Daniel Cummings, Jr. v. MARVIN POLK, Warden, Central No. 06-11  Prison, Raleigh, North Carolina

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DANIEL CUMMINGS, JR.,
Petitioner-Appellant,
v.
MARVIN POLK, Warden, Central No. 06-11 
Prison, Raleigh, North Carolina;
ROY COOPER, Attorney General,
State of North Carolina,
Respondents-Appellees. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, District Judge.
(5:01-hc-00910-BO)
Argued: December 1, 2006
Decided: February 1, 2007
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Williams joined.
COUNSEL
ARGUED: Jennifer Harjo, SMITH, SMITH & HARJO, Wilmington,
North Carolina; Nora Henry Hargrove, Wilmington, North Carolina,
for Appellant. Steven Mark Arbogast, Special Deputy Attorney Gen-
eral, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh,

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North Carolina, for Appellees. ON BRIEF: Roy Cooper, Attorney
General of North Carolina, Raleigh, North Carolina, for Appellees.
OPINION
KING, Circuit Judge:
Appellant Daniel Cummings, Jr., facing a death sentence imposed
by the Superior Court of Brunswick County, North Carolina, appeals
from the district court’s dismissal of his § 2254 petition for federal
habeas corpus relief. See Cummings v. Polk, No. 5:01-HC-910-BO
(E.D.N.C. January 28, 2006) (the "District Court Decision").1 Cum-
mings has been awarded two certificates of appealability ("COAs"):
(1) the district court issued a COA on Cummings’s claim that his due
process rights were violated by the admission in his sentencing trial
of evidence relating to an unadjudicated murder as a "course of con-
duct" aggravator (the "Evidence Claim"); (2) we granted Cummings
a separate COA on his claim that a police officer’s Miranda warnings,
which included the assertion that he could be required to pay for an
appointed lawyer, contravened his Fifth and Sixth Amendment rights
(the "Miranda Claim").2 As explained below, we deny relief on both
Claims and affirm.
I.
A.
The circumstances underlying Cummings’s appeal involve two
separate murders and the investigations relating thereto. The specific
convictions and sentence giving rise to this appeal relate to the rob-
1The District Court Decision is found at J.A. 2187-244. (Citations
herein to "J.A. ___" refer to the contents of the Joint Appendix filed in
this appeal.)
2Section 2253(c)(1)(A) of Title 28 precludes a court of appeals from
exercising jurisdiction "[u]nless a circuit justice or judge issues a [COA].
Pursuant to § 2253(c)(2), a COA "may issue . . . only if the applicant has
made a substantial showing of the denial of a constitutional right."
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bery and death of Burns Babson in Brunswick County, North Caro-
lina, on April 22, 1994. At the sentencing phase of the underlying
state court trial, the prosecution sought to prove the aggravating cir-
cumstance of "course of conduct involving a crime of violence
against another person," and presented evidence relating to the unad-
judicated murder of Lena Hales on April 20, 1994, in Robeson
County, North Carolina (the "Hales Evidence"). When Cummings
was arrested on other charges on April 23, 1994, in Sampson County,
North Carolina, he was a suspect in both the Babson and Hales
crimes, and he was thereafter interviewed several times by the author-
ities of Brunswick, Sampson, and Robeson Counties.
The Evidence Claim implicates the admission, during the sentenc-
ing phase of trial, of the Hales Evidence to prove the aggravating cir-
cumstance of a "course of conduct involving a crime of violence
against another person," and the instructions given the jury regarding
that evidence. The Miranda Claim relates to the April 24, 1994 inter-
view of Cummings by Detective Tom Hunter of the Brunswick
County Sheriff’s Department (the "Hunter Interview").
B.
On April 22, 1994, Burns Babson, a 74-year-old North Carolinian
who operated a country store in the small community of Ash, in
Brunswick County, was killed during the robbery of his business. The
relevant facts surrounding the Babson murder, as spelled out by the
Supreme Court of North Carolina, were in part as follows:
At the time of his death, [Burns] Babson was operating a
store [near] his home in Ash, North Carolina, where he
resided with his wife of over fifty-two years.
