Petition for Writ of Certiorari — Jimmie L. Bowen, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

Supreme Court briefJul 17, 2024

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No. _______

_______________________________________

IN THE

Supreme Court of the United States

____________________________________

JIMMIE L. BOWEN,

Petitioner,

RICKY D. DIXON,

Secretary, Florida Department of Corrections,

Respondent.

_________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

_________________________________________________

PETITION FOR A WRIT OF CERTIORARI

_________________________________________________

ROBYN M. BLAKE

Counsel of Record for Petitioner

20295 N.W. 2nd Avenue,

Suite 215

Miami, Florida 33169

Telephone: (305) 651-5505

Facsimile: (305) 651-5525

Email: law@robynblake.com

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

QUESTIONS PRESENTED

Whether, under Rhode Island v. Innis and J.D.B. v.

North Carolina, a detective’s act of placing a juvenile

suspect in an interview room with a juvenile co-suspect

while secretly monitoring and recording the conversation,

in order to obtain a confession after the juvenile has

invoked his Miranda rights, violates the Fifth Amendment.

Whether, under 28 U.S.C. § 2254(d), and in light of J.D.B. v.

North Carolina, a State adjudication of a claim results in a

decision that is contrary to, or an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States, when it fails to

adequately consider a suspect’s status as a juvenile, for Fifth

Amendment purposes.

PARTIES TO THE PROCEEDINGS

The petitioner, Jimmie Bowen, was the habeas

petitioner in the district court and the appellee in the

Eleventh Circuit. The respondent is the State of

Florida.

RELATED PROCEEDINGS

Jimmie L. Bowen v. Ricky Dixon, Secretary,

Florida Department of Corrections, 92 F.4th 1328

(11th Cir. 2024).

Jimmie L. Bowen v. Ricky Dixon, Secretary,

Florida Department of Corrections, Case No. 19-

23952-CV-Williams (S.D. Fla. May 13, 2022) (Docket

Entry No. 20) (order granting a new trial ).

State of Florida vs. Jimmie Bowen, in the Circuit

Court of the Eleventh Judicial Circuit in and for

Miami-Dade County, Florida; Circuit Court Case No.

F08-46866B.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED........................................i

PARTIES TO THE PROCEEDINGS.........................ii

RELATED PROCEEDINGS.......................................ii

TABLE OF AUTHORITIES.......................................vi

PETITION FOR A WRIT OF CERTIORARI.............1

OPINIONS BELOW....................................................1

JURISDICTION..........................................................2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.........................................3

STATEMENT OF THE CASE....................................4

State Court Proceedings........................4

U.S. District Court Proceedings............7

REASONS FOR GRANTING THE PETITION.......10

Under Rhode Island v. Innis and J.D.B. v.

North Carolina, a detective’s act of placing a

juvenile suspect in an interview room with

a juvenile co-suspect while secretly

iii

monitoring and recording the conversation, in

order to obtain a confession, after the juvenile

has invoked his Miranda rights, violates the

Fifth Amendment..............................................10

II.

Under 28 U.S.C. § 2254(d), and in light of J.D.B.

v. North Carolina, a State adjudication of a

claim results in a decision that is contrary to, or

an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States, when it

fails to adequately consider a suspect’s status

as a juvenile, for Fifth Amendment purposes..29

CONCLUSION..........................................................32

APPENDICES

Appendix A: United States District Court,

Southern District of Florida, Order Following

Remand Denying Amended Petition for Writ

of Habeas Corpus (28 U.S.C. § 2254), April

25, 2024...........................................................1a

Appendix B: United States Court of Appeals

for the Eleventh Circuit, Judgment, April 15,

2024.................................................................5a

Appendix C: United States Court of Appeals

for the Eleventh Circuit, On Petition(s) for

Rehearing and Petition(s) for Rehearing

En Banc, April 5, 2024...................................6a

Appendix D: United States Court of Appeals

for the Eleventh Circuit, Opinion of the Court,

February 15, 2024..................................................7a

Appendix E: United States District Court,

Southern District of Florida, Order, May 13,

2022........................................................................26a

Appendix F: United States District Court,

Southern District of Florida, Report and

Recommendations of Magistrate Judge, July

29, 2020..................................................................33a

TABLE OF AUTHORITIES

Page(s)

