Elkins v. Secretary, DOC (Lee County)

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

RICHARD CARL ELKINS,

Petitioner,

v. Case No: 2:17-cv-286-FtM-29MRM

SECRETARY, DOC,

Respondent.

OPINION AND ORDER

Petitioner Richard Carl Elkins (petitioner or Elkins),

represented by counsel, filed a Petition for Writ of Habeas Corpus

By a Person in State Custody Under 28 USC § 2254. (Doc. #1,

Petition). Elkins, a Florida prisoner, challenges his convictions

for the first-degree premeditated murder of Obed Flores-Fuentes

and a lesser included offense of battery, entered by the Twentieth

Judicial Circuit Court in and for Lee County in Case No. 07-CF-

015298. (Doc. #1, p. 2; Doc. #9, p. 2.) Elkins asserts that the

state court’s denial of a motion to suppress a post-arrest

statement made to detectives at the sheriff’s office was contrary

to federal law and/or based upon an unreasonable determination of

certain facts. (Doc. #1, pp. 11-14.) Respondent filed a Response

(Doc. #9, Response) which included the state court record (Docs.

## 11-15), and Elkins filed a Reply. (Doc. #18). For the reasons

set forth below, the Petition for Writ of Habeas Corpus is denied.

I. Applicable Federal Habeas Corpus Principles

The statutory authority of federal courts to issue habeas

corpus relief for persons in state custody is set forth in 28

U.S.C. § 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). The AEDPA requires a state prisoner

seeking federal habeas relief to first “exhaus[t] the remedies

available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A).

If the state courts do not adjudicate the prisoner's federal claim

“on the merits,” a de novo standard of review applies in the

federal habeas proceeding; if the state courts do adjudicate the

claim on the merits, then the AEDPA mandates a deferential, rather

than de novo, review. Kernan v. Hinojosa, 136 S. Ct. 1603, 1604

(2016).

This deferential standard is set forth in § Section 2254(d),

which provides:

“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.

28 U.S.C. § 2254(d). This standard is both mandatory and

intentionally difficult to satisfy. Sexton v. Beaudreaux, 585

U.S. ___, 138 S. Ct. 2555, 2558 (2018); White v. Woodall, 572 U.S.

415, 419 (2014).

“Clearly established federal law” consists of the governing

legal principles in the decisions of the United States Supreme

Court when the state court issued its decision. White, 572 U.S.

at 419. Habeas relief is appropriate only if the state court

decision was “contrary to, or an unreasonable application of,”

that federal law. 28 U.S.C. § 2254(d)(1). A decision is “contrary

to” clearly established federal law if the state court either: (1)

applied a rule that contradicts the governing law set forth by

Supreme Court case law; or (2) reached a different result from the

Supreme Court when faced with materially indistinguishable facts.

Mitchell v. Esparza, 540 U.S. 12, 16 (2003); Ward v. Hall, 592

F.3d 1144, 1155 (11th Cir. 2010).

A state court decision involves an “unreasonable application”

of the Supreme Court’s precedents if the state court correctly

identifies the governing legal principle, but applies it to the

facts of the petitioner’s case in an objectively unreasonable

manner, Brown v. Payton, 544 U.S. 133, 134 (2005); Bottoson v.

Moore, 234 F.3d 526, 531 (11th Cir. 2000), or “if the state court

either unreasonably extends a legal principle from [Supreme Court]

precedent to a new context where it should not apply or

unreasonably refuses to extend that principle to a new context

where it should apply.” Bottoson, 234 F.3d at 531 (quoting

Williams, 529 U.S. at 406.) “A state court’s determination that

a claim lacks merit precludes federal habeas relief so long as

fair-minded jurists could disagree on the correctness of the state

court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

See also Nance v. Warden, Ga. Diagnostic Prison, 922 F.3d 1298,

1301 (11th Cir. 2019) (“To justify federal habeas relief, the state

court’s decision must be so lacking in justification that there

was an error . . . beyond any possibility for fairminded

disagreement.”)(internal quotation marks omitted).

