Monroe v . NHSP CV-02-069-B 11/22/02

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael Monroe

v. Civil N o . 02-069-B Opinion N o .

Jane Coplan, Warden for New Hampshire State Prison for Men

MEMORANDUM AND ORDER

Michael Monroe was convicted of second degree murder and

sentenced to 40 years to life in the New Hampshire State Prison

(“NHSP”). On February 6, 2002 , he filed a petition for a writ

of habeas corpus in this Court, arguing that the state trial

court violated his rights under the Fifth and Fourteenth

Amendments by admitting into evidence a coerced and involuntary

confession that he made to police without adequate Miranda

warnings. Monroe now moves for summary judgment in his favor and

issuance of the writ of habeas corpus (Doc. N o . 1 0 ) . Jane

Coplan, Warden of NHSP, also moves for summary judgment (Doc. N o .

8 ) , arguing that Monroe’s petition is without merit. For the

reasons discussed below, I grant the Warden’s motion. I. BACKGROUND1

On the evening of March 6, 1993, Monroe’s mother-in-law,

Theresa Levesque, was murdered in her home in Nashua, New

Hampshire. Because there was no sign of forced entry to the

home, nor any physical disturbance beyond the murder scene

itself, the police investigation immediately focused on

Levesque’s family and friends. Although there was no physical

evidence linking Monroe to the crime, the police gradually began

to suspect him due to inaccuracies in his explanation of where he

was the night of the murder, as well as the fact that he was

experiencing financial difficulties and would benefit from

Levesque’s death.

To assist in their investigation, the police arranged for an

undercover officer to pose as a fictitious witness. The officer,

who identified himself only as “Nick,” called Monroe on two

separate occasions in March 1993, informing Monroe that both Nick

and his girlfriend had seen him leaving Levesque’s house on the

night of the murder and would tell the police unless he paid him

1 The facts of the case are largely based upon the findings of the state court as summarized in State v . Monroe,

(1998). Certain details have been filled in by consulting the motions of the two parties.

-2- $2,000. Monroe immediately reported these calls to the police,

but informed them only of the attempted extortion, not of Nick’s

claims that he had seen him at the murder scene. When questioned

further by the police, Monroe denied that the calls had anything

to do with Levesque’s murder.

On the evening of April 9, 1993, Nick came to the restaurant

and approached Monroe in the alley. He again insisted that he

had seen Monroe at Levesque’s house and demanded $2,000 in

exchange for his silence, but Monroe refused to pay. Nick tried

to get Monroe to call the police with him at that time, but

Monroe refused. Nick eventually left, saying that he would call

again. Monroe reported this encounter to the police as well, but

again told them that Nick did not explain why he was demanding

the money.

Throughout March and April of 1993, Monroe was interviewed

on numerous occasions by the police, including one session on

March 2 2 , when he took and failed a polygraph test. In January

1994, Monroe and his wife moved to North Carolina. In April

1994, detectives with the Nashua police arrived unannounced at

Monroe’s new place of employment and informed him that Nick had

told the police about both Monroe’s involvement in the murder and

-3- Nick’s attempts to extort money. Monroe continued to deny that

he had had any involvement in Levesque’s murder or that he had

discussed it with Nick. The police then went to see Rose at home

and gave her similar information concerning Nick. After

encouragement from the police, Rose questioned Monroe about the

discrepancies between his story and Nick’s. Monroe, however,

still insisted that he did not know what Nick had told the

police.

After encouragement from Rose, Monroe agreed to another

interview with the Nashua police, which took place at the Monroe

residence on August 2 8 , 1994, with Rose present. After three

hours of questioning by the police, Monroe agreed to take a

polygraph test. The next afternoon, at about 4:30 p.m., Monroe

and Rose went to the North Carolina State Bureau of

Investigation. Monroe was given a Miranda waiver form to read

and Agent Johnson, a North Carolina state investigator, reviewed

each paragraph of the waiver with Monroe. Monroe then signed the

waiver and took a polygraph test administered by Agent Johnson.

