NO. 09-790 In the Supreme Court of the United States EDMUND ZAGORSKI, Petitioner, v. RICKY BELL, Warden, Respondent. On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit RESPONDENT'S BRIEF IN OPPOSITION ROBERT E. COOPER, JR. ATTORNEY GENERAL & REPORTER STATE OF T ENNESSEE MICHAEL E. MOORE SOLICITOR G ENERAL JENNIFER L. SMITH ASSOCIATE D EPUTY A TTORNEY G ENERAL Counsel of Record P.O. BOX 20207 NASHVILLE, TN 37202-0207 (615) 741-3487 [email protected] March 8, 2010 Counsel for Respondent Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i CAPITAL CASE QUESTIONS PRESENTED 1. Whether a “security” justification for abusive pretrial confinement precludes, as a matter of law, a determination that the circumstances of confinement impermissibly coerced the making of custodial statements. 2. Whether a defendant’s initiation of contact with police per se establishes admissibility of his statements, or whether the court must consider the totality of circumstances in determining whether inculpatory statements made by the defendant were voluntary. ii TABLE OF CONTENTS QUESTION PRESENTED.................... i TABLE OF AUTHORITIES.................. iv OPINION BELOW ......................... 1 STATEMENT OF JURISDICTION............ 1 STATUTORY PROVISIONS INVOLVED....... 1 STATEMENT OF THE CASE ................ 3 I. Procedural History ................. 3 II. Facts Relevant to the Petition ........ 4 III. The Opinions Below ................ 7 ARGUMENT............................. 10 THE COURT OF APPEALS CORRECTLY CONCLUDED THAT THE STATE COURT’S DECISION OVERRULING PETITIONER’S MOTION TO SUPPRESS HIS PRETRIAL STATEMENTS WAS NOT CONTRARY TO OR AN UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW. 10 CONCLUSION ........................... 20 iii APPENDIX Memorandum and Order of the United States District Court for the Middle District of Tennessee, filed April 28, 2003 ............ 1b Excerpts from the pretrial suppression hearing, Robertson County Criminal Court, Preliminary Motions, February 13, 1984 ............... 4b Excerpts from the evidentiary hearing in Post- Conviction Proceedings, Robertson County Criminal Court, testimony of James Walton, August 1, 1996 ........................ 38b Excerpts from the evidentiary hearing in Post- Conviction Proceedings, Robertson County Criminal Court, testimony of Larry Wilks, August 1, 1996 ........................ 44b iv TABLE OF AUTHORITIES CASES Bell v. Cone, 535 U.S. 685 (2002) ..................... 17 Brecht v. Abrahamson, 507 U.S. 619 (1993) .................. 12, 18 Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) .............................passim Holland v. Jackson, 542 U.S. 649 (2004) ..................... 17 Kyger v. Carlton, 146 F.3d 374 (6th Cir. 1998) ............... 9 Miller-El v. Cockrill, 537 U.S. 322 (2003) ..................... 17 Miranda v. Arizona, 384 U.S. 436 (1966) ..................... 10 Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) ............................. 6, 7, 8 State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985), cert. denied, 106 S.Ct. 3309 (1986) .................passim United States v. Webb, 755 F.2d 382 (5th Cir. 1985) ............... 6 v United States v. Whaley, 13 F.3d 963 (6th Cir. 1994) ................ 9 Zagorski v. Bell, 326 Fed. Appx. 336, 2009 WL 996307 (6th Cir. 2009) ................................ 1, 4 Zagorski v. Bell, No. 06-5532, slip op. (6th Cir. Apr. 15, 2009) . 12 Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998) ............ 4, 18 Zagorski v. State, No. 01C01-9609-CC-00397, 1997 WL 311926 (Tenn. Crim. App. 1997) ............... 3, 18 STATUTES 28 U.S.C. § 1254(1) ......................... 1 28 U.S.C. § 2254 ........................... 1 28 U.S.C. § 2254(d) .....................passim 28 U.S.C. § 2254(d)(1) ...................... 14 28 U.S.C. § 2254(d)(2) ...................... 14 28 U.S.C. § 2254(e)(1) ................. 