When reviewing a claim under § 2254(d), any “determination of

a factual issue made by a State court shall be presumed to be

correct[,]” and the petitioner bears “the burden of rebutting the

presumption of correctness by clear and convincing evidence.” 28

U.S.C. § 2254(e)(1); Burt v. Titlow, 134 S. Ct. 10, 15 (2013) (“[A]

state-court factual determination is not unreasonable merely

because the federal habeas court would have reached a different

conclusion in the first instance.”) (quoting Wood v. Allen, 558

U.S. 290, 293 (2010)). See also Morrow v. Warden, 886 F.3d 1138,

1146 (11th Cir. 2018) (the court must presume that the State

court’s determination of a factual issue is correct, and petitioner

must rebut presumption by clear and convincing evidence).

For the deferential § 2254(d) standard to apply there must

have been an “adjudication on the merits” in state court. An

adjudication on the merits does not require there be an opinion

from the state court explaining the state court's reasoning.

Harrington v. Richter, 562 U.S. 86, 98 (2011). “When a federal

claim has been presented to a state court and the state court has

denied relief, it may be presumed that the state court adjudicated

the claim on the merits in the absence of any indication or state-

law procedural principles to the contrary.” Richter, 562 U.S. at

99. “The presumption may be overcome when there is reason to

think some other explanation for the state court's decision is

more likely.” Richter, 562 U.S. at 99–100. This presumption applies

whether the state court fails to discuss the claims or discusses

some claims but not others. Johnson v. Williams, 568 U.S. 289,

293, 298-301 (2013).

While such a decision is an “adjudication on the merits,” the

federal habeas court must still determine the state court's reasons

for its decision in order to apply the deferential standard. When

the relevant state-court decision on the merits is not accompanied

by its reasons,

the federal court should “look through” the

unexplained decision to the last related

state-court decision that does provide a

relevant rationale. It should then presume

that the unexplained decision adopted the same

reasoning. But the State may rebut the

presumption by showing that the unexplained

affirmance relied or most likely did rely on

different grounds than the lower state court's

decision, such as alternative grounds for

affirmance that were briefed or argued to the

state supreme court or obvious in the record

it reviewed.

Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The federal

court “looks through” the silent state court decision “for a

specific and narrow purpose—to identify the grounds for the higher

court's decision, as AEDPA directs us to do.” Id. 138 S. Ct. at

1196.

II. Timeliness, Exhaustion, and Evidentiary Hearing

Respondent concedes that the Petition is timely and that the

claim for relief was properly exhausted. (Doc. #9, pp. 8, 11;

Doc. #18, p. 1.) Petitioner does not request an evidentiary

hearing, and the Court finds the facts are well-developed in the

record, so an evidentiary hearing is not otherwise warranted.

Schriro v. Landrigan, 550 U.S. 465, 474 (2007);28 U.S.C. §

2254(e)(2).

III. Factual and Procedural Overview

On June 15, 2007, a grand jury in Lee County, Florida indicted

Elkins for the February 28, 2007, death of Obed Flores-Fuentes

(Flores-Fuentes). Elkins was indicted for premeditated murder

while engaged in an attempt to perpetrate a sexual battery by

striking Flores-Fuentes in the head and neck with a shovel or other

blunt object (Count I), and for committing a sexual battery upon

Flores-Fuentes without his consent by force and in the process of

using or threatening use of a deadly weapon or actual physical

force likely to cause injury (Count II). (Doc. #11-1, Exh. 1,

Indictment.)

On August 19, 2010, Elkins filed a Motion to Suppress

Statement (Doc. #11-1, Exh. 2) in the trial court. The motion

sought to suppress all written and oral statements obtained from

petitioner by the police or other State agents on the grounds that

Elkins was arrested without probable cause, the statements were

not freely and voluntarily given, and his Miranda1 rights waiver

was not free and voluntary.

On October 7, 2010, an evidentiary hearing on the motion was

held before the Honorable Margaret Steinbeck, Circuit Court Judge.

(Doc. #2-1, Exh. 1.) Defense counsel clarified that the

suppression motion challenged two custodial statements made by

Elkins: (1) a statement made in a police car while Elkins was

being transported to the Sheriff’s office; and (2) a statement

made to detectives during interrogation at the Lee County Sheriff’s

office. (Doc. #2-1, Exh. 1, p. 24.)2 As discussed in more detail

below, the motion to suppress was denied in material respects.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).