. . . .
At trial, the State’s evidence tended to show the follow-
ing: On 22 April 1994, while in her home, Mrs. Babson
heard three or four gunshots fired in rapid succession. She
ran into the yard and saw a man standing in the doorway of
her husband’s store. The man went around to the front of the
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store building, fired a gun at Mrs. Babson, and then got into
a white van parked near the store. Mrs. Babson ran to a
neighbor’s house and called 911. She then entered the store,
where she found her husband lying on the edge of a recliner
behind the counter with a bullet wound in his head.
Ronnie Babson, Mr. Babson’s son . . . entered the store
and went over to where Mr. Babson’s body was lying. He
moved Mr. Babson’s head from the chair and placed his
body on the floor. He noticed that the .38-caliber revolver
which his father ordinarily kept behind the counter was
missing.
See State v. Cummings, 488 S.E.2d 550, 555-56 (N.C. 1997) (the
"State Court Decision").3
According to the state court records, Cummings was arrested on
April 23, 1994, in Sampson County, North Carolina, for driving a
stolen vehicle matching the description of a vehicle involved in sev-
eral break-ins in that county. Following the arrest, the Sampson
County authorities contacted nearby police departments to check for
outstanding warrants on Cummings. As a result, Detective Tom
Hunter of the Brunswick County Sheriff’s Department and Detective
E.B. Smith of the Red Springs Police Department (in Robeson
County) went to the Sampson County Jail to question Cummings
regarding the Babson and Hales murders.
Cummings was interviewed at least six times in late April 1994
before being arrested for the Babson murder, and he was given
Miranda warnings on each occasion.4 The Miranda Claim arises from
3The State Court Decision, rendered on July 24, 1997 by the Supreme
Court of North Carolina in Cummings’s direct appeal, constitutes the
state court adjudication of the two claims under review here — the Evi-
dence Claim and the Miranda Claim — to which we accord AEDPA def-
erence. See infra Part II.
4According to state court testimony, Cummings was interviewed on six
occasions prior to his arrest on April 28, 1994, for the Babson crimes:
(1) by Detective Mattocks of the Sampson County Sheriff’s Department,
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the Hunter Interview, which was Cummings’s initial interview with
Detective Hunter regarding the Babson crimes. According to Detec-
tive Hunter’s testimony at a pre-trial suppression hearing conducted
on November 14, 1994, he questioned Cummings in the Sampson
County Jail on April 24, 1994, concerning the Babson robbery and
murder. At the start of the Hunter Interview, Hunter reviewed a
Miranda rights form with Cummings. The form provided that "[i]f
you want a lawyer before or during questioning but cannot afford to
hire one, one will be appointed to represent you at no cost before any
questioning." J.A. 133. Detective Hunter disagreed with the language
of the form, crossed out the words "at no cost," and told Cummings,
"I don’t know why they put in this at no cost. If you are found inno-
cent, it is no cost but if you are found guilty there is a chance the state
will require you to reimburse them for the attorney fees." See id. at
134-35. According to the State Court Decision, Hunter testified that
after Cummings waived his Miranda rights, he stated the following:
[H]e was picked up by a black male named Joe driving a
white van. . . . [Cummings] stated that he and Joe had
stopped at Mr. Babson’s store for a drink of water on the
day of the murder. They left the store only to return twenty
or thirty minutes later intending to rob Mr. Babson. [Cum-
mings] parked the van and then walked around the store. He
heard four shots fired, went into the store, and saw Mr. Bab-
son lying behind the counter. [Cummings] saw a woman
near the store, fired one shot at her, and returned to the van
where he found Joe waiting.
