United states court of appeals for the tenth circuit raymundo romero



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Miranda challenge

Mr. Romero also complains that the district court reached an erroneous conclusion concerning his Miranda challenge. He first disagrees with the district court’s conclusion that he did not raise a Miranda challenge in the state courts.1 Although his counsel waived a Miranda challenge at trial, see Trial Tr. at 4, Mr. Romero argued on direct appeal to the OCCA that he should have been given a Miranda warning before consent to search was requested. R., doc. 2, attachment 1 at 10-11. The OCCA did not procedurally bar this argument. We conclude that the argument was presented in state court and is not barred by state procedural bar or for failure to exhaust.2

We next consider whether Stone bars the assertion of Mr. Romero’s Miranda argument. As a general rule, Stone does not apply to Fifth Amendment Miranda-based challenges. See Withrow v. Williams, 507 U.S. 680, 683 (1993). Here, however, the Miranda argument is raised as part of Mr. Romero’s Fourth Amendment challenge. In essence, he argues that his consent to search was involuntary because it was obtained in violation of Miranda.3

Simply put, the real issue Mr. Romero raises here is voluntary consent to search (a Fourth Amendment issue) rather than self-incrimination (a Fifth Amendment issue). See United States v. Smith, 3 F.3d 1088, 1098 (7th Cir. 1993) (“[C]onsent to search is not a self-incriminating statement and, therefore, a request to search does not amount to interrogation.”). Therefore, although denominated a Miranda claim, the claim is barred by Stone. Cf. Tukes v. Dugger, 911 F.2d 508, 513 (11th Cir. 1990) (applying Stone to bar Sixth Amendment claim of invocation of right to counsel, where real thrust of claim was consent to search under Fourth Amendment).

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