REVISED DECEMBER 16, 1998
UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 98-20504 ___________________________
WILLIS JAY BARNES,
Applicant,
VERSUS
GARY L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division,
Respondent.
___________________________________________________
Appeal from the United States District Court for the Southern District of Texas ___________________________________________________ November 9, 1998
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Willis Jay Barnes, a Texas death row inmate, seeks a
certificate of appealability (“COA”) to challenge the district
court’s denial of his petition for writ of habeas corpus. For the
reasons that follow, we deny Barnes’s application for a COA.
I. Facts & Procedural History
The district court below provided an in-depth and complete
description of the facts. We recount the facts only as necessary
for our analysis.
A. Facts
The body of eighty-four-year-old Helen Greb was found in her home in Houston, Texas on February 14, 1988. Her nude body was
badly bruised and she had been sexually assaulted, probably with
a bottle. Her ribs and back were broken and she had been
manually strangled. The cause of death was “asphyxia due to
manual strangulation and compression of the chest.”
A kitchen window in Ms. Greb’s house had been pried open and
the telephone wire outside the house had been cut. A second
window at the back of the house had been opened and the screen
pried loose. There was a footprint from a tennis shoe in the
kitchen sink below the kitchen window. Police determined that a
television set and two firearms were missing from the house.
The Houston Police located these missing items in the
possession of Robert Glenn “Pokey” Davis, a known dealer in
stolen property and a police informant. Davis told the police
that he had received the stolen items from Willis Jay Barnes. On
February 17, 1998, an arrest warrant for Barnes was issued
charging him with theft by receiving, a misdemeanor offense.
Barnes was arrested the same day by Sergeant David E. Calhoun of
the City of Houston Police Department, the primary investigator
of Ms. Greb’s murder. Calhoun and his partner, Sergeant Robert
Parish, handcuffed Barnes and read him his Miranda rights.
Barnes indicated that he understood his rights and had no
questions. Barnes was told only that he was under arrest for
possession of stolen property, not that he was a capital murder
suspect.
At approximately 6 pm, Calhoun brought Barnes into a police
2 interview room, where he was again read his Miranda rights. At
the pretrial suppression hearing, Barnes testified that Calhoun
initially told him that a woman was dead and Calhoun asked
whether Barnes knew anything about her. Barnes also testified
that Calhoun stated that police had recovered skin fragments from
the dead woman’s fingernails and had taken a shoe print from the
home that would match Barnes’s shoes. Calhoun, however, did not
directly tell Barnes that he was a murder suspect.
At approximately 8 pm, after two hours of interrogation,
Barnes agreed to give a written statement (the “first statement”)
stating that he had entered Ms. Greb’s house through an open
door, had found the house already ransacked, and had stolen the
television and the two firearms. The statement was made on a
“statement of a person in custody” form, which includes Miranda
warnings on the top of every page. Calhoun reviewed these
warnings with Barnes, and Barnes placed his initials next to each
of the warnings. Barnes waived his Miranda rights and initialed
this waiver on the statement form.
After the first statement was signed, around 10 pm, Sergeant
J.W. Belk, who had witnessed the signing, remained alone with
Barnes in the interview room. Belk had participated in a 1984
investigation of Barnes for burglary involving the aggravated
sexual assault of an elderly woman. That investigation had
resulted in Barnes pleading guilty to the burglary of four homes.
Barnes served approximately three years of his thirty-year
3 sentence and was released from prison in October 1987.
At approximately 10:30 pm, Sergeant Parish entered the
interview room to get permission to search Barnes’s car. Barnes
gave this permission. In addition, upon request, Barnes removed
his shirt. He had scratches on his chest, on both arms, and
under his left eye. The police took Barnes’s clothes and
provided him with a trusty uniform. They also took Barnes’s
shoes as evidence. Barnes was not given socks or shoes because
the police were unable to find any. Calhoun testified that the
next morning he brought in a pair of his own shoes and a pair of
socks for Barnes.
Around midnight, Calhoun showed Barnes one of the stolen
firearms and a picture of the television set. He asked Barnes if
he would give a written statement identifying the items. Barnes
agreed to give such a statement. Calhoun again reviewed the
Miranda warnings with Barnes, who stated that he understood them.