Agent Johnson concluded that Monroe was lying when he denied

stabbing Levesque and he continued to question Monroe for an hour

and a half following the polygraph test.

-4- When Monroe continued to deny involvement in the murder,

Rose was allowed to enter the room and speak with him. Rose sat

with Monroe, holding his hands and encouraging him to confess

while Agent Johnson continued to interrogate him. Monroe began

to get emotional and said that he could not remember being

involved in the murder.

An hour after Rose came into the room, Detective Seusing of

the Nashua police replaced Agent Johnson. The interrogation

continued until 10:30 p.m., when Monroe finally admitted to

stabbing and murdering Levesque. The police took a break, and

provided Monroe and Rose with soft drinks, and Detective Seusing

then continued the questioning. At this time, Monroe described

the events of the murder, including an argument he had had with

Levesque prior to the stabbing.

At around midnight, Monroe admitted in a tape-recorded

statement that he had voluntarily taken the polygraph test and

that he had confessed to the murder. The police arrested him for

Levesque’s murder approximately one hour later. Monroe was

transported to New Hampshire on August 3 1 , 1994, and waived his

Miranda rights again during the transfer. Upon his arrival in

Nashua, he repeated his confession to the Nashua police and

-5- reenacted the events of the murder for them.

Monroe later moved to suppress his confessions and the other

statements he had made to the police on the grounds that he had

made them involuntarily and without sufficient Miranda warnings.

The New Hampshire Superior Court (Hampsey, J.) denied this

motion, holding that all of Monroe’s statements were voluntary,

and that in each interrogation session he either had waived his

Miranda rights or was not “in custody” for Miranda purposes. See

Pl.’s Pet. for a Writ of Habeas Corpus (Doc. N o . 1 ) , Ex. H ,

Order dated Oct. 2 , 1995 on Def.’s Mot. to Dismiss and to

Suppress (“Suppression Order”).

On November 2 0 , 1995, a jury convicted Monroe of second

degree murder. On appeal, the New Hampshire Supreme Court upheld

the conviction. Monroe,

. Deciding Monroe’s

claims under the New Hampshire State Constitution, the New

Hampshire Supreme Court concluded that the trial court did not

err in finding that Monroe’s confessions were voluntary and that

his Miranda rights were not violated.

. Following

this ruling, Monroe unsuccessfully moved for a new trial, State

v . Monroe,

(2001), and filed the habeas corpus

petition which is the subject of the instant cross-motions for

-6- summary judgment.

II. STANDARD OF REVIEW

Summary judgment may be granted on a petition for a writ of

habeas corpus when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c)(2002). A genuine

issue is one that “may reasonably be resolved in favor of either

party” and therefore “properly can be resolved only by a finder

of fact.” Anderson v . Liberty Lobby, Inc.,

4 2 , 250

(1986). Material facts are those which “might affect the outcome

of the suit.” Id. at 248. Where the parties have submitted

cross-motions for summary judgment, “the court must consider each

motion separately, drawing inferences against each movant in

turn.” Reich v . John Alden Life Ins. Co.,

, 6 (1st

Cir. 1997).

A writ of habeas corpus must be denied unless the state

court’s decision “was contrary t o , or involved an unreasonable

application o f , clearly established Federal law, as determined by

-7- the Supreme Court of the United States.”

(d)(2002).2 “[C]learly established Federal law...refers to

the holdings, as opposed to the dicta, of [the Supreme] Court’s

decisions as of the time of the relevant state-court decision.”

Williams v . Taylor,

6 2 , 412 (2000).

I first determine “whether the Supreme Court has prescribed

a rule that governs the petitioner’s claim” and, if s o , whether

the state court acted contrary to this legal rule. O’Brien v .