8, 14, 17 1 OPINION BELOW The opinion of the court of appeals that is the subject of this petition was not selected for publication in the Federal Reporter. Zagorski v. Bell, 326 Fed. Appx. 336 (6th Cir. 2009). (Pet. App. 1a). The memorandum opinion of the district court relevant to the question presented is unreported. (Pet. App. 15a). STATEMENT OF JURISDICTION The judgment and opinion of the court of appeals were entered on April 15, 2009. (Pet. App. 1a). The court denied rehearing on August 7, 2009. (Pet. App. 224a). By order entered October 26, 2009, Justice Stevens extended the time for filing a petition for writ of certiorari from November 5, 2009, until January 4, 2010. (09A386). Petitioner filed a certiorari petition on January 4, 2010. Petitioner invokes the jurisdiction of this Court under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED 28 U.S.C. § 2254, which governs the remedy of federal habeas corpus for applicants in state custody, provides in pertinent part: (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 2 * * * (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. * * * (e)(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that) (A) The claim relies on) (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 3 (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense. STATEMENT OF THE CASE I. Procedural History Petitioner, Edmund Zagorski, was convicted in 1984 by a Robertson County, Tennessee, jury of two counts of felony murder in the deaths of John Dotson and Jimmy Porter. He was sentenced to death for both murders. His convictions and sentence were affirmed on direct appeal by the Tennessee Supreme Court, and this Court denied a petition for writ of certiorari. State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985), cert. denied, 106 S.Ct. 3309 (1986). Petitioner filed a petition for post-conviction relief in the state trial court in 1987 and an amended petition in 1989. Following an evidentiary hearing, the state trial court denied relief. The Tennessee Court of Criminal Appeals affirmed the trial court’s judgment. Zagorski v. State, No. 01C01-9609-CC- 00397, 1997 WL 311926 (Tenn. Crim. App. 1997). Petitioner subsequently filed an application for permission to appeal to the Tennessee Supreme Court pursuant to Tenn. R. App. P. 11. On November 3, 1997, the Tennessee Supreme Court granted Petitioner’s application on a single issue unrelated to 4 the issue before this Court and, on December 7, 1998, affirmed the judgment of the Court of Criminal Appeals. Zagorski v. State, 983 S.W.2d 654, 657-59 (Tenn. 1998). Petitioner filed a pro se Petition for Writ of Habeas Corpus in the United States District Court for the Middle District of Tennessee on December 23, 1999, and an amended petition on August 4, 2000. Zagorski v. Bell, No. No. 3:99-cv-01193 (M.D. Tenn.) (Trauger, J.). Respondent filed a motion for summary judgment and supporting memorandum as to all of the claims in the Amended Petition. On April 28, 2003, the district court ruled that an evidentiary hearing was warranted on the single issue of whether the state suppressed material evidence regarding state’s witness, Jimmy Blackwell. (Resp. App. 1b). The evidentiary hearing was conducted on July 23, 2003, and on March 31, 2006, the district court granted judgment in favor of the respondent as to all claims raised in his petition for writ of habeas corpus. (Pet. App. 15a). Petitioner appealed to the United States Court of Appeals for the Sixth Circuit. On April 15, 2009, the court of appeals affirmed the district court’s judgment. Zagorski v. Bell, 326 Fed. Appx. 336, 2009 WL 996307 (6th Cir. 2009) (reh. denied). (Pet. App. 1a). That decision is the subject of the instant petition. II. Facts Relevant to the Petition A summary of the evidence presented at petitioner’s trial appears in the opinion of the Tennessee Supreme Court on direct appeal. State v. Zagorski, 701 S.W.2d 808 (Tenn. 1985). In addition, 5 the district court summarized the evidence at petitioner’s trial and sentencing hearing in its memorandum opinion. (Pet. App. 15a-24a). The instant petition addresses the admissibility of certain custodial statements made to law enforcement officials in which petitioner inculpated himself in the murders. Petitioner filed a pretrial motion challenging the admissibility of the statements on grounds that he did not make a knowing, intelligence and voluntary waiver of his right to remain silent and to counsel. Following an evidentiary hearing, the trial court denied petitioner’s motion to suppress. On direct appeal, the Tennessee Supreme Court affirmed, concluding that the petitioner had initiated the interrogations in question, that his statements were not the result of any coercive action on the part of the State, and that he knowingly and intelligently waived his right to have counsel present.