Cummings, 488 S.E.2d at 556-57.
at the Sampson County Jail on April 23, 1994; (2) by Detective Smith
of the Red Springs Police Department, at the Sampson County Jail on
April 23, 1994; (3) by Detective Hunter of the Brunswick County Sher-
iff’s Department, at the Sampson County Jail on April 24, 1994 (the
Hunter Interview); (4) by Detective Smith at the Sampson County Jail on
April 25, 1994; (5) by Detective Smith at the Red Springs Police Depart-
ment on April 25, 1994; and (6) by Officers Johnson and Storms, as well
as Detective Hunter, at the New Hanover County Sheriff’s Department
on April 25, 1994 during a polygraph examination.
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During the days immediately following the Hunter Interview,
Cummings was interviewed on other occasions and gave additional
statements relating to the robbery and events at Babson’s store. On
April 25, 1994, following a fresh Miranda warning, and in the course
of a polygraph examination, Cummings acknowledged his involve-
ment in the Babson robbery as follows:
I parked the van outside and left the door open. I went inside
and asked the old man about the pool tables. He told me to
go on in and cut the lights on. I told the old man to, "Give
me your money". The old man went towards the cash regis-
ter and I thought he was going to get the money. The old
man came back with a gun and shot at me. I crawled around
the counter and we struggled over the gun. I believe I heard
or counted about four shots that went off inside the store. I
took the old man’s wallet . . . . I did not see where the old
man got shot. I got the money out of the cash register and
left the old man laying face down in the chair.
J.A. 274-75.
On May 23, 1994, Cummings was indicted in Brunswick County
for the first degree murder of Burns Babson. On October 17, 1994,
he was again indicted in Brunswick County for the related offenses
of robbery with a dangerous weapon and assault with a deadly
weapon with intent to kill. Prior to his trial, Cummings moved to sup-
press the various statements and confessions he made after his April
23, 1994, arrest, contending that, among other things, his Miranda
rights had been contravened.5 In his suppression effort, Cummings
5At the suppression hearing, Cummings contended that his statements
and confessions were not voluntary because he was suffering from drug
withdrawal. See State v. Cummings, 488 S.E.2d 550, 563 (N.C. 1997)
Cummings also maintained in the district court that his statements should
have been suppressed because his lengthy pre-charge detainment (six
days) was a violation of his due process rights. The district court granted
summary judgment against Cummings on this issue, and Cummings was
not granted a COA thereon. The detainment issue was not raised in the
trial court, but was reviewed and denied (on plain error review) by the
State Court Decision. See Cummings, 488 S.E.2d at 563.
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asserted that Hunter’s actions with respect to the Miranda warnings
of April 24, 1994, violated his Fifth and Sixth Amendment rights.
Cummings further maintained that, due to the erroneous Miranda
warnings and their "chilling" of his Sixth Amendment right to coun-
sel, all statements he made thereafter must be suppressed. These
assertions underlie the COA issued with respect to the Miranda
Claim.
The evidence presented in the guilt phase of Cummings’s trial in
Brunswick County, which lasted from late November 1994, to
December 16, 1994, implicated Cummings in the Babson crimes.
Witness Donald Ray Long testified that, on the day of the Babson
robbery and murder, Cummings stopped at Long’s farm supply store,
about a mile east of Babson’s store, asked for directions from Long,
and then drove off in the direction of Babson’s store. Another wit-
ness, Martha Fowler, testified that Cummings twice entered her store
— about six miles from Babson’s — on the evening of the Babson
crimes. Officer Thomas Trochum, an expert in firearms identification,
testified that Babson’s death resulted from two fatal gunshot wounds,
one in the eye and the other in the lower back, from .44 caliber bullets
that could not have been fired by Babson’s own .38 caliber revolver.
Most significantly, Cummings’s statements were introduced, includ-
ing his statement during the polygraph examination of April 25, 1994,
admitting that he had robbed Babson’s store and engaged in a struggle
that resulted in Babson being shot. On December 16, 1994, the jury
found Cummings guilty of all three offenses relating to the Babson
murder.
C.