Calhoun began to type the statement (the “second statement”) at
approximately half past midnight. At approximately 1 am, Barnes
read the statement, made and initialed some changes, and signed
the statement in the presence of Belk and Parish. In this
statement, Barnes admitted entering the house and stealing the
firearms and television. However, he denied killing Greb.
After signing the second statement, Barnes was taken to the
city jail. He was placed in a holding cell and then talked to a
bailbondsman. Barnes slept from approximately 2:30 am to 4:30
am, when he was awakened for breakfast. After breakfast, he
4 slept from approximately 5:10 am to 8:00 am. Barnes testified
that he slept for a total of approximately five hours.
At approximately 8:30 am, February 18, 1988, Sergeant R.L.
Doyle and Sergeant Sharon Durham brought Barnes to court. Barnes
was dressed in a jail uniform and was still barefoot. Barnes was
brought before Judge Michael McSpadden. Barnes was informed that
he was charged with the offense of “burglary of a habitation with
intent to commit murder,” a first-degree felony charge. Judge
McSpadden also informed Barnes of his Miranda rights. As he
stated each right, Judge McSpadden asked Barnes if he understood
the right, and Barnes stated “Yes.”
Judge McSpadden also questioned Barnes about his education.
Barnes stated that he had received his G.E.D. and had twenty-nine
hours of college credit. He also stated that he had failed high
school English, but had taken college English and had received a
D. Judge McSpadden noted Barnes’s answers and observed that
Barnes appeared to understand everything stated to him. After
the hearing before Judge McSpadden, Barnes was returned to the
city jail, where he was given shoes and socks. During both the
journey to court and the return trip, Barnes was briefly outside
barefoot in rainy and chilly weather.
Beginning at approximately 9:45 am, Calhoun interrogated
Barnes further. Before commencing interrogation, he read Barnes
his Miranda rights. Barnes stated that he had already been given
his rights by Judge McSpadden and that he understood them.
During this interrogation, Barnes again told Calhoun that he had
5 stolen the television and firearms, but continued to deny seeing
anyone in the house. At approximately 11:45 am, Calhoun ceased
the interrogation and left the interview room.
A few minutes later, Sergeant Belk stopped by the interview
room and asked Barnes if he needed anything. Belk then
accompanied Barnes to the restroom. While returning from the
restroom, Barnes indicated that he wanted to talk to Belk. Back
inside the interview room, Barnes brought out a copy of the
written Miranda warnings from Judge McSpadden and read out loud
the charge that was listed there, “burglary of a habitation with
intent to commit murder.” Barnes then told Belk, “I didn’t
intend to commit a murder. It was an accident.”
Barnes explained that he had entered the house through the
kitchen window, intending to take property and money. Greb had
confronted him with mace and a rifle. She sprayed mace at him
and they struggled. Barnes overcame Greb and left her lying on
the floor. Barnes stated that after he had grabbed some cash,
the television, and the firearms, he realized that Greb was not
breathing and he attempted “mouth to mouth resperation.” When
this was unsuccessful, he covered her body and fled the scene.
Belk requested that Barnes repeat the events that took place
so that Belk could type another statement. Belk again repeated
Barnes’s Miranda rights. Barnes again stated that he waived
them. Belk began typing this statement (the “third statement”)
just after noon. When he finished, Barnes made and initialed two
minor changes and then signed the statement. At the pretrial
6 suppression hearing, Barnes testified that his interrogators did
not promise anything in exchange for his statement and did not
force, coerce, or compel Barnes to make the statement. After
Barnes made his third written statement, Calhoun obtained a
warrant for capital murder.
Around 2 pm, Belk asked Barnes whether he would be willing
to repeat his third statement on videotape. Barnes stated that
he would. Barnes, Belk, and the camera operator were present in
the videotape interview room when Barnes gave his videotaped
statement (the “fourth statement”). Belk began by reading Barnes
questions from a video statement checklist form. These questions
included Barnes’s Miranda rights and whether he understood and
waived each right. With one exception that is discussed in-depth
in Section II.B, Barnes stated that he understood and waived each
right. Barnes then gave a statement on videotape that was
consistent with his third written statement.
On June 22, 1988, Barnes was indicted for capital murder.