Dubois,

6 , 24 (1st Cir. 1998), overruled on other

grounds by McCambridge,

at * 1 3 . The “contrary

to” prong is met if (1) “the state court arrives at a conclusion

opposite to that reached by [the Supreme] Court on a question of

law,” or (2) “the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and

arrives at a result opposite to [the Court’s].” Taylor,

The threshold question for a habeas petition is whether the petitioner’s federal claims were adjudicated on the merits by the state court. See

(d). I note that Monroe’s claims were adjudicated on the merits since the New Hampshire Supreme Court analyzed them under the New Hampshire State Constitution, which offers equal or greater protection than the Federal Constitution against both involuntary confessions and Miranda violations. Monroe,

6 4 , 868 (citing State v . Aubuchont,

(1996)); see McCambridge v . Hall, N o . 00-1621,

(1st Cir. Aug. 2 7 , 2002).

-8- at 405. In effect the petitioner must “show that Supreme Court

precedent requires an outcome contrary to that reached by the

relevant state court.” Williams v . Matesanz,

2 1 , 425

(1st Cir. 2000), overruled on other grounds by McCambridge,

at * 1 3 , (quoting O’Brien,

).

Even if the state court decision was not contrary to Supreme

Court precedent, I may grant a writ of habeas corpus under the

“unreasonable application” clause if “the state court identifies

the correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts of

the [petitioner’s] case.” Taylor, 529 U.S. at 413. “[A]n

unreasonable application of federal law is different from an

incorrect application of federal law.” Id. at 410. There must

be “some increment of incorrectness beyond error” which is

sufficient for the federal court to find unreasonable in its

“independent and objective judgment.” McCambridge,

at * 1 3 , (overruling Matesanz and O’Brien to the extent

that they adopted a stricter reading of the “unreasonable

application” clause).

In a habeas proceeding, all factual determinations made by

the state court shall be presumed to be correct, unless the

-9- petitioner demonstrates through “clear and convincing evidence”

that this presumption is erroneous.

(e)(1). I

apply the above standard of review in my analysis.

III. DISCUSSION

Monroe argues that the state court’s decision to allow his

confessions into evidence was “contrary to” and “an unreasonable

application of clearly established federal law,” because (1) the

confessions were involuntary and coerced, and (2) Monroe was not

given adequate Miranda warnings. I reject both arguments.

A. Voluntariness of Confessions

Monroe argues that his confessions were involuntary because

of the intimidation by the undercover officer, his wife’s

collaboration with the police, and the coercive nature of the

interrogations themselves. I first examine whether the state

court’s rejection of this argument was “contrary to” Supreme

Court precedent and then analyze whether it was an “unreasonable

application” of such precedent.

The Supreme Court has held that “coercive police activity is

a necessary predicate to the finding that a confession is not

‘voluntary’ within the meaning of the Due Process Clause of the

-10- Fourteenth Amendment.” Colorado v . Connelly,

5 7 , 167

(1986). The key question in the coercion inquiry is “‘whether a

defendant’s will was overborne’ by the circumstances surrounding

the giving of a confession.” Dickerson v . United States,

2 8 , 434 (2000)(quoting Schneckloth v . Bustamonte,

(1973)). To determine whether a defendant’s will was

overborne, I must consider “the totality of all the surrounding

circumstances - both the characteristics of the accused and the

details of the interrogation.”

(quoting Schneckloth,

2 6 ) .

The state court’s decision that Monroe’s confessions were

made voluntarily was not “contrary to” Supreme Court precedent.

The state court applied governing law by looking at the “totality

of the circumstances,” from which it determined that Monroe’s

will had not been overborne by the interrogation techniques at

issue. Monroe,

. Furthermore, although Monroe

notes that “precise identicality of facts and legal issues is not

required” by the First Circuit, Vieux v . Pepe,

9 , 63

(1st Cir. 1999), he cites to no case with “materially

indistinguishable” facts in which the Supreme Court found a

confession to be involuntary. Taylor, 529 U.S. at 405.

-11- Therefore, I now turn to whether the state court’s finding was an

“unreasonable application” of the established Supreme Court

precedent. I first examine Monroe’s specific claims regarding

the use of Nick and Rose. Next, I analyze the “totality of the

circumstances” surrounding his confession.