During the trial’s sentencing phase, which was conducted before
the same jury and also ended on December 16, 1994, the prosecution
introduced evidence (over objection) concerning the unadjudicated
murder of Lena Hales. Ms. Hales, an 80-year-old woman, had been
killed in nearby Robeson County, North Carolina, two or three days
before the Babson murder. Ms. Hales’s daughter, Barbara Kinlaw,
testified that she found her mother at home unconscious and badly
beaten on the morning of April 20, 1994, and that Ms. Hales had died
from her injuries later that day. Cummings admitted that he had
robbed Ms. Hales at her home during the early morning hours of
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April 19, 2004, but denied hurting her in any way. As spelled out in
the State Court Decision:
[Detective] Edward Smith testified that on 26 April 1994,
[Cummings] made a statement in which he admitted that he
broke into Mrs. Hales’ home looking for money to buy
drugs. He testified that Mrs. Hales retrieved her pocketbook
from a closet and gave him all of the money that she had in
it. [Cummings] told her not to yell, or he would come back
and hurt her.
Dr. Deborah L. Radisch, the associate chief medical
examiner for the State of North Carolina, testified that she
performed the autopsy on Lena Hales. Dr. Radisch noted
multiple bruising upon the head, neck, shoulder, chest, back,
arms, and legs. Her internal examination revealed a bruising
and swelling of the top of the scalp. In Dr. Radisch’s opin-
ion, Mrs. Hales’ death was caused by a "blood clot over the
brain due to a blunt trauma of the head."
Cummings, 488 S.E.2d at 557-58.
Detective Smith testified that, when he interviewed Cummings on
April 26, 1994, Cummings gave a statement regarding his activities
from April 18 to April 20, 1994. In summary, Cummings stated that
sometime around midnight on April 19, he went door to door in Red
Springs, making inquiries of those who answered. He said that if
someone had opened a door and a pocketbook had been visible and
nearby, he planned to grab it and run. After this effort proved unsuc-
cessful, Cummings met with two friends and spent an hour or so look-
ing for drugs. Unable to find drugs, they parted ways around 2:30
a.m. and Cummings told the others that he was going to find some
money. Cummings walked toward a nearby store that he contem-
plated breaking into but, fearing an alarm, decided against doing so.
Cummings then noticed a house behind the store without any nearby
vehicles or lights. Cummings kicked out a window and entered the
house, walking over a bed and moving into a hallway. He noticed a
lady standing in another room peering out a door and, as she turned,
Cummings told her to give him her money. As she pleaded for her
safety, Cummings grabbed her arm and led her to a bedroom were she
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retrieved a pocketbook and gave him all her money. Cummings
stuffed the money in his pants, told the lady to lie down in bed, threat-
ened to come back and hurt her if she got up or yelled, and then left.
Detective Smith testified that Cummings’s statements on the Hales
crimes were consistent with his observations of Ms. Hales’s home
when he answered a call there early on April 20, 1994. When Smith
arrived at the home, Ms. Hales had already been transported to a hos-
pital after being discovered by her daughter. Smith noted morning
papers on the front porch dated April 19 and 20, 1994. Cummings
denied hurting Ms. Hales, asserting that he had only robbed the
woman and left her on the bed unharmed. At the time of the Babson
trial, Cummings had been indicted in Robeson County for the Hales
murder and related offenses, but the charges were unadjudicated.
In the sentencing phase of Cummings’s trial, the court instructed
the jury regarding the course of conduct aggravator as follows:
If you find from the evidence beyond a reasonable doubt
that in addition to killing [Babson], [Cummings], on or
about the alleged date, was engaged in a course of conduct
which involved the commission of another crime of violence
against another person and that these other crimes were
included in the same course of conduct in which the killing
of [Babson] was also a part, you would find this aggravating
circumstance . . . .
J.A. 541. By its Verdict, the jury recommended that Cummings
receive the death penalty for the Babson murder, finding it part of a
course of conduct that included crimes of violence against another
person (Lena Hales), and that the Babson murder had been committed
for pecuniary gain. The court imposed sentence on December 16,
1994, including the death penalty for the Babson murder, forty years
for robbery with a dangerous weapon, and ten years for assault with
a deadly weapon.