Barnes’s trial counsel moved that all of Barnes’s statements be
suppressed because they were not voluntary and were obtained in
violation of Barnes’s right to counsel. The trial court
conducted a four-day evidentiary hearing on the motion to
suppress, during which Barnes, Belk, Calhoun, Doyle, and Judge
McSpadden all testified.
Following this four-day hearing, the trial court entered
extensive findings of fact and conclusions of law, holding that
Barnes’s statements were voluntary. The court found that Barnes
7 had the mental capacity and education needed to understand the
warnings and that there was no evidence of police misconduct
during the interrogation. The court found that “all waivers of
constitutional rights involved in each and every statement” were
voluntarily and intelligently made. Thus, the trial court
admitted all the written statements and the fourth, videotaped
statement.
B. Procedural History
A jury convicted Willis Jay Barnes of capital murder on
March 16, 1989. A week later, he was sentenced to death. His
conviction and sentence were upheld on direct appeal by the Texas
Court of Criminal Appeals in September 1993. Barnes v. State,
No. 70,858, slip op. (Tex. Crim. App. Sept. 22, 1993). The same
court denied Barnes’s motion for a rehearing in November of 1993.
In April 1994, the United States Supreme Court denied Barnes’s
petition for a writ of certiorari. Barnes v. Texas, 511 U.S.
1063, 114 S. Ct. 1635, 128 L. Ed. 2d 357 (1994).
In July 1995, Barnes filed an application for a post-
conviction writ of habeas corpus in state court. The district
court conducted a limited evidentiary hearing on Barnes’s
allegation of ineffective assistance of counsel. The court
entered findings of fact and conclusions of law and transmitted
the post-conviction record to the Texas Court of Criminal
Appeals. In February 1996, the Texas Court of Criminal Appeals
entered an order stating that the trial court’s findings of fact
and conclusions of law were “supported by the record and upon
8 such basis the relief sought by the petitioner is denied.” Ex
Parte Barnes, Application No. 30,357-01 (Tex. Crim. App. Feb. 14,
1996).
In April 1997, Barnes timely filed a petition for writ of
habeas corpus in federal district court. Respondent answered and
filed a motion for summary judgment. The district court granted
Respondent’s motion for summary judgment and entered a Final
Judgment denying Barnes’s petition for a writ of habeas corpus
and denying a COA. Barnes v. Johnson, No. H-97-400 (S. D. Tex.
Apr. 30, 1998) (order denying writ of habeas corpus). Barnes now
challenges the district court’s denial of a COA. He requests
that this Court grant a COA and direct the issuance of a writ of
habeas corpus.
C. AEDPA
The standards by which we determine whether to grant a COA
are provided by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), 28 U.S.C.A. §§ 2241-55 (Supp. 1998). Under
the regime set forth by the AEDPA, Barnes is required to obtain a
COA from either the district court or this Court in order to
proceed with an appeal. 28 U.S.C.A. § 2253(c)(1). To obtain a
COA, a petitioner must make a substantial showing of the denial
of a constitutional right. 28 U.S.C.A. § 2253(c)(2).
Barnes claims that the third written statement and the
fourth videotaped statement were not voluntary. He argues that
their admission at his trial violated his constitutional rights
to counsel and to remain silent under the Fifth, Sixth, and
9 Fourteenth Amendments.
The voluntariness of a confession is ultimately a legal
determination. See Miller v. Fenton, 474 U.S. 104, 112, 106 S.
Ct. 445, 450-51, 88 L. Ed. 2d 405 (1986); Muniz v. Johnson, 132
F.3d 214, 219 (5th Cir.), cert. denied, 118 S. Ct. 1793 (1998).
However, the determination may also involve subsidiary factual
determinations and mixed issues of law and fact. Muniz, 132 F.3d
at 219. Under the standards set forth by the AEDPA, for the
issues that are purely legal or mixed law and facts, this Court
must respect a state court’s determination of voluntariness so
long as it was not “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C.A. §
2254(d)(1); Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.
1996), cert. denied, 117 S. Ct. 1114 (1997); see also Mata v.