1. Police Deception Relating to “Nick”

Monroe’s first argument is that the use of Nick as a

fictitious witness to the murder violated his due process rights

because the deception was of an unacceptable nature and duration

and also because Nick posed a credible threat to Monroe and his

family.

Misrepresentation to a defendant of the strength of the

government’s case is not per se coercive, although it is a factor

to be considered in the “totality of the circumstances”

surrounding a confession. See Frazier v . Cupp,

3 1 , 739

(1969)(rejecting the habeas petition of a defendant who confessed

after being falsely informed that his co-defendant had

confessed). Although the First Circuit has not specifically

addressed the type of deception conducted in the present case, it

has noted that “[police] trickery is not automatically coercion”

and that it is common for police to falsely tell suspects that

-12- they have physical evidence against them. United States v .

Byram,

(1st Cir. 1998)(upholding confession

where police falsely told defendant that he was not a suspect).

Consistent with this holding, other circuits have upheld

confessions in cases where the police lied to suspects about the

existence of eyewitness evidence. See Holland v . McGinnis,

(7th Cir. 1992)(police falsely stated that witness saw

defendant’s car in alley where crime occurred); Ledbetter v .

Edwards,

(6th Cir. 1994)(police presented defendant

with fabricated fingerprint evidence implicating him in the crime

and falsely told him that the victim and two other witnesses had

identified h i m ) .

Although threats by an undercover officer have been found to

be sufficiently coercive to require suppression of a resulting

confession, see Arizona v . Fulminante,

(1991),

Lam v . Kelchner, N o . 00-3803, 00-4122,

(3rd Cir. Sept. 1 0 , 2002), in such cases the confession was a

direct result of the threatening behavior and was made to the

officer immediately following the threat. In contrast, Monroe

confessed not to Nick, nor immediately following a confrontation

with Nick, but rather in North Carolina several months after he

-13- believed Nick to be in police custody in New Hampshire. Monroe,

.

Consequently, the New Hampshire Supreme Court found that

even if Nick’s behavior was threatening to Monroe, that threat

“did not play any meaningful part in his decision to confess.”

. Although the police confronted Monroe in North

Carolina with the “evidence” obtained from Nick, he posed no

apparent threat to Monroe at that time. Indeed, the New

Hampshire Supreme Court further noted that the investigators did

not even mention Nick during the August 2 9 , 1994 interrogation

session.

In sum, while the deception was fairly long in

duration, it was not unreasonable for the court to conclude that

the causal connection between Nick’s actions and Monroe’s

confession was too attenuated to amount to coercion. Cf.

Frazier, 394 U.S. at 737-738; Fulminante,

.

2. Rose’s Role in Interrogation

Monroe’s second argument is that the use of his wife Rose

during the interrogation process was coercive, comparing it to

the ruses criticized in Spano v . New York,

(1959)

and Leyra v . Denno,

(1954).

-14- Both Spano and Leyra involved a concerted effort by police

to trick the defendant into trusting someone who was actually

working against him. See Spano,

; Leyra,

. In Spano, one of the defendant’s close friends

assisted police in the final stages of interrogation by falsely

telling the defendant that an earlier confession made to the

friend would get the friend and his family in trouble. Spano,

. In Leyra, the police brought a

psychiatrist/hypnotist into the interrogation room, had him pose

as a doctor who could treat the defendant’s sinus pain, and

listened as he used “subtle and suggestive questions” to coax a

confession out of the defendant. Leyra,

-560.