On July 24, 1997, the State Court Decision affirmed Cummings’s
convictions and sentences relating to the Babson murder. See Cum-
mings, 488 S.E.2d at 555. The Supreme Court of the United States
thereafter denied certiorari. See Cummings v. North Carolina, 522
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U.S. 1092 (1998). On December 4, 1998, Cummings filed a motion
for appropriate relief (the "MAR") in the Superior Court of Bruns-
wick County (the "MAR Court"), which he later amended.6 On May
9, 2001, the MAR Court conducted an evidentiary hearing on the
claims asserted in the MAR, and it denied those claims by Order of
June 19, 2001 (the "MAR Decision").7 The Supreme Court of North
Carolina thereafter denied certiorari on the MAR Decision. See State
v. Cummings, 575 S.E.2d 34 (N.C. 2002).
On November 19, 2001, while his certiorari petition was pending
in the Supreme Court of North Carolina, Cummings filed the § 2254
petition that gives rise to these proceedings, seeking habeas corpus
relief in the Eastern District of North Carolina. On January 31, 2006,
the district court dismissed three of the § 2254 petition’s twenty-one
claims, and the District Court Decision granted summary judgment to
the State on the remaining eighteen claims. The district court, on May
18, 2006, granted Cummings a COA on the Evidence Claim. We
thereafter granted Cummings a COA on the Miranda Claim. We pos-
sess jurisdiction pursuant to 28 U.S.C. § 2253.
II.
We review de novo a district court’s award of summary judgment,
applying AEDPA’s deferential standard of review to the state court’s
adjudication of a petitioner’s claims on their merits. Robinson v. Polk,
438 F.3d 350, 354 (4th Cir. 2006).8 Pursuant to AEDPA, we may
award habeas corpus relief on a claim that was adjudicated on its mer-
its in state court only if the adjudication "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 "resulted in a decision that was based on an unrea-
6A defendant convicted of a crime in North Carolina is entitled to seek
post conviction relief by way of an MAR. See N.C. Gen. Stat. § 15A-
1401. An MAR is not identical to a habeas corpus petition, but it pro-
vides an avenue to obtain relief from "errors committed in criminal tri-
als." Id.
7The MAR decision is found at J.A. 1626-78.
8"AEDPA" is the well-known acronym for the Antiterrorism and
Effective Death Penalty Act of 1996.
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sonable determination of the facts in light of the evidence presented
in the State court proceeding." 28 U.S.C. § 2254(d). As the Supreme
Court has explained, a state court decision is contrary to clearly estab-
lished federal law if the "court arrives at a conclusion opposite that
reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set
of materially indistinguishable facts." Williams v. Taylor, 529 U.S.
362, 413 (2000). A state court decision is an unreasonable application
of federal law when it "correctly identifies the governing legal rule
but applies it unreasonably to the facts of a particular prisoner’s case."
Id. at 407. A state court decision may also be an unreasonable appli-
cation of federal law if it applies Supreme Court precedent "in a dif-
ferent factual context from the one in which the precedent was
decided and one to which extension of the legal principle of the prece-
dent is not reasonable [or] fails to apply the principle of a precedent
in a context where such failure is unreasonable." Robinson, 438 F.3d
at 355 (internal quotation marks omitted).
III.
Two issues are presented for consideration in this appeal. First, in
connection with the Evidence Claim, the district court granted a COA
on Cummings’s contention that the admission of the Hales Evidence
as an aggravating factor during the trial’s sentencing phase violated
his constitutional rights. Second, on the Miranda Claim, we granted
Cummings a COA on his claim that his Fifth and Sixth Amendment
rights were violated by the admission at trial of statements that
resulted from an erroneous Miranda warning at the Hunter Interview.
We address these claims in turn.9
A.
