                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3738
                                   ___________

Antoine Owens,                          *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Michael Bowersox,                       *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: April 18, 2002

                                  Filed: May 23, 2002
                                   ___________

Before HANSEN, Chief Judge, MCMILLIAN and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Antoine Owens was convicted of two counts of first-degree murder in state
court and sentenced to two consecutive terms of life imprisonment without eligibility
for parole. After exhausting his state remedies, he filed a petition under 28 U.S.C.
§ 2254 in federal district court. The district court1 denied the petition, and Mr. Owens
appealed.

       We granted Mr. Owens a certificate of appealability on the issue of whether his
confession was obtained in violation of his sixth amendment right to counsel. He
contends on appeal that his right to counsel was violated because an inculpatory
statement was taken from him during a police-initiated interrogation without his
attorney present. We affirm.

                                         I.
      Mr. Owens does not challenge the state court's factual findings, which we
presume to be true absent clear and convincing evidence to the contrary, see
28 U.S.C. § 2254(e)(1); Weaver v. Bowersox, 241 F.3d 1024, 1030-31 (8th Cir.
2001). According to the state appellate court, the day after Mr. Owens was arrested,
counsel was appointed for him and he was arraigned. State v. Owens, 827 S.W.2d
226, 228 (Mo. Ct. App. 1992).

       The state court described the facts that led up to the subsequent communication
between Mr. Owens and the police as follows. After Mr. Owens was arraigned,
Detective Aarnarian Snow went to pick up Mr. Owens's mother and bring her to the
station. See id. The court credited the testimony of Detective Snow, who testified
that during the drive to the station, the petitioner's mother told him that " 'she had
talked to [Mr. Owens] on the phone and had persuaded him to tell the truth and that
[a relative] had nothing to do with the murders.' " Id. She also told the detective that
her son " 'agreed he would talk to the police and tell the truth' " and that he had
" 'indicated that he was willing to talk to the police.' " Id.

      1
       The Honorable Carol E. Jackson, United States District Judge, adopting the
report and recommendations of The Honorable Thomas C. Mummert, III, United
States Magistrate Judge for the Eastern District of Missouri. See 28 U.S.C.
§ 636(b)(1)(B).

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        The state court also found that after Detective Snow and Mr. Owens's mother
arrived at the station, he left her with two police officers and went to the jail to talk
to Mr. Owens. "At the jail, [Detective] Snow told [Mr. Owens] that he 'had received
information from [his mother] that he wanted to make a statement ... that he wanted
to talk,' " and Mr. Owens confirmed that information. Id. at 228-29, 231. Detective
Snow then informed Mr. Owens of his Miranda rights, see id. at 229, and Mr. Owens
made an inculpatory statement that was admitted at trial. The state court also noted
that at the suppression hearing a police investigator testified that Mr. Owens's mother
told him that her son had telephoned her and had said that "he wanted to talk to the
police and tell the truth." Id.

                                            II.
       In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the Supreme Court held,
based on the fifth amendment, that an accused who has invoked his or her right to
counsel, is not subject to further interrogation until counsel has been provided, unless
the accused "initiates further communication ... with the police." In Michigan v.
Jackson, 475 U.S. 625, 629 (1986), the Court, interpreting the sixth amendment, held
that the same prophylactic rule is applicable to a formally-charged defendant "who
has requested appointment of counsel at his [or her] arraignment." According to the
Court,"if police initiate interrogation after a defendant's assertion, at an arraignment
or similar proceeding, of his [or her] right to counsel, any waiver of the defendant's
right to counsel for that police-initiated interrogation is invalid." Id. at 636. A
defendant "initiates" an interrogation if he or she " 'evince[s] a willingness and a
desire for a generalized discussion about the investigation.' " Holman v. Kemna,
212 F.3d 413, 417 (8th Cir. 2000), cert. denied, 531 U.S. 1021 (2000) (quoting
Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983), (plurality opinion,
Rehnquist, J.)).