Cases

Arizona v. Mauro,

481 U.S 520 (1987)......................9, 13, 14-18, 29, 32

Bowen v. Sec’y, FL Dept. of Corr.,

92 F.4th 1328 (11th Cir. 2024)................ii, 1, 13, 31

Edwards v. Arizona,

451 U.S. 477 (1981)................................................22

Fare v. Michael C.,

442 U.S. 707 (1979).........................................21, 31

Gallegos v. Colorado,

370 U.S. 49 (1962)............................................21, 31

Haley v. Ohio,

332 U.S. 596 (1948)..........................................21, 31

Harrington v. Richter,

562 U.S. 86 (2011)....................................................9

Illinois v. Perkins,

496 U.S. 292 (1990).....................9, 13, 18-20, 29, 32

In re: Gault,

387 U.S. 1 (1967)..............................................21, 32

J.D.B. v. North Carolina,

564 U.S. 261 (2011)..........i, 10, 12, 21, 22, 29, 31-32

Michigan v. Mosley,

423 U.S. 96 (1975)..........................13, 18, 22, 28, 32

Miller v. Fenton,

474 U.S. 104 (1985)................................................20

Miranda v. Arizona,

384 U.S. 436 (1966).................i, 4, 5, 8-21, 28-29, 31

Pennsylvania v. Muniz,

496 U.S. 582 (1990)..........................................12, 20

Rhode Island v. Innis,

446 U.S. 291 (1980)........................i, 9, 10-11, 13-15,

............................................................20, 27-28, 29, 32

Schneckloth v. Bustamonte,

412 U.S. 218 (1973)..........................................21, 31

United States v. Vazquez,

857 F. 2d 857 (1st Cir. 1988)..................................15

White v. Woodall,

572 U.S. 415 (2014) ................................................9

Withrow v. Williams,

507 U.S. 680 (1993).........................................21, 31

Williams v. Taylor,

529 U.S. 362 (2000)..........................................30-31

vii

Yarborough v. Alvarado,

541 U.S. 652 (2004).........................................21, 31

Statutes

28 U.S.C. § 1254(1)......................................................2

28 U.S.C. § 2254(d)(1)............................i, 2, 3-4, 29-31

U.S. Constitutional Amendment(s)

U.S. Const. V.........................i, 2, 3, 6, 8, 10, 20, 28-32

viii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jimmie L. Bowen petitions for a writ

of certiorari to review the judgment of the United

States court of Appeals for the Eleventh Circuit in

this case.

OPINIONS BELOW

The Eleventh Circuit’s opinion in Jimmie L.

Bowen v. Ricky Dixon, Secretary, Florida Department of

Corrections, 92 F.4th 1328 (11th Cir. 2024) is

reproduced in the Appendix. App. 7a. The relevant

order of the District Court adopting the magistrate’s

recommendation is unreported but is reproduced at App.

26a. The Magistrate’s Report and Recommendation is

reproduced at App. 33a.

JURISDICTION

On February 15, 2024, in Jimmie Bowen v.

Secretary of the Florida Department of Corrections,

No. 22-11744, the Eleventh Circuit reversed the United

States District Court for the Southern District of Florida

after the district court had granted Mr. Bowen’s 28 U.S.C.

§ 2254(d) habeas petition based on a Fifth Amendment

violation. Mr. Bowen then sought an en banc rehearing

which was denied on April 5, 2024. This Court granted

Petitioner’s application for an extension of time to file

the instant petition for certiorari on June 6, 2024.

This Court has jurisdiction over this petition under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the U.S. Constitution:

No person shall be held to answer for a

capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia,

when in actual service in time of War or

public danger; nor shall any person be

subject for the same offence to be twice

put in jeopardy of life or limb, nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived

of life, liberty, or property, without due

process of law; nor shall private property

be taken for public use without just

compensation.”

28 U.S.C. § 2254(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.

STATEMENT OF THE CASE

State Court Proceedings

On December 18, 2008, Jimmie Bowen

(“Bowen” or “Mr. Bowen”) was arrested at his home

for a homicide. Mr. Bowen was only sixteen years old

at the time of his arrest and at the time of the offense

five days earlier. A second juvenile, Bernard Jones

(“Jones” or “Mr. Jones”), was arrested as a co-suspect

in the incident.

When Bowen was arrested, his mother advised

the arresting officer that she would be exercising her

right to be present for any questioning of her son. At

the police station and with his mother present,

Detective Solis initially questioned Bowen about his

general education and his ability to read. The

detective then advised Bowen of his Miranda rights

per form and attempted to interrogate him. Bowen

and his mother both told the detective that he was

invoking his right to remain silent and his right to

counsel. At that time, Bowen’s mother reiterated that

she needed to be present for any further attempts to

question her son. The detective assured her that he

would not attempt any further questioning without

her being present. However, shortly thereafter, in an

effort to overcome Bowen’s invocation of his Miranda

rights after Bowen’s mother had left the premises,

police devised a scheme to place the juvenile in the

same room with the juvenile co-Defendant (Jones) in

order to draw an admission from Bowen while police

secretly

monitored

and

video-recorded

the

conversation. During the conversation in the locked

room, Bowen made incriminating statements.

On or about February 18, 2009, Bowen and codefendant Jones were indicted in Miami-Dade

County, Florida state court on two counts of First

Degree Murder (Counts 1 and 2) and two counts of

Attempted Premeditated Murder (Counts 3 and 4). 2

On January 25, 2012, Bowen’s trial counsel

filed a motion to suppress Bowen’s statements

arguing that:

1 Co-defendant Jones had been arrested earlier and was at the

same police station. Police knew at the time they placed the

suspects in the room together, that Jones, unlike Bowen, had

waived his Miranda rights and provided a statement.

Furthermore, during questioning, Jones provided his cellular

phone number to police and Bowen called Jones from his own

cellular phone while Jones was being questioned.

2 Co-defendant Jones was also charged with a fifth count of being

an accessory to murder after the fact.