Johnson, 99 F.3d 1261, 1267 (5th Cir. 1996) (equating this form
of review with the “clearly erroneous” standard). Purely factual
subsidiary determinations are presumed to be correct and are
overturned only if they were “based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C.A. § 2254(d)(2). When
challenging a state court’s factual determinations, a petitioner
must rebut this presumption of correctness by “clear and
convincing evidence.” 28 U.S.C.A. § 2254(e)(1).
II. Applicant’s Claims
Barnes argues that his confession--through his third written
10 statement and fourth videotaped statement--was not voluntary and
that he was coerced into waiving his constitutional rights. He
argues that the trial court thus erred in admitting the third and
fourth statements at his trial. He provides six specific
allegations of police “physical and mental coercion, fraud and
deceit” to support his argument. Barnes alleges that: (1) the
police deliberately and fraudulently misled him as to the charges
that they intended to press; (2) the police did not cease
interrogation after Barnes invoked his right to remain silent;
(3) the police coerced him by interrogating him for ten hours and
holding him in custody for over nineteen hours; (4) the police
left Barnes without footwear for an extended period of time,
during which he was outside at points; (5) the police prevented
Barnes from sleeping for more than two or three hours at a time;
and (6) the police’s treatment of Barnes, when viewed in its
entirety, was fundamentally unfair. We review these arguments to
determine whether the trial court’s decision to admit the third
and fourth statements was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court . . . .” 28 U.S.C.A. §
2254(d)(1).
A. The Intentionally Fraudulent Charge
It is undisputed that for most, if not all, of Barnes’s
interrogation, he was not specifically told that he was a suspect
11 for capital murder.1 In addition, when he was brought before
Judge McSpadden, Barnes was told that he was being charged with
“burglary of a habitation with intent to commit murder,” a charge
that apparently does not technically exist. Barnes alleges that
these two aspects of his interrogation--he was not told that he
was a capital murder suspect and he was brought before Judge
McSpadden on a “made up” charge--render his confession
involuntary. We do not agree.
While Barnes was not directly informed that he was a capital
murder suspect, from the beginning of his interrogation Barnes
was aware that a woman had died in the house he was alleged to
have burglarized. Sergeant Calhoun mentioned Ms. Greb’s murder
shortly after Barnes was arrested. Moreover, Barnes himself
stated that he had seen on the television news that the woman
living in the house he had burglarized had been killed. In
Barnes’s first statement, he mentioned the death and attempted to
divert attention from himself by mentioning someone that he had
seen next door, stating “I think that this man had something to
do with the old womans death.” Thus, it is clear that Barnes
understood from the start that the police were investigating Ms.
Greb’s murder, not just theft of property. He was also well
aware that he was suspected of committing the murder.
A suspect’s waiver of Miranda rights is not invalid merely
1 We assume for our purposes that this was an affirmative police decision made in an attempt to get Barnes to implicate himself in the murder.
12 because police interrogators did not advise him of the subject
matter of the upcoming interrogation. Colorado v. Spring, 479
U.S. 564, 574, 107 S. Ct. 851, 857, 93 L. Ed. 2d 954 (1987).
Similarly, the waiver is not invalid simply because the suspect
did not have “a full and complete appreciation of all the
consequences flowing from the nature and quality of the evidence
in the case.” Oregon v. Elstad, 470 U.S. 298, 317, 105 S. Ct.
1285, 1297, 84 L. Ed. 2d 222 (1985). In light of Barnes’s clear
understanding that the police were investigating a murder, the
police’s decision not to inform Barnes specifically that he was a
capital murder suspect does not render his third and fourth
statements involuntary.
Barnes’s further argument that he was coerced and deceived
by the abnormal charge of “burglary of a habitation with the
intent to commit murder” is equally without merit. Section 30.02
of the Texas Penal Code defines burglary of a habitation as
follows: “(A) A person commits an offense if, without the
effective consent of the owner, he: (1) enters a habitation . . .
with intent to commit a felony or theft.” Tex. Penal Code Ann. §
30.02(a)(1) (Vernon 1997). Thus, in identifying Barnes’s charge,
the police added a superfluous phrase--”with the intent to commit
murder”--to the crime of burglary of a habitation. All this
phrase served to do, however, was to identify the particular
felony that the police intended to use for the requisite “commit
a felony or theft” element. The addition of this phrase cannot
be said to have worked a deception upon Barnes. Indeed, the
13 inclusion of this phrase goes directly against Barnes’s claim
that he was deceived and coerced into confessing the murder
because he was not informed that he was a capital murder suspect.