Cummings first contends that, at the time of the Babson trial, he
was presumed innocent of the unadjudicated Hales murder used to
prove the course of conduct aggravating factor, and that this aspect
of his trial was constitutionally flawed by the admission of the Hales
9Because we affirm the district court’s decisions on both claims, we
need not reach or address whether an improper Miranda warning given
at the Hunter Interview might have been harmless error.
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Evidence. Alternatively, he maintains that the trial court violated his
due process rights by admitting the Hales Evidence without an
instruction that the jury was obliged to find each element of the Hales
murder proven beyond a reasonable doubt.
In connection with the Evidence Claim, Cummings has failed, as
the district court properly observed, to point us to any clearly estab-
lished federal law, determined by the Supreme Court, that precludes
the admission of evidence of unadjudicated crimes in capital sentenc-
ing proceedings. See District Court Decision 30. There is authority in
our Circuit, however, as well as in others, that such evidence may
properly be utilized in a capital sentencing trial. See United States v.
Higgs, 353 F.3d 281, 322-23 (4th Cir. 2003) (upholding admission of
evidence of unadjudicated obstruction of justice offense during capital
sentencing); Devier v. Zant, 3 F.3d 1445, 1464 (11th Cir. 1993)
(allowing introduction of evidence of unadjudicated rape offense to
prove aggravating circumstance at capital sentencing).
On direct review of Cummings’s conviction and sentence, the State
Court Decision ruled that there was sufficient evidence — by way of
Cummings’s statements — to justify the admission of the Hales Evi-
dence in connection with the course of conduct aggravator. See State
v. Cummings, 488 S.E.2d 550, 572 (N.C. 1997). The court deemed the
evidence sufficient to show that Cummings was seeking money to
buy drugs when he broke into the Hales home. See id. at 573. Ms.
Hales was badly beaten, resulting in her death, and the court con-
cluded that the evidence demonstrated a link between the Babson and
Hales murders: both crimes had occurred within a few days of one
another; both were committed for the purpose of obtaining drug
money; and both involved elderly victims. See id. at 572-73. In addi-
tion, Cummings admitted robbing both of his victims and strongly
implicated himself in both murders, which were committed in close
geographic proximity to one another. Thus, the court found the Hales
Evidence sufficient to be submitted to the jury at sentencing. See id.
at 573.
We recognize that at least two judges, including a Supreme Court
Justice, have expressed disagreement with this proposition. See Wil-
liams v. Lynaugh, 484 U.S. 935, 937-38 (1987) (Marshall, J., dissent-
ing) ("Whether a State may introduce evidence of unadjudicated
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offenses in the sentencing phase of a capital trial is a vexing question.
. . . In my view, imposition of the death penalty in reliance on mere
allegations of criminal behavior fails to comport with the constitu-
tional requirement of reliability."); see also Devier v. Kemp, 484 U.S.
948, 949 (1987) (Marshall, J., dissenting) ("[T]he admission of evi-
dence of unadjudicated crimes at the sentencing phase impinges on
the unique constitutional concern for reliability in capital trials.").
Indeed, the experienced district judge who ruled against Cummings
in the District Court Decision gave voice to his own misgivings about
the use of the Hales Evidence against Cummings in the sentencing
trial. See District Court Decision 30 n.12 ("This Court, while recog-
nizing [Cummings] cannot succeed on his claim, is wary of the con-
stitutional implications that may arise from the admission of
unadjudicated criminal conduct in this context."). In any event, we are
obliged in this proceeding to apply the deferential AEDPA standard
of review to the Evidence Claim. Assessed in that context, the State
Court Decision on the admission of the Hales Evidence in the sen-
tencing trial was not contrary to, nor an unreasonable application of,
clearly established federal law, as determined by the Supreme Court.
Furthermore, Cummings has failed to point us to any clearly estab-
lished federal law mandating that a trial court instruct a sentencing
jury that each element of an unadjudicated crime, when being used to
prove an aggravating factor in a capital sentencing proceeding, must
be proven beyond a reasonable doubt. At Cummings’s sentencing
trial, the court instructed the jury regarding the course of conduct
aggravator as follows:
If you find from the evidence beyond a reasonable doubt
that in addition to killing [Babson], [Cummings], on or
about the alleged date, was engaged in a course of conduct
which involved the commission of another crime of violence
against another person and that these other crimes were
included in the same course of conduct in which the killing
of [Babson] was also a part, you would find this aggravating
circumstance . . . .
