     Case: 12-60325      Document: 00512525257         Page: 1    Date Filed: 02/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit


                                      No. 12-60325
                                                                                     FILED
                                                                              February 6, 2014
                                                                                Lyle W. Cayce
DESMOND D. WALTON                                                                    Clerk

                                                 Petitioner-Appellant
v.

JACQUELYN BANKS
                                                 Respondent-Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:09-CV-117


Before JONES, ELROD and HAYNES, Circuit Judges.
PER CURIAM:*
       Pursuant to a grant of a certificate of appealability, Desmond D. Walton,
Mississippi prisoner # 113961, appeals the district court’s denial of his
28 U.S.C. § 2254 petition on the issue whether the trial court’s refusal to
suppress the videotape of his custodial statement warrants habeas relief. For
the following reasons, we AFFIRM the district court’s judgment.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                     No. 12-60325
                                            I.
      Walton was convicted by a jury of murdering drug dealer Patrick
Anderson and was sentenced to life imprisonment.                 See Walton v. State,
998 So. 2d 1011 (Miss. Ct. App. 2007). His conviction was affirmed by the state
supreme court. Walton v. State, 998 So. 2d 971 (Miss. 2008).
      Aside from his videotaped statement, in which Walton eventually
asserted that he had shot Anderson in self defense, the jury heard from two
eyewitnesses that Walton shot Anderson and a third witness to whom
Anderson confessed. The facts are stated in depth by the state court opinions
and the opinions of the federal magistrate judge and district judge. 1
      The only issue before us, which Walton has consistently pursued,
concerns whether relief should be granted because the trial court erroneously
admitted his statement that was videotaped without Miranda warnings.
Walton was taken into custody and, while in custody, he was interviewed on
two occasions. The interviews were videotaped but not transcribed. An agent
with the Drug Enforcement Agency conducted the first interview concerning
incidents unrelated to the murder of Anderson. This interview was terminated
when Walton stated he did not want to continue to answer questions. This
videotape was suppressed by the trial judge after the agent’s refusal to appear
in Mississippi to testify. After this interview, as Walton was being escorted
back to his cell, a police officer told him that if he were going to make a
statement to help himself, “now was the time.” The second interview was
conducted by a detective with the Hattiesburg police department. For most of
the interview, Walton maintained his innocence. Walton then claimed that he
had gone to Anderson’s house to buy drugs and that, during the drug exchange,


      1  The district judge adopted the magistrate judge’s report after de novo review and
with additional comments.

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                                    No. 12-60325
Anderson pulled out a gun and Walton shot him in self-defense. This interview
was played for the jury by the prosecution, and the defense used portions when
cross-examining adverse witnesses. Walton did not, however, take the stand.
        Walton appealed his conviction and sentence, arguing, inter alia, that
this    custodial   statement    should    have    been   suppressed.       Walton,
998 So. 2d at 1014-15. The state conceded error in admission of the statement,
arguing that the error was harmless in light of overwhelming evidence against
Walton. Both state appellate courts agreed with this analysis.
        The Mississippi Supreme Court determined that “even without the
videotaped statement, based on the overwhelming weight of the evidence of
Walton’s guilt as revealed in the record before us, a jury would have found
beyond a reasonable doubt that Walton was guilty of the murder of Anderson.”
Walton, 998 So. 2d at 976 (citing, inter alia, Chapman v. California,
386 U.S. 18, 22, 87 S. Ct. 824, 827 (1967)). The Mississippi Supreme Court
specifically noted the following:
              Three of the four co-defendants present on the day of the
        murder testified that Walton was the shooter. Two of these co-
        defendants were eyewitnesses to the murder. Another co-
        defendant, Michael Love, testified that Walton admitted to being
        the shooter. Michael Love recalled Walton saying, “Man I did him
        [Anderson]; I had to do him.” Had the videotape [of Walton’s
        interview] been properly excluded, the jurors still would have had
        the opportunity to assign the same amount of weight and
        credibility to the witnesses; therefore, the overwhelming weight of
        the evidence points to the guilt of the accused. It is not the role of
        this Court to usurp the jury as final arbiter of the weight and
        credibility assigned to the testimony of witnesses. This Court
        repeatedly has held that the proper role of jurors is to resolve
        factual disputes by assigning the proper credibility to witnesses[.]
Id.
        A dissent to the Mississippi Supreme Court’s majority opinion concluded
that the evidence in the case–without Walton’s statement—was not

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                                  No. 12-60325
“overwhelming”; “[o]ther than the admitted participants to the crime, there
were no witnesses, and there was no physical evidence pointing to Walton.”
Id. at 978.    The dissent further noted that, under Mississippi law, the
testimony of an accomplice must be viewed with “great caution and suspicion.”
Id. (internal quotation and citation omitted). The dissent therefore concluded
that the admission of the videotaped statements was not harmless error. Id.
      Having exhausted state remedies, Walton contended in the instant
§ 2254 petition that the trial court erred in refusing to suppress the videotape
of his custodial statements.    The magistrate judge recommended denying
Walton’s § 2254 petition.    Walton v. Banks, 2012 WL 899296 (S.D. Miss.
Jan. 5, 2012).   The magistrate judge found that the trial court’s error in
admitting Walton’s non-Mirandized custodial statement did not have a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Id. at *4 (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722
(1993)). In addition to the evidence noted by the Mississippi Supreme Court,
the magistrate judge noted the following. Any inconsistencies in the witnesses’
testimony were pointed out to the jury by defense counsel during cross-
examination. The co-defendants’ statements were given before any deals were
offered or charges were brought by the grand jury.           The co-defendants’
statements were given before they were housed in a cell together. Defense
counsel spent substantial time cross-examining the witnesses while playing
portions of the video to point out that Walton was worn down after hours of
interrogation and that prior to stating that he shot Anderson in self-defense,
he repeatedly denied shooting anyone. Counsel pointed out that Walton was
threatened with the death penalty by the interrogators, even though his crime
did not actually carry the death penalty. Finally, the jury was instructed to
determine the weight of the video statement in light of the manner it was