In contrast to Spano and Leyra, the police never asked Rose

to deceive Monroe, nor did she attempt to do s o . Other circuits

have upheld confessions where a relative participated in the

questioning process but there was no deceit or improper

threatening of the defendant. See United States v . McShane,

(9th Cir. 1972)(defendant confessed after police brought

his girlfriend to police station for questioning and to talk to

defendant); United States ex rel. Church v . DeRobertis,

(7th Cir. 1985)(police put defendant’s older brother in cell

-15- with him, knowing that he would try to convince defendant to

confess and exculpate their younger brother). I find the

reasoning of these decisions persuasive.3

3. “Totality of the Circumstances”

Monroe’s final argument is that the “sheer length and number

of interrogation sessions” and the “various coercive techniques

employed” during them made his confession involuntary. To

support this claim he points to thirteen different instances of

interrogation. However, the New Hampshire Supreme Court found

that the four month gap between the initial ten interrogation

sessions and Monroe’s confession in North Carolina was sufficient

to make the earlier sessions irrelevant. Monroe,

. I agree with this conclusion.

3 As additional support for his argument that his confession was involuntary, Monroe claims that the police violated his Fourteenth Amendment right to intimate association as articulated in Roberts v . United States Jaycees,

(1984) and Patel v . Searles, N o . 00-9552,

(2nd Cir. Sept. 3 0 , 2002). Without deciding whether this right was in fact violated, I find no precedent for Monroe’s assertion that such an infringement would render his confession involuntary. The right to intimate association developed in Roberts and Patel is generally brought as a claim under

(2002). Monroe has cited no cases, nor have I found any, which indicate that it should be a factor in evaluating the voluntariness of his confession.

-16- Therefore, my inquiry focuses on the final three

interrogation sessions, which occurred on August 2 8 , 2 9 , and 3 1 ,

of 1994. The August 28th session began at Monroe’s home in North

Carolina at approximately 9:00 a.m. and lasted a little over

three hours. Monroe was not read his Miranda rights at this

time, but there was also no evidence that he was in custody.

Indeed, the police admitted that they would have had to leave the

house if Monroe had refused to talk with them. See T r . from

Suppression Hr’g, Vol. I I I , at 514. The New Hampshire Supreme

Court also noted that this interview “maintained a conversational

tone.” Monroe,

. The August 29th interview at

the North Carolina State Bureau of Investigation began at

approximately 4:30 p.m, at which point Monroe was given Miranda

warnings.

. He was interrogated by only one

investigator at a time, with Rose assisting in the questioning at

times, and he began to confess by 10:30 p.m.

.

In cases where the Supreme Court has found confessions to be

coerced it has usually relied heavily upon factors which were not

present in Monroe’s case, i.e., a defendant’s inability to

understand the process, isolation from those who would provide

support, and interrogation for long periods of time without

-17- respite. See Mincey v . Arizona,

(1978)(police

interrogated defendant while he was in the hospital, seriously

injured and in great pain); Blackburn v . Alabama,

(1960)(insane defendant interrogated for eight to nine hours in

small room filled with police with no break and no contact with

his family or his attorney); Spano,

(emotionally

unstable defendant questioned for nearly eight straight hours by

numerous officers, requests to contact attorney denied, and

confession obtained at 3:30 a.m. after a friend extracted

sympathy from defendant by lying); Watts v . Indiana,

(1949)(defendant held for six days and interrogated from evening

to early morning by relays of officers and not taken before

magistrate nor advised of his constitutional rights); Ashcraft v .

Tennessee,

(1944)(defendant interrogated for 36

straight hours without sleep or rest and not permitted to contact

anyone).

Likewise, the evidence in Monroe’s case does not meet the

standard set by the First Circuit, which has upheld confessions

in cases involving stronger police tactics. See Johnson v . Hall,

(1st Cir. 1979)(lengthy interrogation process with

numerous police officers and incriminating line-ups); see also

-18- United States v . Kiendra,

(1st Cir. 1981)(defendant

on month-long hunger strike in solitary confinement). Although

Monroe challenges techniques used in the interrogation such as

“raised voices,” “feigned sympathy” and the role played by Rose,

he fails to demonstrate that the “totality of the circumstances”

rose to the level of impermissible coercion. Monroe was capable

of understanding both the interrogation process and the Miranda

warnings, and, in fact, was familiar with them as a result of the

earlier interrogation sessions. He was not denied contact with

his wife or others, was given sufficient breaks to eat and drink,

and the state court found that the questioning was “not

particularly intimidating.” Monroe,

.