Finally, Barnes alleges that he was deceived and coerced by
not being informed that he could receive the death penalty for
the Greb’s murder. There is no Supreme Court law requiring that
a suspect be informed that he is suspected of an offense that
could result in the death penalty. Indeed, the Supreme Court’s
decisions in Colorado v. Spring, 479 U.S. at 574, 107 S. Ct. at
857, and Oregon v. Elstad, 470 U.S. at 317, 105 S. Ct. at 1297,
indicate just the opposite--a suspect need not be told that a
statement or confession may expose him to the death penalty.
In sum, Barnes’s claims of deceit and an “intentionally
fraudulent charge” provide no support to his claim that the state
court’s determination of voluntariness was either contrary to, or
an unreasonable application of, clearly established federal law,
or, alternatively, an unreasonable determination of the facts.
B. The Fourth Amendment and Assertion of Rights
Barnes argues that prior to the videotaping of his fourth
statement, he invoked his right to remain silent. Therefore, any
statements made after this point could not have been admitted at
trial without violating his constitutional rights. The
transcript of Sergeant Belk’s exchange with Barnes, however,
makes it clear that at no point did Barnes unambiguously invoke
his right to remain silent. Therefore, Belk did not violate
Barnes’s Fifth Amendment rights by continuing the videotaped
14 statement and the trial court did not err in admitting it.
The alleged invocation was recorded on videotape. The
transcript of that incident is as follows:
Q: I’m Sergeant J.W. Belk. A: I’m Willis Jay Barnes. Q: Okay, Willis. That’s B-A-R-N-E-S. A: B-A-R-N-E-S. Q: Okay. I’m going to read you your warnings, and if at any point you don’t understand, stop me and we will go through it. A: Okay. Q: You have the right to remain silent and not make any statement at all and that statement you make may be used against you and probably will be used against you at trial. Do you understand that right? A: I understand it. Q: Do you waive this right? A: No. Q: Okay, do you understand what “waive” means? A: It mean, uh, do I waive rights for you to do it, right? Q: Well, it’s explained . . . . you have the right to remain silent . . . . A: Right. Q: And you can remain silent and not say anything at all, or you can waive that right . . . . A: Right, that’s what I’m saying. I waive what I’m saying, it’s okay, what I’m saying is I’m giving you the right to put me that . . . to ask me these questions. All right? Q: Okay, and so you’re waiving your right to remain silent and you are talking. A: I am talking. Q: Okay, so you understand that right . . . A: I understand that right. Q: And you are waiving that right? A: Right. Q: Okay.
After this exchange, Belk continued videotaping and Barnes gave
his fourth statement, which was consistent with his third written
The question raised by this dialogue is whether Belk should
have immediately ceased interrogation after Barnes replied “No.”
15 Barnes argues that by continuing beyond this apparent invocation,
Belk denied Barnes his Fifth Amendment right to remain silent.
The Supreme Court has held that if a suspect “indicates in
any manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease.” Miranda
v. Arizona, 384 U.S. 436, 474-75, 86 S. Ct. 1602, 1627, 16 L. Ed.
2d 694 (1966). In this case, it was not clear that the suspect
wished to remain silent. Indeed, considering Barnes’s previous
statements and the fact that Barnes himself had initiated this
particular discussion, Belk had every reason to believe that
Barnes wished to talk.
The Supreme Court’s most recent exposition on ambiguous
invocations was in the context of whether a suspect invoked his
Sixth Amendment right to counsel. In Davis v. United States, 512
U.S. 452, 459, 114 S. Ct. 2350, 2355, 129 L. Ed. 2d 362 (1994),
the Court held that the determination of whether a suspect
invoked his right to counsel is an objective one. The question
is whether the suspect “articulate[d] his desire to have counsel
present sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be a request
for an attorney.” Id. Other circuits have held that this
“objective inquiry” into ambiguity is applicable to invocations
of the right to remain silent.2
2 See e.g. Medina v. Singletary, 59 F.3d 1095, 1100 (11th Cir. 1995), cert. denied, 116 S. Ct. 2505 (1996) (applying Davis’s objective inquiry to determine whether suspect’s invocation of the right to remain silent was ambiguous or equivocal); United States
16 This circuit has not yet determined whether the Davis
analysis is applicable to invocations of the right to remain
silent. However, because Section 2254 is specifically focused on
federal law as determined by the Supreme Court, we need not
decide that issue here. 28 U.S.C.A. § 2254(d)(1). We only need
to decide whether the state court’s decision to admit the fourth
statement was contrary to clear Supreme Court law. In light of
the language and logic of the Supreme Court’s decision in Davis,
we cannot say that it was.
