883 F2d 1024 Hoskins v. B Vasquez

883 F.2d 1024

Unpublished Disposition

Rudolph R. HOSKINS, Plaintiff-Appellant,
v.
Daniel B. VASQUEZ, Defendant-Appellee.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

1

No. 88-6008.

2

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 27, 1989.
Decided Aug. 15, 1989.

3

Judith N. Keep, District Judge, Presiding.

4

Before NELSON, BOOCHEVER, Circuit Judges, and BROWNING, District Judge.*

5

MEMORANDUM**

6

Petitioner Rudolph Hoskins (Hoskins) was convicted of forcible sodomy, forcible oral copulation, and kidnapping to commit robbery in California state court. Hoskins filed a petition for habeas corpus alleging that his custodial statement was improperly admitted because it was involuntary and obtained in violation of Miranda. He also claimed that there was insufficient evidence to support his conviction for kidnapping to commit robbery. The district court denied the petition without an evidentiary hearing. We review a district court's denial of a habeas petition de novo. See, e.g., Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985). We affirm.

I. Hoskins' Fifth Amendment Claims

7

When questioned by Officer Lampert during a custodial interrogation, Hoskins claimed that he had never met Divine, and had spent the night of the crime at his parent's home. At trial, these statements were admitted to impeach Hoskins' testimony that Divine consented to the sexual relations. In addition, the trial court instructed the jury that it could infer "consciousness of guilt" from Hoskins' contradictory pretrial statement.1

8

Hoskins argues that his custodial statement was inadmissible for any purpose because it was involuntary. In the alternative, Hoskins contends that his statement was obtained in violation of Miranda, and could only be used for purposes of impeachment, see Harris v. New York, 401 U.S. 222 (1971), and that the consciousness of guilt instruction exceeded this permissible use. See Duran v. Stagner, 620 F.Supp. 803 (N.D.Cal.1985).2 Hoskins argues that the district court erred because an evidentiary hearing was necessary to determine whether his custodial statement was voluntary, whether Officer Lampert gave the Miranda warnings, and whether her resumption of questioning one day after Hoskins invoked his right to remain silent violated Miranda. If Hoskins' statement was voluntary and not obtained in violation of Miranda, then it was admissible for any purpose including proof of guilt.

9

Although the district court denied the petition based on its view that the admission of Hoskins' custodial statement constituted harmless error, this court may affirm on any ground finding support in the record. See, e.g., Marino v. Vasquez, 812 F.2d 499, 508 (9th Cir.1987) (citing Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir.1986)). We hold that Hoskins' statement was voluntary, not obtained in violation of Miranda, and that no evidentiary hearing was required.

10

To be entitled to an evidentiary hearing, Hoskins bore the burden of alleging facts, which if true, would entitle him to relief. See, e.g., Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838 (1984). Hoskins never received a hearing on his fifth amendment claims in state court. Consequently, he was entitled to an evidentiary hearing if he alleged specific facts that would entitle him to relief under federal law. This court, however, has held that the allegations cannot be "conclusory and wholly devoid of specifics." Boehme v. Maxwell, 423 F.2d 1056, 1058 (9th Cir.1970); see also Bashor, 730 F.2d at 1233-34 (because petitioner failed to plead facts concerning an alleged courtroom outburst or supporting the conclusion that he was tried in a hostile community, no hearing was required). Also, no evidentiary hearing is necessary when the issue of credibility can be "conclusively decided on the basis of documentary testimony and evidence in the record." Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988); see also United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989); Shah v. United States, No. 87-6382, slip op. 6863, 6868 (9th Cir. June 26, 1989).

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a. Voluntariness

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The only factual allegation germane to the voluntariness of Hoskins' statement was the allegation that he had once been diagnosed as a paranoid schizophrenic and felt threatened by Officer Lampert's questions. In Colorado v. Connelly, 479 U.S. 157, 167 (1986), however, the Supreme Court held that mental impairment alone will not render a confession involuntary, absent police misconduct.

13

Hoskins' sole allegation that remotely suggests police misconduct is that his statement was the "result of subtle psychological pressure capitalizing upon the petitioner's mental disease." No claim is made that the police knew of Hoskins' medical history or how they capitalized upon his alleged weakened mental state. Consequently, Hoskins' involuntariness claim is conclusory and wholly devoid of specifics, so that an evidentiary hearing was unnecessary.

14

b. Alleged Miranda Violations.

15

In his petition, Hoskins claimed he was not readmonished of his Miranda rights by Officer Lampert. Hoskins testified twice during trial, however, that Officer Lampert advised him of his constitutional rights. Officer Lampert also testified that she read Hoskins his rights from a card that she carries with her. Hoskins has pleaded no facts in explanation of his repeated contrary assertions at trial and has introduced no supporting evidence to refute his own admissions.

16

In Blackledge v. Allison, 431 U.S. 63 (1977), Allison contended in his petition for habeas corpus that his lawyer had advised him that at a conference with the judge and prosecuting attorney, it was agreed that he would receive a ten-year sentence upon pleading guilty. He was sentenced to seventeen to twenty-one years. The court held that a habeas petition should not have been summarily dismissed, although at sentencing the defendant denied that any promises influenced his guilty plea. Id. at 78. No denials of the alleged agreement appeared in the record, and at the time the plea was entered, plea bargaining was "a sub rosa process shrouded in secrecy and deliberately concealed by participating defendants, defense lawyers, prosecutors, and even judges." Id. at 76 (emphasis in original). For those reasons, the court could not "conclude that the allegations in Allison's habeas corpus petition, when measured against the 'record' of the arraignment, were so 'patently false or frivolous' as to warrant summary dismissal." Id. at 78 (footnote omitted).