2 Where available, the citations to individual page numbers

refer to the original page numbers on the exhibits and transcripts.

The case proceeded to jury trial on October 25 through 28,

2010. (Doc. #11-1, Exh. 5.) On October 28, 2010, a jury returned

guilty verdicts of first degree murder as to Count I and the

lesser-included offense of battery as to Count II. (Doc. #14-1,

Exh. 6.) Elkins was sentenced to life imprisonment on the murder

conviction and time-served on the battery conviction. (Doc. #14-

1, Exh. 7.)

On November 8, 2010, Elkins filed a timely direct appeal.

Through appointed counsel, Elkin raised three issues on direct

appeal. Appellate counsel summarized the relevant claim as

follows:

ISSUE I

The trial court committed reversible error by

denying the appellant's motions to suppress

his confessions. The appellant's warrantless

arrest in the curtilage of the residence or

screened lanai of the house was unlawful, and

the resulting confessions should be suppressed

as fruits of his unlawful arrest. Moreover,

the defendant was too intoxicated to

understand the warning and waive his rights.

(Doc. #14-1, Exh. 8, p. 352.) The State filed an Answer Brief

(Doc. #15-1, Exh. 9.) The Second District Court of Appeal per

curiam affirmed the convictions and sentences. Elkins v. State,

88 So. 3d 941 (Fla. 2d DCA 2012).3

3 Although not relevant to the § 2254 petition before the

Court, Elkins filed a post-conviction motion under Florida Rule of

Criminal Procedure 3.850, raising three grounds of ineffectiveness

of counsel. (Doc. #15-1, Exh. 11.) The State filed a Response,

IV. Section 2254 Issues and Analysis

A. State Court Order on Motion to Suppress

On October 18, 2010, after an evidentiary hearing, the state

trial court issued its written Order Denying (In Part) Motion to

Suppress. (Doc. #2-4, Exh. 4.) The state court made the following

findings of fact:

At approximately 7 a.m. on February 28,

2007, Detective Ryan of the Lee County

Sherriff’s Office (LCSO) arrived at a crime

scene behind a shopping center near the

intersection of Bonita Beach Road and Highway

41 in Lee County. Earlier that morning, LCSO

had received a “911” call from a worker who

reported the discovery of a body in that

location. Detective Ryan was assigned as the

lead detective to investigate. He observed

the nude and battered body of the decedent, a

Hispanic male, later identified as Obed

Flores. Detective Ryan also observed blood

spatter on the walls of the shopping center.

Within hours, Detective Ryan learned that

an individual named Christopher Maner had

called the Sheriff’s office to report that he

had information about the case, Detective Ryan

met with Mr. Maner at Mr. Maner’s residence

and took a statement from him.

In that statement, Mr. Maner related that

he and his friend, Richard Elkins (the

Defendant), had been at a bar in the shopping

center the night of February 27-28, 2007,

drinking and playing pool. Mr. Maner said

that at one point in the evening he and the

and Elkins filed a Reply. (Id., Exhs. 12, 13.) On July 31, 2015,

an Order Denying Defendant’s 3.850 Motion (Doc. #15-1, Exh. 14)

was issued by the State Circuit Court. On April 1, 2016, the

Second District Court of Appeals per curiam affirmed the decision.

Elkins v. State, 209 So. 3d 578 (Fla. 2d DCA 2016). The Mandate

issued on July 20, 2016. (Doc. #15-1, Exh. 15.)

Defendant went outside, behind the bar, to

smoke marijuana. Mr. Maner said they were

approached outside by an unknown Hispanic male

and they offered to smoke with him. At some

point, the Defendant and the unknown Hispanic

male had a physical altercation and the

Defendant knocked the Hispanic male

unconscious. Mr. Maner and the Defendant went

back into the bar and paid their tab. As they

were leaving, the Defendant reportedly told

Mr. Maner that he was going to “finish [the

Hispanic male] off.” According to Mr. Maner,

they exited out the back door. The Defendant

got a shovel and beat the Hispanic male with

it. Mr. Maner and the Defendant then

reportedly left the shopping center on foot.