[t]he videotaping of Bowen’s conversation

with his codefendant in the police

interrogation room violated Bowen’s

Fifth Amendment right to remain silent

and his Sixth Amendment right to

counsel guaranteed under the United

States Constitution. Additionally and

independent of the Fifth and Sixth

Amendment violations aforementioned,

the videotaping of Bowen’s conversation

with his codefendant in the police

interrogation room violated the Florida

Constitution Art. I, §§ 12, 23 and §

934.03 F.S. [Florida’s wiretap statute]

and is inadmissible at trial pursuant to

Florida Statute 934.06 [requirement of

exclusion of wiretapped evidence] because

police obtained neither consent nor court

approval to monitor and/or record the

conversation. Also independent of the

Fifth and Sixth Amendment violations,

the recorded statement violated Bowen’s

Constitutional protections under the Fourth

Amendment.

On or about March 29, 2012, the State responded to

the motion arguing that Bowen had not been subject

to custodial interrogation because the statements

were spontaneous and voluntary and not the subject

of state action. On April 5, 2012, a judge from a

different division than the one assigned held a

hearing on the motion to suppress. On April 18, 2012,

the motion to suppress was denied without a written

order.

On August 1, 2012, after an eight-day, joint

jury trial 3 where the State used Bowen’s statements

against him, Defendant was convicted of all four

counts as charged, with the gun and gang

enhancements. 4 On October 15, 2013, the court

sentenced Bowen to life in prison on each count, with

the life sentences on Counts 2, 3, and 4 running

consecutively to the life sentence on Count 1, but

concurrently with each other. A 25-year minimum

mandatory sentence was imposed on each count

because of the discharging of a firearm.

On direct appeal, Bowen’s appellate counsel

challenged the denial of the motion to suppress,

among other things, and the Third District Court of

Appeal of Florida affirmed the denial of the motion

without a written opinion on February 3, 2016. Mr.

Bowen filed several other motions in State court, all

of which were denied.

U.S. District Court Proceedings

On September 24, 2019, Mr. Bowen filed a pro

se federal habeas petition in the U.S. District Court

for the Southern District of Florida based on the State

3 Bowen’s counsel had moved to sever the defendants pursuant

to Bruton because co-Defendant Jones made incriminating

statements concerning Bowen, but the motion was denied.

Co-defendant Jones was found guilty of Count 1, the firstdegree murder of Pierre Roche, with the gang enhancement, but

not guilty of the remaining charges.

court’s denial of his motion to suppress. On November

20, 2019, the undersigned filed an amended habeas

petition on Mr. Bowen’s behalf, arguing in part that

the placing of Bowen in a wired, police-station interview

room with co-defendant Jones after Mr. Bowen had

invoked his rights, and the surreptitious recording of

their conversation, violated Miranda and federal

guarantees of due process, and therefore, it was reversible

error to deny his motion to suppress.

The State responded to the habeas petition on

January 8, 2020, and Mr. Bowen filed a reply on

January 27, 2020. On July 29, 2020, the Magistrate

Judge issued a Report and Recommendation

recommending that the amended petition be granted

in part and denied in part. Specifically, the

Magistrate recommended that the petition be granted

as to Mr. Bowen’s Fifth Amendment claim, stating

“the state court’s determination that Petitioner’s

incriminating statement was not acquired in violation

of his Fifth Amendment rights was an unreasonable

application of clearly established federal law.” The

Report recommended that the petition be denied as to

the related Fourth Amendment, Sixth Amendment

and state law claims.

On August 4, 2020, the State filed objections to

the Magistrate’s Report and Recommendation, where

it took issue with (1) the Court’s definition of “custodial

interrogation”; (2) the Court’s consideration of Mr.

Bowen’s age as a relevant factor; and (3) the harmless

error analysis.

On May 13, 2022, the District Court Judge

affirmed and adopted the Magistrate’s Report and

ordered a new trial for Mr. Bowen. The District Judge

rejected the State’s conclusion that there must be an

identical fact pattern reflected in U.S. Supreme Court

precedent in order for the Court to grant Mr. Bowen’s

petition. Instead, the Court cited White v. Woodall,

572 U.S. 415, 427 (2014), which had concluded that

habeas relief is available “if it is so obvious that a

clearly established rule applies to a given set of facts

that there could be no ‘fairminded disagreement’ on

the question.” (citing Harrington v. Richter, 562 U.S.

86, 103 (2011)).

On May 24, 2022, the State filed a Notice of

Appeal to the Eleventh Circuit. The Eleventh Circuit

heard oral argument on the matter on August 24,

2023. On February 15, 2024, the panel issued an

opinion reversing the district court. The panel opinion

stated “A fairminded jurist, applying the InnisMauro-Perkins trio of cases, could conclude that

[Detective] Solis’s decision to place Bowen in an

interrogation room with Jones was not a Miranda

violation.” Opinion at 14-15.

REASONS FOR GRANTING THE PETITION

UNDER RHODE ISLAND V. INNIS

AND J.D.B. V. NORTH CAROLINA, A

DETECTIVE’S ACT OF PLACING A

JUVENILE SUSPECT IN AN INTERVIEW

ROOM WITH A JUVENILE CO-SUSPECT

WHILE SECRETLY MONITORING AND

RECORDING THE CONVERSATION, IN

ORDER TO OBTAIN A CONFESSION,

AFTER THE JUVENILE HAS INVOKED

HIS MIRANDA RIGHTS, VIOLATES

THE FIFTH AMENDMENT

The Fifth Amendment to the U.S. Constitution

provides in relevant part that: “No person . . . shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law.” Mr. Bowen submits that

the detective’s act of placing him in a police interview

room with Jones, the juvenile co-suspect, while

secretly monitoring and recording the conversation,

in order to obtain a confession, after he had invoked

his Miranda rights, was a violation of the Fifth

Amendment.