Given the relevant Supreme Court and First Circuit

precedent, the New Hampshire Supreme Court was not unreasonable

in concluding that the circumstances surrounding the

interrogation, including the roles played by Nick and Rose, did

not render Monroe’s confession involuntary.

B. Miranda Warnings

Monroe argues that his confession was made without an

adequate waiver of his Miranda rights, since he did not receive a

separate set of warnings prior to the post-polygraph

-19- interrogation.4 The Supreme Court has held that “the prosecution

may not use statements...stemming from custodial interrogation of

the defendant” unless it shows that the defendant was advised of

his or her constitutional rights and “voluntarily, knowingly and

intelligently” waived them. Miranda v . Arizona,

(1966).

In answering the threshold question of whether a defendant

was in custody for purposes of Miranda, the First Circuit

examines “whether there was a manifestation of a significant

deprivation of or restraint on the suspect’s freedom of

movement.” United States v . Lanni,

4 0 , 442 (1st Cir.

1991). The state trial court found that Monroe was not in

custody until after Detective Seusing took over the

4 Monroe also argues that the Miranda warnings which he did receive were undermined by language in the written waiver stating that if he exercised his right to remain silent, the police could “conclude that [he had] refused to cooperate...and failed to demonstrate [his] truthfulness.” Pl.’s Pet. for Writ of Habeas Corpus (Doc. N o . 1 ) , Ex. G, Polygraph Advice of Rights dated Aug. 2 9 , 1994 (“Polygraph Waiver”). However, the waiver also clearly outlined Monroe’s Miranda rights and his right to stop the polygraph or interrogation at any time and Agent Johnson carefully reviewed each paragraph of the waiver with Monroe. Monroe,

. Accordingly, I agree with the New Hampshire Supreme Court’s conclusion that Monroe was “adequately warned” of his Miranda rights at the time that he signed the waiver.

.

-20- interrogation. Suppression Order at 2 6 . Monroe does not

challenge this finding. Thus, for purposes of analysis, I assume

that this finding was correct. Therefore, the question before me

is whether the Miranda warnings given to Monroe prior to the

polygraph test were adequate to cover the post-polygraph

interrogation.

The Supreme Court has refused to adopt a per se rule that

police must re-advise a defendant of his or her Miranda rights

prior to any post-polygraph interrogation, noting instead that

the “totality of the circumstances” must be considered. See

Wyrick v . Fields,

2 , 47-49 (1982). In Wyrick the Court

found that a valid waiver of the defendant’s Miranda rights would

extend to post-polygraph interrogation unless there was such a

“significant change in the character of the interrogation” that

the defendant’s waiver was no longer voluntary, knowing and

intelligent.

at 4 7 .

In determining whether a pre-polygraph waiver is valid for

post-polygraph interrogation, the Supreme Court considers whether

the defendant should have anticipated the post-polygraph

questioning when he or she agreed to the polygraph. See

The

First Circuit weighs this factor along with others such as “[1]

-21- who requested the polygraph examination; [2] who initiated the

post-polygraph questioning; [3] whether the signed waiver clearly

specifies that it applies to post-polygraph questioning or only

to the polygraph test; and [4] whether the defendant has

consulted with counsel.” United States v . Leon-Delfis,

(1st Cir. 2000) (waiver of Sixth Amendment right to

counsel).

The New Hampshire Supreme Court in this case considered the

“totality of the circumstances” and held that the Miranda waiver

signed by Monroe before the polygraph test was sufficient to

waive his rights during the post-polygraph interrogation.

Monroe,

. It found that Monroe “should have

anticipated that he would receive post-examination

interrogation,” citing to Wyrick and referencing both Monroe’s

prior experience with post-polygraph questioning and his

familiarity with Detective Seusing.