Mr. Maner told Detective Ryan that the

Defendant discarded the shovel on the south

side of Bonita Beach Road, hiding it in

shrubs. The Defendant and Mr. Maner walked

to a friend’s house nearby, where they both

went to sleep. Mr. Maner woke up and walked

home, leaving the Defendant there sleeping.

Mr. Maner led Detective Ryan to the

location where he claimed the shovel was

discarded, and Detective Ryan recovered a

shovel. The shovel appeared consistent with

the injuries Detective Ryan observed on the

body of Mr. Flores.

Mr. Maner then took Detective Ryan to the

friend’s house (which was a short walking

distance from the shopping center) where he

said he had left the Defendant sleeping

earlier that morning. Additional law

enforcement units were called to the scene.

Sometime before noon, the Defendant was

arrested at the friend’s house.

At the time of the arrest, the Defendant

was discovered on a screened lanai

(approximately 10 feet wide by 15 feet long)

at the back side of the house, in the company

of an unknown female. The officers, some in

plain clothes and some in uniform, walked

around to the back side of the house and

clearly observed the Defendant on the lanai.

The Defendant did not resist in any way and

was arrested (handcuffed and placed in the

back of Detective Craven’s patrol car for

transport) without incident.

Detective [Craven] and an LCSO trainee

transported the Defendant from the residence

where he was arrested to the LCSO

headquarters. The Defendant was not

interviewed before being placed in the patrol

car and he was not advised of his Miranda

rights at that time. The conversations in the

patrol vehicle during the transport of the

Defendant to the LCSO headquarters were

recorded on an audio recording. A copy of the

recording was introduced as part of State’s

Exhibit 1.

During the transport to the LCSO

headquarters, in response to an inquiry as to

whether he was “all right back there,” the

Defendant asked when he could give his

confession. Without waiting for an answer,

the Defendant then blurted out his version of

the confrontation with Mr. Flores. In

response, after asking the Defendant his name,

Detective Craven told the Defendant that they

were taking the Defendant to the Major Crimes

Unit at the LCSO, where the Defendant would

talk to “the detective.” Other than asking

how old the Defendant was, and whether he

needed air or was otherwise okay, there was

little or no conversation between the

Defendant and the officers during the rest of

the trip.

At approximately 2:25 p.m., February 28,

2007, the Defendant was interviewed by

Detective Ryan and Detective Mike Carr at the

LCSO headquarters. That interview was

recorded and the audio recording was

introduced as part of State’s Exhibit 1.

There were no threats or promises made by the

Detectives to the Defendant before the

recording and no statements made after the

recording.

At the beginning of the recorded

interview, Detective Ryan read the Defendant

his rights pursuant to Miranda and the

Defendant acknowledged his understanding and

stated that he wished to talk to the

Detectives. As stated above, the entire

recorded conversation was introduced into

evidence and there is no need to summarize or

describe it here.

(Doc. #2-4, Exh. 4, pp. 1-3.) These factual determinations are

amply supported by the record at the suppression hearing. In any

event, neither party challenges these factual findings by the state

court judge.

In relevant part, the state court concluded that: (1) Elkin

knowingly and intelligently waived his Fifth Amendment privilege

and his right to counsel, and chose to speak with the officers at

the Sheriff’s office; (2) probable cause to arrest Elkin was

established, despite the possible self-serving nature of Mr.

Maner’s statements prior to his own arrest; (3) for various

reasons, Elkins’ warrantless arrest did not violate Payton v. New

York, 445 U.S. 573 (1980); (4) Elkin had no reasonable expectation

of privacy in the back of the patrol car during transport to the

LCSO headquarters, Elkins’ initial statements in the vehicle were

spontaneous, and therefore not a Miranda violation, but the other

statements made during the ride were technically in response to

questions, and therefore those statements were suppressed because

no Miranda warnings had been given; and (5) the State had carried

its burden of showing that Elkins’ statements were freely and

voluntarily given. (Doc. #2-4, Exh. 4, pp. 4-5.)

B. Petitioner’s § 2254 Claims

In the § 2254 proceeding, petitioner challenges only the state

court’s determination that the statement given at the Sheriff’s

office was admissible. As to this statement, petitioner asserts

that the State Court’s determinations that Elkins had waived his

Miranda rights and that the statement was given freely and

voluntarily were contrary to and an unreasonable application of

clearly established federal law, and were based on an unreasonable

determination of certain facts. (Doc. #1, pp. 1-14.)4

Florida’s Second District Court of Appeal affirmed the trial

court’s denial of the motion to suppress without written opinion.

