Monday, April 20, 2015

Tenth Reverses Grant of Habeas Relief to Arabic Speaker

Al-Yousif v. Trani, 2015 WL 968432 (3/6/15) (Col.) (Published) - The 10th reverses a habeas grant based on the petitioner's inability to understand his Miranda rights. Mr. Al-Yousif is from Saudi Arabia and his primary language is Arabic. An expert testified that Mr. Al-Yousif had limited English proficiency and had not understood his rights. Others testified he would nod and say he understood when he didn't. He read at a fifth-grade level of English, while Miranda rights require a 7th-grade level for a native speaker to understand. Before the interrogation, an officer briskly went through the rights, while holding the rights form in a way that Mr. Al-Yousif could not read along, and Mr. Al-Yousif nodded and indicated he understood. After the officer told him he could not have his uncle present, he provided some inculpatory statements. He later lead them to a dumpster containing the body of the murder victim. After another Miranda advisement, Mr. Al-Yousif asked for an attorney. The Colorado trial court suppressed the statements. But the state supreme court reversed, holding that the trial court required a deeper understanding of the implications of a waiver than Colorado law did. A suspect need only understand that: (1) he did not have to talk; (2) he could have an attorney present; and (3) if he did talk, the statements could be used against him. Whether he understood the tactical significance of the waiver was irrelevant. After reviewing the video of the interrogation, the state's highest court concluded the waiver was knowing and voluntary, The 10th presumed that finding to be correct and found Mr. Al-Yousif had not presented clear and convincing evidence to overturn it. The 10th found the state court had considered the totality of the circumstances. The 10th says: "two trial judges agreed with the petitioner, but the highest state court did not." So tough luck.

The 10th didn't have to get into the merits because it also held the petition was untimely. Equitable tolling was inappropriate, the 10th rules. Mr. Al-Yousif's habeas attorney had determined the supreme court rehearing denial on direct appeal was entered three days after it was actually entered. The attorney based that determination on the date on the document the state gave to the attorney. That document reflected when the state trial court received notice of the rehearing denial. The 10th says the attorney should have been able to figure out the actual date of the denial from available sources. It was even on Westlaw!