APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:12-CV-01742-RPM).
Ryan A. Crane, Assistant Attorney General (John W. Suthers, Attorney General, with him on the briefs), Denver, Colorado, for Respondents - Appellants.
Brett Daniel Lampiasi, Law Office of Brett Daniel Lampiasi, Hatfield, Massachusetts, and Henry L. Solano, Wilson Elser Moskowitz Edelman & Dicker LLP, Denver, Colorado, (Steven M. Feder and Barry Boughman, Feder Law Firm, Denver, Colorado, with them on the brief), for Petitioner - Appellee.
Before HARTZ, MATHESON, and MORITZ, Circuit Judges.
HARTZ, Circuit Judge.
The United States District Court for the District of Colorado granted Defendant Naif Al-Yousif's application for a writ of habeas corpus under 28 U.S.C. § 2254. Although the application was untimely filed, the district court granted equitable tolling and proceeded to the merits. It ruled that the state-court decision was both contrary to and an unreasonable application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). The State of Colorado appealed. (It did not need to obtain a certificate of appealability. See Fed. R. App. P. 22(b)(3).) We have jurisdiction under 28 U.S.C. § § 1291 and 2253 and reverse.
The facts are largely undisputed. Defendant, a native of Saudi Arabia, moved to the United States in 1996 to study English.
He attended an English-language program for 14 months, advancing from no English comprehension or speaking ability to the ability to carry on a basic conversation.
Defendant's conviction was for the murder of Abdulaziz Al-Kohaji on January 10, 2001. See People v. Al-Yousif, 206 P.3d 824, 828 (Colo.App. 2006) ( Al-Yousif II ). The victim flew to Denver that day and was driven from the airport to his apartment by Defendant's cousin (Mishal Al-Swaidy) and brother, who expected to see him later at dinner. But Defendant picked the victim up at the apartment and drove him to the home Defendant shared with Al-Swaidy and their roommate, Tariq Al-Dossary. Defendant left the house to buy groceries. When he returned, the victim was tied to a chair. Al-Dossary forced him to disclose his financial-account information and then strangled him to death with a rope while Defendant and Al-Swaidy watched. The three men disposed of the body in a dumpster. Defendant and Al-Dossary sold the victim's car, cashed $1,000 of the victim's cashier's checks, and withdrew $19,900 from his bank account. Al-Dossary and Al-Swaidy fled to Saudi Arabia. Defendant initially fled to California but returned to Colorado after speaking to his brother.
Detective Gene Guigli arrested Defendant when he returned. On the way to the police station, Defendant said words to the effect of " I know all about it," and appeared eager to talk. People v. Al-Yousif, 49 P.3d 1165 (Colo. 2002) ( Al-Yousif I ) App. A (Order on Mot. to Suppress Statements, People v. Al-Yousif, No. 01 CR 1861 (Dist. Ct. Colo. Dec. 20, 2001) (Order to Suppress)), at 1178 (internal quotation marks omitted). Guigli briefly advised Defendant of his rights and instructed him not to talk while being transported.
At the station, Guigli and Detective Mike Martinez questioned Defendant while being videotaped. After asking Defendant the spelling and pronunciation of his name and his date of birth, address, and phone number, Martinez said, " [L]et me first advise you of your rights. Okay?" Tr. of Interview at 3, Al-Yousif v. Trani, No. 1:12-cv-01742-RPM (D. Colo. Nov. 16, 2002) (Doc. No. 19-2) (Tr.). He then read, without pausing, from a printed form:
Martinez: Okay. You have the right to remain silent. Anything you say can be used as evidence against you in court.
Al-Yousif: [Nods head]
Martinez: You have the right to talk to a lawyer before questioning and have him present--
Al-Yousif: [Nods head]
Martinez: --during questioning. If you cannot afford a lawyer, one will be appointed for you without cost to you before questioning.
Al-Yousif: [Nods head]
Id.; see Order to Suppress, 49 P.3d at 1180.
Martinez checked off each right as he read. See Order to Suppress, 49 P.3d at 1180. When asked if he understood, Defendant " nodded and mumbled something that sound[ed] like an affirmative response." Id. Martinez asked whether Defendant was sure, and he responded yes. Martinez then turned the form to face Defendant and said: " I need your signature here to show you were the person advised of your rights." Id. (internal quotation marks omitted). Defendant signed his name. Martinez continued: " [I]t says here, 'Knowing my rights and knowing what I'm doing, I now wish to voluntarily talk to you.' To talk with us, I need your signature on that line." Tr. at 4. He pointed to the signature blank in the waiver portion of the form. See Order to Suppress, 49 P.3d at 1180. Defendant signed
his name without asking any questions. See id. Martinez twice asked whether any promises or threats had been made to Defendant to have him make a statement. See id. Defendant responded " What statement?"  Al-Yousif I, 49 P.3d at 1170 (internal quotation marks omitted). Guigli said that Martinez meant that they " didn't make any threats to hurt you or physically harm, or mentally harm you to make this statement. It's voluntary?" Tr. at 4. Defendant shook his head and said " You didn't." Tr. at 5.
Nevertheless, when Guigli asked, " And you're voluntarily going to talk to us about what happened," Defendant said that he would not speak to the detectives until the victim's uncle arrived. Id. Guigli responded, " You understand we have to talk first." Order to Suppress, 49 P.3d at 1182 (internal quotation marks omitted). Defendant initially said, " We'll talk," Tr. at 5; but after Martinez said, " Tell us what happened to [the victim]," id. at 8, Defendant repeated, " I don't feel like talking until his uncle comes," Order to Suppress, 49 P.3d at 1182 (internal quotation marks omitted). Guigli ...