In Miranda v. Arizona, 384 U.S. 436, this Court

held that once a defendant in custody asks to speak

with an attorney, all interrogation must cease until

an attorney is present. The question here is whether

the juvenile Mr. Bowen was “interrogated” in

violation of Miranda. In Rhode Island v. Innis, 446

U.S. 291 (1980), this Court concluded that:

[T]the Miranda safeguards come into

play whenever a person in custody is

subjected to either express questioning

or its functional equivalent. That is to

say, the term ‘interrogation’ under

Miranda refers not only to express

questioning, but also to any words or

actions on the part of the police . . .that

the police should know are reasonably

likely to elicit an incriminating response

from the suspect.

Id. at 300-01.

The Innis Court went on to explain that in

determining the likelihood that an officer’s words or

actions will elicit an incriminating response, the court

should focus primarily on the perceptions of the

suspect rather than the intent of the police. Id. at 301.

Furthermore, “[a]ny knowledge the police may have

had concerning the unusual susceptibility of a

defendant to a particular form of persuasion might be

an important factor in determining whether the police

should have known that their words or actions were

reasonably likely to elicit an incriminating response

from the suspect.” Id. at 302, n.8. “Thus, custodial

interrogation for purposes of Miranda includes both

express questioning, and also words or actions that,

given the officer’s knowledge of any special

susceptibilities of the suspect, the officer knows or

reasonably should know are likely to ‘have . . . the

force of a question on the accused,’ … and therefore be

reasonably likely to elicit an incriminating response.”

Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)

(internal citations omitted).

In the instant case, the detective knew that

Bowen was unusually susceptible to deceptive

interrogation techniques because of his age and

because Bowen had attempted to contact the codefendant, Jones, moments earlier. In addition,

Bowen’s mother repeatedly warned the detective

against trying to question her son again. These

admonitions put the detective on notice of Bowen’s

vulnerability to being duped.

Both the state and federal judges were

obligated to adequately consider the age factor in

ruling on Bowen’s claim that he was subjected to

custodial interrogation in violation of his Miranda

rights. As the Magistrate Judge said in her report and

recommendation, Bowen’s young age presented “an

‘acute’ risk of coercion” as outlined in the U.S.

Supreme Court’s holding in J.D.B. v. North Carolina,

564 U.S. 261, 269 (2011).

The district court correctly decided that the

state

court’s

determination

that

Appellee’s

incriminating statements were properly obtained was

an unreasonable application of clearly established

federal law. After being advised of his Miranda rights,

Appellee made a clear and unequivocal invocation of

those rights. At that point, any statement Appellee

made is presumed to be the result of coercion and,

therefore, inadmissible. The detective’s actions in

putting Petitioner in the room with the co-defendant

and monitoring the conversation were the “functional

equivalent” of a custodial interrogation. When a law

enforcement officer advises a suspect of his or her

Miranda rights and the suspect invokes those rights,

the officer must “scrupulously honor” those rights.

Michigan v. Mosley, 423 U.S. 96 (1975).

The Eleventh Circuit concluded that “[a]

fairminded jurist, applying the Innis-Mauro-Perkins

trio of cases, could conclude that [Detective] Solis’s

decision to place Bowen in an interrogation room with

Jones was not a Miranda violation.” Opinion at 14-15.

None of these cases involved a juvenile suspect. Judge

Wilson’s concurring opinion correctly emphasized

“the heightened concern that should attach to cases

involving juveniles.” Opinion at 17. 5 And even if

Bowen were an adult, none of the fact patterns

presented in Innis, Mauro and Perkins would be

comparable to the instant case.

In Innis, this Court determined that the

officers’ actions were not designed to elicit any

response from the suspect, Thomas Innis. Rather, Mr.

Innis simply overheard a conversation between the

officers which prompted him to respond after his

moral conscience began to affect him. There, the

Court concluded: “it cannot be said that the officers

should have known that their conversation was

reasonably likely to elicit an incriminating response

5 However, Judge Wilson concurred in the result, stating that

Miranda rights are not implicated if “[t]he essential ingredients

of a ‘police-dominated atmosphere’ and compulsion are not

present.” (quoting Illinois v. Perkins, 496 U.S. 292, 296 (1990)).

from respondent. There is nothing in the record to

suggest that the officers were aware that respondent

was peculiarly susceptible to an appeal to his

conscience . . .” Id. at 292. By contrast, in the instant

case, the detective admitted that he was well aware

of the probability that Bowen would discuss the case

with the co-defendant because Bowen had attempted

to call co-defendant Jones just moments earlier. In

other words, although the Innis Court set out the

definition of interrogation, Mr. Innis himself did not

benefit from that definition because, in his case, the

police’s actions were not designed to elicit a response

from him.

The instant case should also be contrasted with

the case of Arizona v. Mauro, 481 U.S 520 (1987). In

Mauro, the defendant who was in custody for killing

his son invoked his Miranda rights. All questioning

then ceased and the defendant was placed in the

police captain’s office for security reasons. In the

meantime, the defendant’s wife was being questioned

in another room. The wife then insisted that she be

allowed to speak with her husband. Although

reluctant at first, the police allowed the meeting in

the office on the condition that an officer be present.

