluntariness


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“in light of the totality of the circumstances” to determine whether the statements

were “the product of an essentially free and unconstrained choice.” Hubbard v.

Haley, 317 F.3d 1245, 1252–53 (11th Cir. 2003) (quotation marks omitted).

      Cordera relies on the Supreme Court’s decisions in Beecher v. Alabama, 389

U.S. 35, 88 S. Ct. 189 (1967), and Mincey v. Arizona, 437 U.S. 385, 98 S. Ct.

2408 (1978), to argue that his statements were involuntary. In the Beecher case,

the police obtained a confession from the defendant only after he was shot in the

leg, two officers each pointed loaded guns toward his head, one of the officers

threatened to kill him, and the other officer fired his rifle next to his ear. Beecher,

389 U.S. at 36–37, 88 S. Ct. at 190. The defendant reaffirmed his confession in the

prison hospital while in intense pain and heavily sedated from frequent morphine

injections. Id. The police obtained a confession from the defendant in the Mincey

case while he was in the hospital with a gunshot wound, hooked up to various

tubes to help him breath, receiving intravenous drugs, and unable to talk because of

the tubes (he wrote down his responses). Mincey, 437 U.S. at 396, 398–401, 98 S.

Ct. at 2415–18. The defendant confessed only after the officer had interviewed

him for four hours, even though he repeatedly asked the officer to stop the

interrogation until he could get a lawyer. Id.

      The facts surrounding Cordera’s interview differ significantly from the facts

of those cases. The detectives’ conduct does not even begin to approach that of the


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officers in the Beecher case. The Mincey case is also not on point. Cordera was

alert and able to speak, he never asked for the interview to stop, and he never asked

for a lawyer. The fact that he was depressed at the time of the interview is not

enough, without more, to render his statements involuntary. See Connelly, 479

U.S. at 162–67, 107 S. Ct. at 519–22. Because the facts do not indicate that his

statements were the product of “coercive police activity,” id. at 167, 107 S. Ct. at

522, the state court’s decision that his statements were voluntary was neither

contrary to, nor an unreasonable application of, clearly established federal law.

      AFFIRMED.




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