(Doc. #15-1, Exh. 10). Therefore, as discussed earlier, a federal

habeas court “looks through” the Florida appellate court’s per

curiam order, presumes the unexplained appellate order adopted the

reasoning of the trial court’s post-conviction decision, and

evaluates that postconviction decision. Wilson, 138 S. Ct. at

1192. Accordingly, the focus of the § 2254 petition is the Order

entered by Judge Steinbeck denying the motion to suppress.

4 The § 2254 petition does not challenge the existence of

probable cause to arrest petitioner.

(1) Petitioner’s Waiver of Miranda Rights

Petitioner argues that the state trial judge failed to

properly apply well-established federal law to determine whether

he had waived his Miranda rights, relying largely on Moran v.

Burbine, 475 U.S. 412 (1986). Petitioner asserts that the waiver

of Miranda rights must be both voluntary and “made with a full

awareness of both the nature of the right being abandoned and the

consequences of the decision to abandon it.” (Doc. #1, p. 12,

quoting Burbine, at 421.) Elkins argues that the state court

ignored the second prong and added a reliability analysis instead,

and therefore the decision was contrary to clearly established

federal law within the meaning of § 2254(d)(1). (Id., pp. 13-14.)

The Supreme Court discussed the waiver of Miranda rights at

some length in Berghuis v. Thompkins:

Even absent the accused's invocation of the

right to remain silent, the accused's

statement during a custodial interrogation is

inadmissible at trial unless the prosecution

can establish that the accused “in fact

knowingly and voluntarily waived Miranda

rights” when making the statement. Butler, 441

U.S. at 373, 99 S. Ct. 1755. The waiver inquiry

“has two distinct dimensions”: waiver must be

“voluntary in the sense that it was the

product of a free and deliberate choice rather

than intimidation, coercion, or deception,”

and “made with a full awareness of both the

nature of the right being abandoned and the

consequences of the decision to abandon it.”

Burbine, supra at 421, 106 S. Ct. 1135.

. . . .

The course of decisions since Miranda,

informed by the application of Miranda

warnings in the whole course of law

enforcement, demonstrates that waivers can be

established even absent formal or express

statements of waiver that would be expected

in, say, a judicial hearing to determine if a

guilty plea has been properly entered. Cf.

Fed. R. Crim. P. 11. The main purpose of

Miranda is to ensure that an accused is

advised of and understands the right to remain

silent and the right to counsel. See Davis,

supra at 460, 114 S. Ct. 2350; Burbine, supra

at 427, 106 S. Ct. 1135. Thus, “[i]f anything,

our subsequent cases have reduced the impact

of the Miranda rule on legitimate law

enforcement while reaffirming the decision's

core ruling that unwarned statements may not

be used as evidence in the prosecution's case

in chief.” Dickerson v. United States, 530

U.S. 428, 443–444, 120 S. Ct. 2326, 147

L.Ed.2d 405 (2000).

One of the first cases to decide the meaning

and import of Miranda with respect to the

question of waiver was North Carolina v.

Butler. The Butler Court, after discussing

some of the problems created by the language

in Miranda, established certain important

propositions. Butler interpreted the Miranda

language concerning the “heavy burden” to show

waiver, 384 U.S. at 475, 86 S. Ct. 1602, in

accord with usual principles of determining

waiver, which can include waiver implied from

all the circumstances. See Butler, supra at

373, 376, 99 S. Ct. 1755. And in a later case,

the Court stated that this “heavy burden” is

not more than the burden to establish waiver

by a preponderance of the evidence. Colorado

v. Connelly, 479 U.S. 157, 168, 107 S. Ct.

515, 93 L. Ed. 2d 473 (1986).