17

In contrast to Allison, Hoskins has furnished no explanation why twice under oath he stated that he was given Miranda warnings. His was not an admission made to further a "sub rosa process" like the plea bargaining of a prior era. Moreover, Officer Lampert testified under oath that she read Hoskins his Miranda rights from a card. In Allison there was no record of statements of the others involved in the alleged bargaining process. The Supreme Court stated in Allison that: "[s]olemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Id. at 74; see also Shah v. United States, No. 87-6382, slip op. at 6871 (9th Cir. June 26, 1989) (a judge may rely on common sense to determine that a defendant's long silence before asserting a claim contradicting his trial testimony suggests that the claim is incredible and no evidentiary hearing is necessary).

18

We conclude that Hoskins' contention in face of the record is so incredible that no evidentiary hearing was required.

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c. Validity of the Waiver

20

Hoskins contends that Officer Lampert's resumption of questioning one day after he invoked the right to remain silent also violated Miranda. Hoskins waived his right to remain silent at the second interrogation. A suspect can validly waive the right to remain silent after invoking it at a prior interrogation. See, e.g., Michigan v. Moseley, 423 U.S. 96, 104 (1975). In Moseley, two hours after a Miranda warning resulted in a refusal to answer questions, the suspect was questioned about a different crime by a different officer in a different place. The court reasoned that his wishes in the first instance had been "scrupulously honored".

21

This court has held that the crucial factor in determining a valid waiver is not such physical boundaries as time or place, but the provision of a "fresh set of warnings" after the initial decision to remain silent. See United States v. Hsu, 852 F.2d 407, 410 (9th Cir.1988); see also Grooms v. Keeney, 826 F.2d 883, 886 (9th Cir.1987). Hoskins' reliance on United States v. Olof, 527 F.2d 752 (9th Cir.1975) is misplaced. In Olof, the suspect's rights were violated because, after choosing to remain silent a second time, police officers overcame his will by bleak descriptions of prison life. The court found that his "right to cut off questioning was not scrupulously honored." Id. at 754. In this case, Hoskins did not invoke the right to remain silent at the second interrogation, nor was he pressured concerning prison life or otherwise threatened.

22

Although Hoskins was questioned about the same crime, the provision of "fresh warnings" was sufficient to render his subsequent waiver valid. Hoskins alleges no facts indicating overbearing pressure during Officer Lampert's questioning, nor does he dispute the version on record. Since his allegations would not entitle him to relief under the federal application of Miranda, he has not met the standard for evidentiary review.

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II. The Consciousness of Guilt Instruction.

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Because Hoskins failed to show that his custodial statement was involuntary or obtained in violation of Miranda, it was admissible for any relevant purpose, including proof of guilt. The court's instruction was therefore not erroneous.

25

III. The sufficiency of the evidence to support a conviction of kidnapping to commit robbery.

26

A federal court will grant habeas relief from a state conviction based on a claim of insufficient evidence only if "no rational trier of fact could, on the record as a whole interpreted in the light most favorable to the prosecution, have found proof of guilt beyond a reasonable doubt." Hines v. Enomoto, 658 F.2d 667, 676 (9th Cir.1981) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).

27

Hoskins claims the prosecution did not show that he formed an intent to rob Divine prior to the kidnapping and therefore did not prove every element of the crime beyond a reasonable doubt as required by In re Winship, 397 U.S. 358 (1970). He argues that Divine's testimony that Hoskins started removing Divine's clothes, "changed his mind", ordered Divine to put them on again and finally demanded his money and jewelry, proves that the robbery was an afterthought. He further contends that the long, meandering walk evinces a motivation of finding a secluded spot to have sex.

28

Hoskins' intent was a factual question for the jury and the jury was properly instructed about the elements of the crime. As the district court found, "a jury could reasonably conclude from the evidence before it that petitioner had a dual intent to rob and to sexually assault Divine at the time he commenced the asportation and that he merely 'changed his mind' " as to which to do first.

29

The judgment is AFFIRMED.

*

Honorable William D. Browning, United States District Judge for the District of Arizona, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

The judge gave CALJIC instruction 2.03 which states:

If you find that before this trial [a] [the] defendant made false or deliberately misleading statements concerning the charge upon which he is now being tried, you may consider such statements as a circumstance tending to prove a consciousness of guilt but it is not sufficient of itself to prove guilt. The weight to be given to such a circumstance and its significance, if any, are matters for your determination.

2

Hoskins also contends that under California law, confessions obtained in violation of Miranda were inadmissible for any purpose. People v. Smith, 34 Cal.3d 251, 667 P.2d 149, 193 Cal.Rptr. 692 (1983). Federal habeas relief, however, will be granted only for violations of federal law and will not be granted for erroneous interpretations or applications of state law. See Engle v. Isaac, 456 U.S 107, 119 (1982); see also Hinman v. McCarthy, 676 F.2d 343, 349 (9th Cir.), cert. denied, 459 U.S. 1048 (1982)