The majority opinion in Davis held that when faced with an
ambiguous invocation of a right, an interrogator was not required
to ask clarifying questions. Davis, 512 U.S. at 461, 114 S. Ct.
at 2356. Nevertheless, the Court noted that it will “often be
good police practice for the interviewing officers” to ask
clarifying questions. Id. Thus, in the present case, Belk went
beyond what the Supreme Court required and followed what the
Court described as “good police practice.” He was presented with
an ambiguous and surprising apparent invocation. He asked a few
v. Banks, 78 F.3d 1190, 1197 (7th Cir.) (same), vacated on other grounds, 117 S. Ct. 478 (1996); c.f. United States v. Ramirez, 79 F.3d 298, 305 (2d Cir.), cert. denied, 117 S. Ct. 140 (1996) (assuming, arguendo, that Davis applies to invocations of the right to remain silent, but not holding that it definitely does); see also United States v. Johnson, 56 F.3d 947, 955 (8th Cir. 1995) (citing Davis while determining whether right to remain silent had been invoked). The Texas Court of Criminal Appeals has also applied the Davis analysis to invocations of the right to remain silent. Dowthitt v. Texas, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996) (citing Davis and holding that statement, “I can’t say more than that. I need to rest.” was not an unambiguous invocation of the right to remain silent).
17 explanatory, noncoercive questions that revealed that Barnes did
not wish to invoke his right to remain silent.
In light of Davis and this clear record--in which an
ambiguous statement was made and noncoercive clarifying questions
revealed no intent to invoke the right to remain silent--the
trial court’s admission of the fourth, videotaped statement is
not contrary to “clearly established Federal law, as determined
by the Supreme Court . . . .” 28 U.S.C.A. § 2254(d)(1).3
C. Barnes’s Other Arguments
Barnes’s additional arguments are heavily factual in nature.
Barnes argues that his statements were not voluntary because he
was coerced by the police. He points to the length of his
interrogation, his lack of footwear, and the fact that he was
prevented from sleeping for more than three hours at a time.
The state court made factual determinations that these
police actions were not coercive and therefore did not render the
statements involuntary. These state court factual determinations
are entitled to a presumption of correctness. 28 U.S.C.A. §
3 Furthermore, as noted by the district court, even had there been error in admitting the fourth, videotaped statement, such error would probably have been harmless. See Arizona v. Fulminante, 499 U.S. 279, 310-11, 111 S. Ct. 1246, 1265-66, 113 L. Ed. 2d 302 (1991) (holding that the admission of an involuntary confession is subject to harmless error analysis). The fourth, videotaped statement is cumulative of the third statement. Therefore, had it been error to admit the fourth statement--which it was not--such error would probably have been harmless under the particular circumstances of this case. See United States v. Ramirez, 963 F.2d 693, 698 (5th Cir.), cert. denied, 113 S. Ct. 388 (1992); Boles v. Foltz, 816 F.2d 1132, 1135-36 (6th Cir.), cert. denied, 108 S. Ct. 167 (1987).
18 2254(d)-(e). As the district court noted in its meticulous
analysis of the state court proceedings, the state court record
does not support Barnes’s claims that these police actions
rendered his statements involuntary.
D. Totality of the Circumstances and Fundamental Unfairness
In light of our rulings on the previous issues, it is clear
that under the totality of the circumstances, the admission of
Barnes’s third and fourth statements was not fundamentally unfair
and did not violate Barnes’s constitutional rights.
III. Conclusion
Because Willis Jay Barnes has failed to make a substantial
showing of the denial of a constitutional right, his application
for a COA is DENIED.