The prosecution therefore does not need to

show that a waiver of Miranda rights was

express. An “implicit waiver” of the “right to

remain silent” is sufficient to admit a

suspect's statement into evidence. Butler,

supra at 376, 99 S. Ct. 1755. Butler made clear

that a waiver of Miranda rights may be implied

through “the defendant's silence, coupled with

an understanding of his rights and a course of

conduct indicating waiver.” 441 U.S. at 373,

99 S. Ct. 1755. The Court in Butler therefore

“retreated” from the “language and tenor of

the Miranda opinion,” which “suggested that

the Court would require that a waiver . . . be

‘specifically made.’” Connecticut v. Barrett,

479 U.S. 523, 531–532, 107 S. Ct. 828, 93 L.

Ed. 2d 920 (1987) (Brennan, J., concurring in

judgment).

If the State establishes that a Miranda

warning was given and the accused made an

uncoerced statement, this showing, standing

alone, is insufficient to demonstrate “a valid

waiver” of Miranda rights. Miranda, supra at

475, 86 S. Ct. 1602. The prosecution must make

the additional showing that the accused

understood these rights. See Colorado v.

Spring, 479 U.S. 564, 573–575, 107 S. Ct. 851,

93 L. Ed. 2d 954 (1987); Barrett, supra at

530, 107 S. Ct. 828; Burbine, 475 U.S. at 421–

422, 106 S. Ct. 1135. Cf. Tague v. Louisiana,

444 U.S. 469, 469, 471, 100 S. Ct. 652, 62 L.

Ed. 2d 622 (1980) (per curiam) (no evidence

that accused understood his Miranda rights);

Carnley v. Cochran, 369 U.S. 506, 516, 82 S.

Ct. 884, 8 L. Ed. 2d 70 (1962) (government

could not show that accused “understandingly”

waived his right to counsel in light of

“silent record”). Where the prosecution shows

that a Miranda warning was given and that it

was understood by the accused, an accused's

uncoerced statement establishes an implied

waiver of the right to remain silent.

Although Miranda imposes on the police a rule

that is both formalistic and practical when it

prevents them from interrogating suspects

without first providing them with a Miranda

warning, see Burbine, 475 U.S. at 427, 106 S.

Ct. 1135, it does not impose a formalistic

waiver procedure that a suspect must follow to

relinquish those rights. As a general

proposition, the law can presume that an

individual who, with a full understanding of

his or her rights, acts in a manner

inconsistent with their exercise has made a

deliberate choice to relinquish the protection

those rights afford. See, e.g., Butler, supra

at 372–376, 99 S. Ct. 1755; Connelly, supra at

169–170, 107 S. Ct. 515 (“There is obviously

no reason to require more in the way of a

‘voluntariness' inquiry in the Miranda waiver

context than in the [due process] confession

context”). The Court's cases have recognized

that a waiver of Miranda rights need only meet

the standard of Johnson v. Zerbst, 304 U.S.

458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461

(1938). See Butler, supra at 374–375, 99 S.

Ct. 1755; Miranda, supra at 475–476, 86 S. Ct.

1602 (applying Zerbst standard of intentional

relinquishment of a known right). As Butler

recognized, 441 U.S. at 375–376, 99 S. Ct.

1755, Miranda rights can therefore be waived

through means less formal than a typical

waiver on the record in a courtroom, cf. Fed.

R. Crim. P. 11, given the practical

constraints and necessities of interrogation

and the fact that Miranda's main protection

lies in advising defendants of their rights,

see Davis, 512 U.S. at 460, 114 S. Ct. 2350;

Burbine, 475 U.S. at 427, 106 S. Ct. 1135.

Berghuis v. Thompkins, 560 U.S. 370, 382–85 (2010). Applying

these principles, the Supreme Court found there was a valid waiver

of Miranda rights.

There is no basis in this case to conclude

that he did not understand his rights; and on

these facts it follows that he chose not to

invoke or rely on those rights when he did

speak. First, there is no contention that

Thompkins did not understand his rights; and

from this it follows that he knew what he gave

up when he spoke. See id., at 421, 106 S. Ct.

1135. There was more than enough evidence in

the record to conclude that Thompkins

understood his Miranda rights.

. . . .

Second, Thompkins' answer to Detective

Helgert's question about whether Thompkins

prayed to God for forgiveness for shooting the

victim is a “course of conduct indicating

waiver” of the right to remain silent. Butler,

supra at 373, 99 S. Ct. 1755. If Thompkins

wanted to remain silent, he could have said

nothing in response to Helgert's questions, or

he could have unambiguously invoked his

Miranda rights and ended the interrogation.