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                                  No. 12-60325
obtained and that they should disregard it if they believed it to be untruthful,
inaccurate, or involuntary. Walton objected to the magistrate judge’s report.
      As noted above, the district court, after conducting a de novo review,
adopted the report, and dismissed Walton’s § 2254 petition with prejudice.
                                       II.
      In an appeal from the denial of habeas relief, this court reviews the
district court’s conclusions de novo and its findings of fact for clear error.
Austin v. Cain, 660 F.3d 880, 884 (5th Cir. 2011), cert. denied, ___ U.S. ___,
132 S. Ct. 1914 (2012). Our inquiry is guided by the highly deferential review
standard afforded to state court adjudications under AEDPA, 28 U.S.C. § 2254.
See Hearn v. Thaler, 669 F.3d 265, 271 (5th Cir. 2012). Under AEDPA, a
federal court may not grant habeas relief on a claim that was adjudicated on
the merits by a state court unless the state court decision: (1) “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1). “Clearly established Federal law” refers
to holdings of the Supreme Court at the time of the state court’s decision. See
Williams v. Taylor, 529 U.S. 362, 379-84, 120 S. Ct. 1495, 1505-08 (2000).
Factual findings by the state court “are presumed to be correct, and a petitioner
has the burden of rebutting this presumption with clear and convincing
evidence.”   Brown v. Dretke, 419 F.3d 365, 371 (5th Cir. 2005) (citing
28 U.S.C. § 2254(e)(1)).




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                                      No. 12-60325
       The issue before us, put in terms of the AEDPA standard of review, is
not whether the state courts’ determination of harmlessness was incorrect, but
whether the harmlessness decision itself was unreasonable. 2
       In Fry v. Pliler, the Court held that the more deferential standard
announced in Brecht applies on habeas review to determine the harmlessness
of trial errors instead of the tougher standard espoused in Chapman. 3 Brecht
requires a showing of actual prejudice: “substantial and injurious effect on the
jury’s verdict,” Brecht, 507 U.S. at 623, 113 S. Ct. 1714.
       The Mississippi Supreme Court correctly asked on direct review
“whether the error was harmless beyond a reasonable doubt upon review of the
weight of the evidence,” based on the test set forth in Chapman. Walton,
998 So. 2d at 976. The Mississippi Supreme Court conducted a de novo review
of the record, carefully “examin[ing] the facts, the trial context of the error, and
the prejudice thereby as juxtaposed against the strength of the evidence of
defendant’s guilt.” Walton, 998 So. 2d at 1014.
       Walton has not offered a convincing argument that this review was
contrary to, or involved an unreasonable application of, clearly established
Federal law.      On appeal, Walton argues only that the testimony of key
witnesses was conflicting and contradictory.               Walton adds that the co-
defendants’ testimony was not sufficient evidence to convict him for murder.
While recognizing the persuasive power of a defendant’s confession, the district



       2  Fry v. Pliler, 551 U.S. 112, 119, 127 S. Ct. 2321, 2326 (2007) (citing Mitchell v.
Esparza, 540 U.S. 12, 124 S. Ct. 7 (2003) (per curiam)). Walton persists in asserting that
because the videotape is conceded to have been erroneously admitted, the violation
necessitates habeas relief. This is wrong. The state courts had to decide and did decide
whether the wrongfully admitted evidence prejudiced his defense.

       3   Chapman examined harmlessness beyond a reasonable doubt. 386 U.S. at 24,
87 S. Ct. at 828.

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                                       No. 12-60325
court held that the record did not support Walton’s contention.                       Indeed,
multiple witnesses stated that they witnessed Walton shoot the victim or that
Walton admitted to shooting the victim. These statements were given before
any deals were offered or charges brought by the grand jury and prior to the
co-defendants’ being housed in a cell together. There were inconsistencies in
the testimony and statements given by co-defendants, and there was no
physical evidence linking Walton to the shooting, but the bias and minor
inconsistencies were developed in cross-examination. Without repeating what
all the state and federal reviewing courts have said about the evidence, we
conclude that the state courts were not unreasonable in determining that the
error in admitting Walton’s statement did not have a substantial and injurious
effect on the verdict. 4
                                             III.
        For these reasons, the judgment denying Walton’s § 2254 motion is
AFFIRMED.




       4  Walton also filed a COA on June 4, 2012, in which he sought an evidentiary hearing
“as this court may deem necessary or . . . appropriate” on “the issue of the videotape statement
and the surrounding evidence the respondent [has] against Walton.” We are confined to the
state court record in habeas review absent very serious deficiencies. Cullen v. Pinholster, ___
U.S. ____, 131 S. Ct. 1388 (2011); Lewis v. Thaler, 701 F.3d 783, 790 (5th Cir. 2012). No such
deficiencies were exposed; the motion was properly denied.
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