J.A. 541. Addressing the adequacy of this instruction on direct appeal,
the State Court Decision applied a plain error standard of review
(Cummings had failed to object to the instruction concerning the
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course of conduct aggravating circumstance) and found no error. See
Cummings, 488 S.E.2d at 573. In view of the lack of Supreme Court
authority addressing this matter or mandating an instruction in a capi-
tal sentencing trial that each element of an unadjudicated crime must
be proven beyond a reasonable doubt, we are constrained to conclude
that the State Court Decision concerning the instruction on the Hales
Evidence was not contrary to, nor an unreasonable application of,
clearly established federal law, as determined by the Supreme Court.
Thus, in applying the deferential AEDPA standard of review, we
reject the Evidence Claim on its merits.
B.
Cummings next contends, in the context of the Miranda Claim, that
the statements he made after the Miranda warnings given by Hunter
should have been suppressed because they were secured in violation
of his constitutional rights, as a result of Hunter’s erroneous advice
that a court-appointed lawyer is not free. It is well established, of
course, that a state must provide a court-appointed lawyer to an indi-
gent who has requested one, prior to a custodial interrogation. See
Miranda v. Arizona, 384 U.S. 436, 474 (1966). Under North Carolina
law, an indigent is entitled to a court-appointed lawyer once he is
involved in adversarial proceedings that jeopardize his liberty inter-
ests. See N.C. Gen. Stat. § 7A-451 ("An indigent person is entitled to
services of counsel . . . . as soon as feasible after the indigent is taken
into custody . . . . [and that right] continues through any critical stage
of the action or proceeding."). North Carolina, as well as certain other
states, retains a general lien against such an indigent’s future earnings,
should he later become able to pay. See N.C. Gen. Stat. § 7A-455(b).
The Supreme Court of North Carolina addressed and rejected the
issue presented in the Miranda Claim when it rendered the State
Court Decision:
The rights read by Detective Hunter to [Cummings] on 24
April 1994 constituted a fully effective equivalent of the
Miranda rights. Miranda does not require that the officer
inform an indigent defendant that an attorney would be
appointed for him at no cost. All that is required is that the
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defendant be informed that an attorney will be appointed for
him before questioning if he so desires.
. . .
Further, the additional information supplied by Detective
Hunter to [Cummings] was accurate. Under North Carolina
law, indigents are entitled to court appointed counsel when-
ever they are involved in adversarial proceedings that jeop-
ardize their liberty interests.
. . . .
Informing [Cummings] that he may be required to reim-
burse the State for the costs of his attorney also does not
"chill" his right to have counsel provided.
State v. Cummings, 488 S.E.2d 550, 565-66 (N.C. 1997). In support
of its decision on this issue, the court relied on Fuller v. Oregon,
where the Supreme Court upheld the constitutionality of an Oregon
statute authorizing the state’s recoupment of expenses for providing
counsel to an indigent who has acquired the financial ability to pay.
417 U.S. 40, 54 (1974). In addressing Fuller’s constitutional chal-
lenge to the Oregon statute, the Supreme Court rejected the conten-
tion that knowledge that an indigent might later be obliged to repay
the state for the costs and expenses of his appointed lawyer might
"chill" his Sixth Amendment right to counsel. Id. at 51-52. In so rul-
ing, the Court observed that "[t]he fact that an indigent who accepts
state-appointed legal representation knows that he might someday be
required to repay the costs of these services in no way affects his eli-
gibility to obtain counsel." Id. at 53.