Using a recorder placed in plain sight, the officer

taped a brief conversation during which the wife

expressed despair and the defendant told her not to

answer questions until a lawyer was present. The

prosecution later used the tape at trial to rebut the

defendant’s insanity defense and obtain a conviction.

The Arizona Supreme Court reversed, finding that

the police had impermissibly interrogated the

defendant within the meaning of Miranda. In a 5-4

decision, this Court then reversed the Arizona

Supreme Court, holding that the police’s actions did not

constitute interrogation or its functional equivalent

under Innis. The Court explained that the purpose of

Miranda was to prevent the government from “using

the coercive nature of confinement to extract

confessions that would not be given in an

unrestrained environment.” Id. at 529-30. The Mauro

Court went on to find that the officers’ actions did not

implicate Miranda’s concerns because the defendant

“was not subjected to compelling influences,

psychological ploys, or direct questioning.” Id. at 529.

The majority saw no evidence that the meeting was

allowed in order to obtain incriminating statements.

The instant case is distinguishable from Mauro

in several ways. 6 First, unlike in Mauro, Petitioner

Bowen did not request a conversation with the codefendant. Notably, Mr. Mauro’s wife not only

requested a conversation but insisted on it after the

police tried to discourage her. As to Mr. Bowen, the

police exploited the “coercive nature of confinement to

extract [a] confession that would not [have been]

given in an unrestrained environment.” Cf. Mauro at

530. The police used the pretext that Bowen and his

co-defendant had to be placed in the same room to

await transportation as a compelling influence upon

him. As Justice Stevens pointed out in his dissent in

United States

v. Vazquez, 857 F.2d 857 (1st. Cir. 1988), where customs officials

6 The instant case is also similar in some ways to

brought two drug suspects together in an airport and it led to an

incriminating statement. The Court stated that it was a difficult

and close case but held that there was no evidence that the

particular customs official engaged in a conscious design to

create an “interrogation environment.”

Mauro, “[i]t is undisputed that a police decision to

place two suspects in the same room and then to listen

to or record their conversation may constitute a form

of interrogation even if no questions are asked by any

police officers.” Mauro at 535. Justice Stevens also

correctly reasoned that even if the officers had other

reasons for their actions besides attempting to get a

statement from the defendant, their actions still

amount to impermissible interrogation. Stevens

stated “The State should not be permitted to set aside

this conclusion with testimony that merely indicates

that the evidence-gathering purpose of the police was

mixed with other motives. For example, it is

irrelevant to the inquiry whether the police had

legitimate security reasons for having an officer

present that were ‘not related to securing incriminating

statements.’ ” Id. at 536. The same reasoning applies

here. Even if the officers were genuinely using the

interview room as a holding room for Bowen and the

co-defendant to await transport (whether that was

the primary or secondary reason), their admitted

effort to get a confession was still impermissible.

Second, this case is distinguishable from

Mauro in that Mr. Bowen was not aware that he was

being recorded. Therefore, he cannot be considered to

have waived his rights. The fact that Bowen spoke in

a hushed tone of voice shows that he did not waive his

Miranda rights. Bowen’s lowering of his voice was to

avoid being overheard from officers outside the door,

not because he suspected he was being recorded.

Third, Bowen is distinguishable from Mauro

because he was a juvenile at the time of the secret

recording and cannot be held to a standard of adult

sophistication that one can impute to the married

couple in Mauro. Since the Mauro’s were a married

couple, it was not obvious what they would discuss,

and in fact, they discussed nothing about the case. 7

Instead, they discussed the emotional aspect of the

arrest. 8 Petitioner here, on the other hand, upon

seeing his fellow suspect would be inclined to talk

about the case and the evidence. What the police

anticipated Bowen would do is exactly what he did—

discuss the incident.

The Mauro Court found that the officers’

actions did not implicate Miranda’s concerns because

the defendant “was not subjected to compelling

influences, psychological ploys, or direct questioning.”

Id. at 529. Just as in Innis, the Mauro majority saw

no evidence of a deliberate attempt to overcome the

suspect’s rights. That is, the officers’ actions were not a

subterfuge to obtain incriminating statements.

In Illinois v. Perkins, 496 U.S. 292, 296 (1990),

this Court held that Miranda only applies to

The Mauro case did not involve incriminating statements

because the defendant did not make any admissions. The

question was whether the statements made during the

conversation could be used to rebut the insanity defense because

the statements were evidence of a sound mind.

8 Adults would be more inclined to understand what they were

facing and know to avoid self-incrimination. In Mr. Bowen’s case,

his mother, who had insisted on him not speaking to police, had

been removed from the equation so police knew they could take

advantage of his mother’s absence.

situations where police compulsion is present, and

therefore, Miranda warnings were not required to be

given by an officer posing as an inmate. However, the

question in Perkins was whether a suspect’s Miranda

rights had to be given in the first place, not whether

those rights could be violated after they have been

instructed and invoked. See Perkins at 296. Bowen

submits that once Miranda has been given and the

suspect invokes those rights, law enforcement agents

must “scrupulously honor” those rights as explained

in Michigan v. Mosley, 423 U.S. 96 (1975). In other

words, when Miranda rights are invoked, it changes

the game. If police had decided not to try to question

Bowen in the first place and to therefore not read him

his rights, then his statements to Jones would have

been admissible.