. This holding

was not “contrary to” or an “unreasonable application” of Supreme

Court precedent. Crucial to my determination is the fact that

the waiver which Monroe signed prior to taking the polygraph test

expressly contemplated the possibility of polygraph questioning,

stating: “I agree to answer truthfully all questions asked (a)

-22- during the interviews conducted before and after the time I am

attached to the polygraph and (b) during the time I am attached

to the polygraph.” Polygraph Waiver (emphasis added). 5 This

language satisfies the First Circuit’s requirement that a

defendant knowingly and intelligently waive his or her Miranda

rights specifically for post-polygraph questioning. See Leon-

Delfis,

(finding that waivers which applied to

pre-test and test questioning did not extend to post-test

questioning since “waivers of rights are specific”). Monroe

should have fully anticipated the scope of the interrogation on

August 2 9 , 1994, given the wording of this waiver and his prior

experience with post-polygraph questioning by Detective Seusing

on March 2 2 , 1993.

5 Monroe claims that he should have received fresh Miranda warnings when Detective Seusing took over the interrogation because the written waiver only covered questioning by the North Carolina Bureau of Investigation, not the Nashua Police. However, the New Hampshire Supreme Court found that Monroe waived this argument by failing to preserve it in his notice of appeal. Monroe,

(citing N.H. Sup. C t . R. 16(3)(b)(2002)). Since Monroe has procedurally defaulted on this argument I may only review it if he demonstrates “cause” for the default and “prejudice” resulting therefrom or shows that a “fundamental miscarriage of justice” will result from my failure to address his claim. See Edwards v . Carpenter,

(2000). He has failed to demonstrate this in his motion, therefore I do not consider his argument in my analysis.

-23- Monroe argues that the replacement of Agent Johnson with

Detective Seusing and Rose constituted a “significant change in

the character of the interrogation,” thereby demanding repetition

of his Miranda warnings. See Wyrick,

7 . The First

Circuit has not decided whether a change in interrogators

necessarily requires a fresh Miranda waiver. Other circuits find

it to be relevant but not dispositive and also weigh factors such

as the defendant’s prior experience with interrogation,

continuity of the subject matter discussed and the time lapse

between the waiver and the confession. See Jarrell v . Balkcom,

(11th Cir. 1984); United States v . Hopkins,

(5th Cir. 1970). See also United States v .

Gillyard,

(9th Cir. 1984)(relying also on

lack of clear indication in defendant’s Miranda warnings that he

would be subjected to post-polygraph interrogation). Monroe’s

waiver specifically included post-polygraph interrogation, he had

experienced a similar waiver and interrogation with Detective

Seusing in the past, and Detective Seusing’s questions concerned

the same material as Agent Johnson. Accordingly, the replacement

of Agent Johnson with Detective Seusing did not require the

issuance of fresh Miranda warnings.

-24- Three of the factors applied by the First Circuit in Leon-

Delfis do weigh in Monroe’s favor: i.e., Monroe took the

polygraph test at the request of his wife and the police, he did

not initiate the post-polygraph questioning, and he did not

consult with counsel at the time of the interrogation. However,

the pre-polygraph waiver clearly informed Monroe that he had the

right to request counsel and to stop the polygraph or interviews

at any time, yet he did neither. Monroe,

.

Viewed in light of the “totality of the circumstances,” it was

not unreasonable for the New Hampshire Supreme Court to conclude

that the waiver signed by Monroe prior to the polygraph provided

adequate protection for him during the post-polygraph interview.

IV. CONCLUSION

Given the limited standard of review which I must apply

under § 2254(d)(1), I find that the state court’s decision was

not “contrary to” or an “unreasonable application” of Supreme

Court precedent. Accordingly, I grant the Warden’s motion for

summary judgment (Doc. N o . 8 ) and deny Monroe’s motion for

summary judgment (Doc. N o . 1 0 ) .

-25- SO ORDERED.

Paul Barbadoro Chief Judge

November 2 2 , 2002

cc: Philip T . McLaughlin, Esq. Nicholas Court, Esq. Andrew R. Schulman, Esq.

-26-