In this appeal, Cummings maintains that the State Court Decision
on the Fuller principles was an unreasonable application of Supreme
Court law, because the issue in Fuller — whether it was unconstitu-
tional to require an indigent to repay the state for his appointed coun-
sel — is not the same as the Miranda Claim. Cummings contends in
his Miranda Claim that Hunter’s reading of his Miranda rights, cou-
pled with the statement that an appointed lawyer would not be free,
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was an inadequate Miranda warning under the Fifth Amendment —
indeed, he contends that it was constitutionally erroneous. Cummings
contends that Hunter’s version of the Miranda warning resulted in an
"unintentional relinquishment of his right to an attorney," which
would constitute an improper waiver of his Miranda rights. Cum-
mings maintains that, because the Miranda warning was constitution-
ally flawed, the statements he made at the Hunter Interview and
thereafter should have been suppressed.
Under Miranda, an officer who takes a suspect into custody must
inform him, among other things, of his right to have counsel
appointed before questioning and that, if he cannot afford counsel,
one will be appointed for him if he chooses. 384 U.S. at 472. Of
course, as the Court has explained, the right to counsel during a custo-
dial interrogation can be waived:
Miranda holds that the defendant may waive effectuation of
the rights conveyed in the warnings provided . . . . the relin-
quishment of the right must have been voluntary . . . . [and]
the waiver must have been made with a full awareness of
both the nature of the right being abandoned and the conse-
quences of the decision to abandon it.
Moran v. Burbine, 475 U.S. 412, 421 (1986) (internal quotation
marks omitted). Thus, the Fifth Amendment question raised in the
Miranda Claim is whether the Miranda warnings given at the Hunter
Interview were sufficient to make Cummings aware of his rights and
the consequences of waiving them.
It is important that, as the Supreme Court has explained, Miranda
does not mandate a precise formulation of its warnings. See Duck-
worth v. Eagan, 492 U.S. 195, 202 (1989). Instead, "[t]he inquiry is
simply whether the warnings reasonably convey to a suspect his rights
as required by Miranda." Id. at 203 (internal quotation marks omit-
ted). In Duckworth, the suspect was read a waiver form which, in
advising him of his Miranda rights, included a provision that a lawyer
would be appointed "if and when you go to court." Id. at 198. Duck-
worth signed the waiver and then made an exculpatory statement to
the officers. See id. His exculpatory statement conflicted, however,
with an inculpatory statement he made to the authorities at a later
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date. Id. at 199. When the conflicting statements were both presented
against Duckworth at trial, the court ruled that the Miranda warnings
had been adequate, observing that "th[e] instruction accurately
described the [state’s] procedure for the appointment of counsel." Id.
at 204.
In this situation, the form utilized by Detective Hunter on April 24,
1994, in advising Cummings of his Miranda rights at the Hunter
Interview, correctly stated that "[i]f you want a lawyer before or dur-
ing questioning but cannot afford to hire one, one will be appointed
to represent you at no cost before any questioning." J.A. 133. During
the advice of rights process at the Sampson County Jail, however,
Hunter crossed out the words "at no cost" and advised Cummings "I
don’t know why they put in this at no cost. If you are found innocent,
it is no cost but if you are found guilty there is a chance the state will
require you to reimburse them for the attorney fees." See id. at 133-
34. Like the Miranda warnings in Duckworth, Hunter’s statement that
a suspect could be required to pay for his lawyer was an accurate
description of North Carolina’s statutory procedure for the appoint-
ment of counsel. See N.C. Gen. Stat. § 7A-455(a).
Although the impact of Hunter’s ad hoc statements to Cummings
may be debatable, we are obliged in this § 2254 proceeding to apply
AEDPA’s deferential standard of review. In light of the principles of
Miranda, and Duckworth, the State Court Decision’s application of
Fuller, viewed in the context of the facts presented, was not unreason-
able. Because Cummings has failed to show that the State Court Deci-
sion was not contrary to, nor an unreasonable application of, clearly
established federal law, as determined by the Supreme Court, the
Miranda Claim must also be rejected.
IV.
Pursuant to the foregoing, we reject the Evidence Claim and the
Miranda Claim, and we affirm the district court.
AFFIRMED
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