The second distinction between Perkins and

the instant case is that Mr. Perkins was not in

custody for the crime which was being investigated.

In fact, it is not even clear if police had probable cause

to arrest Mr. Perkins for the offense at the time of the

jail interaction. The factual scenario presented in

Perkins is no different from an undercover agent who

approaches a suspect at a grocery store, for example.

Since the suspect is still being investigated and not

under arrest, Miranda would not apply. The Perkins

Court did not have any reason to answer the question

of what would happen if Mr. Perkins had already been

given Miranda warnings and had invoked those

warnings.

Finally, Perkins did not involve a “policedominated atmosphere” because it did not occur at the

police station. Corrections officers, not police officers,

control the jail facilities.

The Perkins case is not applicable here.

However, the following language from Justice

Brennan’s concurring opinion in Perkins highlights

the danger of using deceptive and manipulative

methods to extract a confession:

This is not to say that I believe the

Constitution condones the method by

which the police extracted the confession

in this case. To the contrary, the

deception and manipulation practiced on

respondent raise a substantial claim

that the confession was obtained in

violation

the

Due

Process

Clause…That the right is derived from

the Due Process Clause “is significant

because

reflects

the

Court's

consistently held view that the

admissibility of a confession turns as

much on whether the techniques for

extracting the statements, as applied

to this suspect, are compatible with a

system that presumes innocence and

assures that a conviction will not be

secured by inquisitorial means as on

whether the defendant's will was in fact

116,

overborne.” Id., at

496 U.S. at 301-302 (emphasis in original), citing

Miller v. Fenton, 474 U.S. 104, 116 (1985).

The distinctions between the trio of cases that

the Eleventh Circuit cites and the instant case are

clear. However, the most significant distinction

between Mr. Bowen’s case and the trio of cases is the

juvenile factor. Even if the detective’s actions in this

case would not have been coercive for an adult

suspect, they became coercive under the Fifth

Amendment because of the suspect’s status as a

juvenile. Once again, Innis instructs us that that

“[a]ny knowledge the police may have had concerning

the unusual susceptibility of a defendant to a

particular form of persuasion might be an important

factor in determining whether the police should have

known that their words or actions were reasonably

likely to elicit an incriminating response from the

suspect.” Id. at 302, n.8. “Thus, custodial

interrogation for purposes of Miranda includes both

express questioning, and also words or actions that,

given the officer’s knowledge of any special

susceptibilities of the suspect, the officer knows or

reasonably should know are likely to ‘have . . . the

force of a question on the accused,’ … and therefore be

reasonably likely to elicit an incriminating response.”

Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990)

(internal citations omitted).

Bowen’s young age presented “an ‘acute’ risk of

coercion” as outlined in this Court’s holding in J.D.B.

v. North Carolina, 564 U.S. 261, 269 (2011). See also,

e.g. Haley v. Ohio, 332 U.S. 596 (1948); Withrow v.

Williams, 507 U.S. 680 (1993); Fare v. Michael C., 442

U.S. 707 (1979); Schneckloth v. Bustamonte, 412 U.S.

218 (1973); In re Gault, 387 U.S. 1 (1967); and

Gallegos v. Colorado, 370 U.S. 49 (1962). In fact, the

question of whether an officer’s actions amounted to

interrogation is a subjective inquiry, and therefore an

even stronger case to consider a juvenile’s age than

the objective custody question at issue in J.D.B.. In

Yarborough v. Alvarado, 541 U.S. 652, 667-68 (2004),

this Court stated that

the objective Miranda custody inquiry

could reasonably be viewed as different

from doctrinal tests that depend on the

actual mindset of a particular suspect,

where we do consider a subject’s age and

experience.

For

example,

the

voluntariness of a statement is often

said to depend on whether “the

defendant’s will was overborne”. . . a

question that logically can depend on

“the characteristics of the accused.”

(emphasis added) (citations omitted). Judge Wilson’s

concurring opinion correctly recognizes that “the

majority treats J.D.B. too lightly.” Opinion at 19.

The United States Supreme Court has held

that when an accused has invoked his right to

counsel, all interrogation must cease immediately

until counsel is made available, unless the accused

reinitiates further communication with law

enforcement. Edwards v. Arizona, 451 U.S. 477

(1981). Once a suspect invokes his rights, the police

are required to “scrupulously honor” that decision and

refrain from any further interrogation. Michigan v.

Mosley, 423 U.S. 96, 104 (1975).

In the instant case, Mr. Bowen did invoke his

rights, and did not reinitiate contact, but the police

failed to scrupulously honor his invocation when they

put him in a room under circumstances that were

reasonably likely to lead to an incriminating

conversation. At the suppression hearing, Detective

Solis initially insisted that he only put Bowen in a

room with Jones to await transportation to the jail,

but Detective Solis eventually admitted several times

on cross examination that he put Bowen in a wired,

monitored interview room with Jones as a calculated

effort to obtain incriminating statements.

The

following exchange took place on cross-examination:

Q. Now, when you put them together in the

interview room you did so for investigative purposes

of course?

No. To transport them to JAC

Q. And now, that room happened to have a

recording device?

