Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 84 C 989 - S. Hugh Dillin, Judge.
Before CUMMINGS, FLAUM, and EASTERBROOK, Circuit Judges.
FLAUM, Circuit Judge. The appellant, Martin R. Bryan, was convicted of attempted murder, rape, and confinement. On direct appeal, the Indiana Supreme court affirmed his conviction. Bryan v. State, 438 N.E.2d 709 (Ind. 1982). Bryan subsequently petitioned for habeas corpus relief, alleging that his post-arrest confession was obtained in violation of his Fifth Amendment right of have counsel present during custodial interrogation. He also alleged that he was denied "appellate due process," because his conviction was affirmed even though a majority of the Indiana Supreme Court - although for different reasons - would have reversed his conviction. We conclude that neither issue Bryan raises warrants the relief he seeks, and we therefore affirm the denial of his habeas petition.
Bryan was arrested for the attempted murder, rape, and confinement of a convenience store clerk. Upon arrest, he was read his Miranda rights, and he executed a written notice acknowledging this. However, Bryan contends that, during the ensuing interrogation, he was questioned even after he had requested an attorney. At the beginning of the defendant's interrogation, part of which was tape-recorded, the sheriff asked Bryan, "Is there any question as to your legal rights, Martin?" Bryan v. State, 438 N.E.2d 709, 715 (Ind. 1982). Then, the following exchange took place:
[Bryan]: No, but I think I'm gonna need a lawyer.
[Sheriff]: Ok, you don't want to talk to us.
A: I'll talk to you, but I'm still gonna need a lawyer.
Q: Ok . . . now do you want a lawyer before we ask you questions?
Id. Bryan did not answer the sheriff's question. Instead, he asked what the charges were against him. The defendant subsequently confessed to the abduction. The following colloquy took place immediately thereafter:
[Sheriff]: Ok, do you want an attorney here?