The fact that Thompkins made a statement about

three hours after receiving a Miranda warning

does not overcome the fact that he engaged in

a course of conduct indicating waiver. Police

are not required to rewarn suspects from time

to time. Thompkins' answer to Helgert's

question about praying to God for forgiveness

for shooting the victim was sufficient to show

a course of conduct indicating waiver. This is

confirmed by the fact that before then

Thompkins had given sporadic answers to

questions throughout the interrogation.

Third, there is no evidence that Thompkins'

statement was coerced. See Burbine, supra at

421, 106 S. Ct. 1135.

. . . .

In these circumstances, Thompkins knowingly

and voluntarily made a statement to police, so

he waived his right to remain silent.

Berghuis, 560 U.S. at 385–87.

Here, the state trial court found that Elkins “knowingly and

intelligently waived his privilege against self-incrimination and

the right to counsel, and chose to speak to the detectives at the

LCSO headquarters.” (Doc. #2-4, p. 3.) The state court further

found that petitioner’s statement was reliable and untainted by

the “prior un-warned statements in the patrol car during transport,

leading questions by the Detectives at the LCSO headquarters,

[Elkin’s] mental health, or intoxication.” (Id.) The state court

was not persuaded by the testimony of Dr. Alan J. Waldman and other

evidence that Elkins’ statements were involuntary or unreliable

due to the “reported prior brain injury and drug use”.5 (Id.)

The state court specifically found that Elkins’ statements were

free of coercion or deception.

As to the second prong, the state court did not add an

improper reliability factor, but noted that Dr. Waldman’s

testimony did not support a finding that Elkins was not aware of

his rights and the consequences of abandoning them.6 Elkins

answered questions in a lucid manner, even if he said several times

he forgot details. Dr. Waldman’s testimony was not supported by

any physical evidence or statement by Elkins that he was

intoxicated during the interview, and the decision was not contrary

to or based on unreasonable determination of the facts in light of

the evidence presented. The state court considered the “totality

5 Dr. Waldman noted that the mild head injuries could cause

problems with some abstract reasoning but that he did not “think

that it was particularly apparent that he would have those problems

from the head injuries.” (Doc. #2-1, Exh. 1, pp. 64-65.)

6 Dr. Waldman expressed concern about whether Elkins could

knowingly and intelligently waive his Miranda rights, but did not

unequivocally opine that he could not. (Doc. #2-1, Exh. 1, pp.

68-69.) On cross-examination, Dr. Waldman also agreed that any

memory issues didn’t necessarily mean that Elkins couldn’t

understand questions, including a Miranda warning. (Id., pp. 74-

75.)

of the circumstances” surrounding Elkin’s statements and found his

statements and Miranda waiver to be freely and voluntarily given.

The Court finds Elkins has not demonstrated that state

court's adjudication of this claim was contrary to clearly

established federal law, or based upon an unreasonable

determination of the facts. The Petition is denied. 28 U.S.C. §

2254(d).

V. Certificate of Appealability

A prisoner seeking a writ of habeas corpus has no absolute

entitlement to appeal a district court's denial of his petition.

28 U.S.C. § 2253(c)(1). Rather, a district court must first issue

a certificate of appealability (COA). “A [COA] may issue . . .

only if the applicant has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such

a showing, a petitioner must demonstrate that “reasonable jurists

would find the district court's assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)), or

that “the issues presented were adequate to deserve encouragement

to proceed further,” Miller–El v. Cockrell, 537 U.S. 322, 335–36

(2003) (citations omitted). Petitioner has not made the requisite

showing here and may not have a certificate of appealability on

either ground of his Petition.

Accordingly, it is hereby

ORDERED:

1. Petitioner's Petition for Writ of Habeas Corpus By a Person

in State Custody Under 28 USC § 2254 (Doc. #1) is DENIED.

2. The Clerk shall enter judgment, terminate all deadlines

and motions, and close the case.

DONE and ORDERED at Fort Myers, Florida, this 24th day

of November 2020.

é = Ap f

MAA) Z Pe

JGHH E. STEELE

Sq IGOR UNITED STATES DISTRICT JUDGE

Copies:

Counsel of Record