Correct.

That recording device was activated?

Correct.

You were monitoring it, right?

Yes.

Q. I’m going to ask a question again, do

you put him in there for investigative purposes?

They were put in the room for me to

transport them but when they were inside that

specific room I was aware that there is a recording

device too so I proceeded to activate the recording

system, video, to see if they were going to say

anything.

Isn’t that true that’s the purpose you

put them together?

No.

Are you sure?

Yes.

Defense counsel then proceeded to impeach the

detective with his deposition testimony, as follows:

Q. Do you remember being asked was there

a particular reason that you put -- you kept them in

the same room and do you remember being asked that

question?

A. Yes.

Q. Do you remember responding “to see if

they were going to talk about this investigation”?

A. Yes. But like I said before, the original

reason to be put in the room was for transport. At no

time were they ever together to see whether or not

they were going to say anything. So that's also the

reason why the record button was pressed.

After this contradictory double-talk

detective, defense counsel continued:

from

the

Q. So there may have been another reason

but certainly as I understand from your testimony

back in January of 2010 that you put them in there to

see if they were going to talk about this case?

Yes.

Q. Okay. And in fact you were right and

they did talk about the case, correct?

made?

Yes, they did.

There were incriminating statements

Correct.

A few moments later, defense counsel reiterated:

Q. It’s fair to say there was no accident

they were in that room, that’s something that you did

on purpose?

Like I said they were going to be

transported to JAC. It would be prudent. At no time

they were together to see if they would say anything

so I hit the record button, yes.

Q. You put them in there together, you

wanted to see if they would talk about this case?

Correct.

On re-direct examination, the State attempted to

rehabilitate the detective as follows:

Q. Sergeant Solis, when you placed these

two defendants in this interrogation room did you

have any idea they were going to talk to each other?

other?

No.

Did you ever tell them to talk to each

No.

Q. Did you know if they were going to talk

about the girl?

Possibly.

Q. Whether - A.

Possibly.

Or the case?

Correct. Possibly.

And as investigator you hoped that

obviously they’ll talk about the case?

Absolutely.

However, moments thereafter, the State shifted the

detective’s position again. The following exchange

occurred between the State and the detective:

Q. When you placed these two

defendants in the interrogation room together did

you have any idea that they were – they would talk

to each other?

No. None.

Solis gave no reason why the two juveniles

needed to be in an interview room at all, much less

the same one, to await transportation, or why he

chose a wired room as opposed to an unwired room. In

light of those omissions and the fact that Detective

Solis immediately activated the recorder after placing

the youths in the room together, it seems that Solis

was using Jones to speak to Bowen in a way that he

couldn’t legally do himself. Moreover, the respective

arrest affidavits indicate that the two juveniles were

transported about three hours apart from each other. 9

Records show that Jones was transported about 8:35 A.M.

while Bowen was transported about 11:24 A.M.

Under Innis, this was the unlawful functional

equivalent of resuming Bowen’s interrogation.

Jimmie Bowen refused to talk and invoked his

rights. At the suppression hearing, Mr. Bowen’s

mother testified about how she persisted in

admonishing the detective against any further efforts

to obtain a statement from her son. This put the

officer on notice that Bowen might eventually

succumb to trickery. Detective Solis ostensibly

honored that invocation by leaving the room, but the

detective used Jones precisely because he knew

Bowen would be more likely to speak to him.

Detective Solis lied to Mr. Bowen (and possibly Mr.

Jones) about the reason they were put together, which

naturally fostered an expectation that they were

speaking privately as they supposedly awaited

transportation. And to the extent that the defendants

appear to be speaking low so as not to be heard from

outside the room, that would be natural during such

a conversation, and certainly is not proof that they

knew they were being recorded.

In state court and in the proceedings below, the

State argued that the police officers’ act of leaving

Bowen in a monitored interviewing room with his codefendant and secretly recording the conversation

between them, could not be considered “custodial

interrogation” and that it therefore did not violate

Bowen’s Fifth Amendment right to remain silent.

This argument fails for several reasons.

As to whether the officers’ actions amounted to

“interrogation,” the State quoted the following

language from Innis: “since the police surely cannot

be held accountable for the unforeseeable results of

their words or actions, the definition of interrogation

can extend only to words or actions on the part of

police officers that they should have known were

reasonably likely to elicit an incriminating response.”

Id. at 301-02 (emphasis supplied). However, the

inverse is also true. That is, the police should be held

accountable for the foreseeable results of their words

or actions that they should have known would elicit

an incriminating response. The Innis Court stated

this principle directly when it defined interrogation as

“express questioning or its functional equivalent.” At

the suppression hearing, Detective Solis initially

insisted that he only put Bowen in a room with Jones

to await transportation to the jail, but he eventually

admitted on cross examination that he put Bowen in

the monitored interview room with Jones as a

calculated effort to obtain incriminating statements.

Mr. Bowen asks the Court to intervene in this

matter because the detective’s actions violated his

Miranda rights. The Court should establish that

Michigan v. Mosley extends to the scenario where a

law enforcement agent places a juvenile suspect in an

interview room with the co-suspect in order to secretly

obtain a confession, because law enforcement agents

must “scrupulously honor” a suspect’s Miranda

rights. Finally, this Court should conclude that the

Eleventh Circuit misapplied the Innis-Mauro-Perkins

trio of cases, especially in light of Mr. Bowen’s status

as a juvenile.