     The state does not contest the fact that before Detective Snow arrived at the jail
Mr. Owens had invoked his right to counsel, and that Detective Snow, as a state actor,

                                          -3-
was presumed to know that the state court had appointed an attorney for Mr. Owens,
see Jackson, 475 U.S. at 634. We agree with the parties that the critical issue here is
whether Mr. Owens "initiated" the interrogation, which is a legal determination. See
Holman, 212 F.3d at 417.

        Although Mr. Owens did not contact the police himself and ask to talk to them,
and he did not ask his mother specifically to have the police come to the jail, the state
trial court found that there was contact by Mr. Owens through his mother to Detective
Snow, and the state appellate court determined that "the impetus for the interrogation
came from defendant through his mother." Owens, 827 S.W.2d at 229. The appellate
court observed that there "was no suggestion that the police coached her to prompt
defendant to talk to them" and found as fact that "[i]t was defendant who said he
'wanted' or was 'willing' to talk to the police." Id. The court concluded that
Mr. Owens thereby " 'evinced a willingness and a desire for a generalized discussion
about the investigation,' " and that he, and not the police, thus had initiated the
communication during which Mr. Owens made the statement in issue. Id. (quoting
Bradshaw, 462 U.S. at 1045-46).

        In a § 2254 proceeding, we review a state court's decision to determine whether
it is "contrary to, or involve[s] an unreasonable application of, clearly established
Federal law, as determined by" the Supreme Court. 28 U.S.C. § 2254(d)(1).
Mr. Owens does not contend that the state court's decision is opposite that reached
by the Supreme Court on a question of law, and we have not located and the parties
have not cited any Supreme Court case that addresses the waiver of the sixth
amendment right-to-counsel when a defendant expressed a willingness to talk to the
police through a third party. Therefore we conclude that the state court's
determination was not "contrary to" Supreme Court precedent. See id.; see also See
Williams v. Taylor, 529 U.S. 362, 405 (2000).




                                          -4-
       Mr. Owens contends that the state court was unreasonable in its application of
the relevant Supreme Court precedent. To warrant relief under § 2254(d)(1), the state
court's application of Supreme Court precedent must be not only erroneous but also
objectively unreasonable. See Williams, 529 U.S. at 409-410. Although the state's
position undoubtedly would be stronger if Mr. Owens himself had contacted the
police, we do not believe that it was unreasonable for the state court to hold that a
defendant may "evince" a willingness and desire to discuss the crime by
communicating with the police through a third party, especially a close relative. See
Holman, 212 F.3d at 416, 419-20 (defendant initiated contact with police by asking
stepfather to have deputy come to prison to take his confession). Nor do we believe
that relief under § 2254 may be granted to Mr. Owens based on his failure to ask his
mother specifically to send a police officer to the jail. Presuming, as the state court
found, that Mr. Owens told his mother that he wanted or was willing to talk to the
police, we conclude that the state court's determination that Mr. Owens was the
impetus behind the contact and thereby "initiated" the interrogation was not
objectively unreasonable.

                                          III.
       We note that once a defendant invokes his or her right to counsel, the
defendant's initiation of police interrogation is necessary but not sufficient to
establish a waiver of that right. The ultimate question is whether the circumstances
as a whole (including the initiation) indicate that the defendant voluntarily,
knowingly, and intelligently waived his or her right to counsel. See Bradshaw, 462
U.S. at 1045-46; Holman, 212 F.3d at 417. This issue is not before us, however,
because Mr. Owens contends on appeal only that the police, and not he, initiated the
communication. Furthermore, we observe that the state court found that the waiver
of counsel was valid because, inter alia, before Detective Snow interrogated
Mr. Owens, the detective had Mr. Owens "confirm that he did want to talk" and
advised him of his Miranda rights. Owens, 827 S.W.2d at 231.



                                         -5-
                                IV.
Accordingly, we affirm the judgment of the district court.

A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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