UNDER 28 U.S.C. § 2254(D), AND IN

LIGHT OF J.D.B. V. NORTH CAROLINA, A

STATE ADJUDICATION OF A CLAIM

RESULTS IN A DECISION THAT WAS

CONTRARY TO, OR AN UNREASONABLE

APPLICATION OF, CLEARLY ESTABLISHED

FEDERAL LAW, AS DETERMINED BY

THE

SUPREME COURT OF THE

UNITED STATES, WHEN IT FAILS TO

ADEQUATELY

CONSIDER

SUSPECT’S STATUS AS A JUVENILE,

FOR FIFTH AMENDMENT PURPOSES

Under 28 U.S.C. § 2254(d), “[a]n 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.

Under this section, the determination as to

whether a claim was “adjudicated on the merits” is a

per claim inquiry so that a federal circuit court owes

no AEDPA deference to a state court’s decision that

adjudicated one or more of the petitioner’s claims on

the merits but did not adjudicate the claim on which

the district court granted relief, where the claim on

which the district court granted relief was the claim

that was subsequently presented to the circuit court.

In the instant case, a footnote in the Eleventh

Circuit’s opinion stated that the Court would not

accept Bowen’s argument that his Fifth Amendment

claim was not “adjudicated on the merits” since

Bowen did not present that argument in his answer

brief.

In Williams v. Taylor, 529 U.S. 362 (2000), this

Court explained that in order to determine whether a

particular decision is "contrary to" then-established

law, a federal court must consider whether the

decision "applies a rule that contradicts [such] law"

and how the decision "confronts [the] set of facts" that

were before the state court. If the state-court decision

identifies the correct governing legal principle in

existence at the time, a federal court must assess

whether the decision "unreasonably applies that

principle to the facts of the prisoner's case." That is, if

the state decision is “contrary to” Supreme Court

precedent, it does not have to also be “an

unreasonable application” of Supreme Court

precedent for the court to grant habeas corpus. The

Court must give independent meaning to both the

“contrary to” and “unreasonable application” clauses

of 2254(d)(1). See Taylor (distinguishing the two

separate categories of review in 2254(d)(1)).

Bowen’s young age presented “an ‘acute’ risk of

coercion” as outlined in this Court’s holding in J.D.B.

v. North Carolina, 564 U.S. 261, 269 (2011). See also,

e.g. Haley v. Ohio, 332 U.S. 596 (1948); Withrow v.

Williams, 507 U.S. 680 (1993); Fare v. Michael C., 442

U.S. 707 (1979); Schneckloth v. Bustamonte, 412 U.S.

218 (1973); In re Gault, 387 U.S. 1 (1967); and

Gallegos v. Colorado, 370 U.S. 49 (1962). In fact, the

question of whether an officer’s actions amounted to

interrogation is a subjective inquiry, and therefore an

even stronger case to consider a juvenile’s age than

the objective custody question at issue in J.D.B..

Judge Wilson’s concurring opinion correctly

recognizes that “the majority treats J.D.B. too

lightly.” Opinion at 19. Even if the detective’s actions

in this case would not have been coercive for an adult

suspect, they became coercive under the Fifth

Amendment because of the suspect’s status as a

juvenile.

In J.D.B. v. North Carolina, 564 U.S. 261

(2011), this Court held that “a child’s age properly

informs the Miranda custody analysis.” Id. at 265.

Again, the question of whether an officer’s actions

amounted to interrogation is a subjective inquiry, and

therefore an even stronger case to consider a

juvenile’s age than the objective custody question at

issue in J.D.B.. See Yarborough v. Alvarado, 541 U.S.

652, 667-668 (2004).

Bowen submits that the district court decision

should have been affirmed because the state court’s

decision was contrary to the decisions in Rhode Island

v. Innis, 446 U.S. 291 (1980); J.D.B. v. North

Carolina, 564 U.S. 261, 269 (2011); and Michigan v.

Mosley, 423 U.S. 96 (1975). Even assuming the state

court adjudicated Bowen’s Fifth Amendment claim on

the merits, which Bowen disputes, the decision was

contrary to Supreme Court precedent. The

requirement that there be “no fairminded

disagreement” on the issue is not implicated here

because the state court did not identify and apply the

correct governing legal principle in the first place.

Mr. Bowen asks the Court to intervene in this

matter by granting certiorari because the state court

and the Eleventh Circuit failed to adequately consider

Bowen’s status as a juvenile and therefore those

decisions were “contrary to” clearly established

Supreme Court precedent. The Eleventh Circuit’s

reliance on the Innis-Mauro-Perkins trio of cases was

erroneous because none of those cases involve the

juvenile standard set forth in J.D.B. v. North

Carolina, 564 U.S. 261 (2011).

CONCLUSION

For the foregoing reasons, this Honorable

Court should grant the petition for a writ of certiorari

in this case.

Respectfully submitted,

ROBYN M. BLAKE

Attorney for Petitioner

Florida Bar No.: 146129

20295 N.W. 2nd Avenue, Suite 215

Miami, Florida 33169

Telephone: (305) 651-5505

Facsimile: (305) 651-5525

E-mail: law@robynblake.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.