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February 14, 1997

THOMAS PAGE, Respondent.

The opinion of the court was delivered by: BUCKLO

 Petitioner, Donald Winston, was convicted of murder and robbery in March 1980 in the Circuit Court of DuPage County, Illinois. Mr. Winston has appealed his convictions in the Illinois state court system through both the direct appellate review mechanism and the Illinois post-conviction relief statute. All of his appeals have been unsuccessful in overturning his convictions. Accordingly, Mr. Winston petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is denied.

 Mr. Winston claims that the following four grounds justify action by this Court to grant him relief: (1) violation of his Miranda rights during custodial interrogation; (2) prosecutorial misconduct by exceeding the scope of direct examination when cross examining Mr. Winston and implicitly commenting on his failure to testify; (3) use of perjured testimony by the State to secure the conviction; and (4) a prison sentence which amounts to the imposition of cruel and unusual punishment. *fn1" None of these grounds, however, permit the Court to grant Mr. Winston's petition.

 Violation of Miranda Rights

 Mr. Winston alleges that the State violated his Miranda rights when it interrogated him without providing him with an attorney. He maintains that he requested the police investigators and the state's attorneys who interviewed him to appoint an attorney for him prior to his interrogation, but these officials took no action. As a result, the confession that resulted from the State's interrogation of Mr. Winston was obtained illegally. The State disputes Mr. Winston's claims. It argues that Mr. Winston was told of his Miranda rights, understood those rights, and voluntarily waived his right to counsel when making his confession. The Illinois Appellate Court agreed with the State's version and upheld the trial court's determination that Mr. Winston's testimony was not credible. People v. Winston, 106 Ill. App. 3d 673, 682-85, 435 N.E.2d 1327, 1334-36, 62 Ill. Dec. 355 (2nd Dist. 1982).

 The Seventh Circuit has provided a framework for analyzing these types of habeas claims. "When a Miranda waiver is challenged, two distinct questions are presented: whether the waiver was voluntary, knowing, and intelligent as a matter of fact, and whether it was involuntary as a matter of law." Henderson v. DeTella, 97 F.3d 942, 946 (7th Cir. 1996). The first question, concerning the knowledge, understanding and willingness of the petitioner to waive his rights, often involves conflicting testimony from both the State and the petitioner and "thus demands credibility assessments that typically only the trier of fact can make." Id. (citations omitted). These credibility assessments and other factual determinations made by the state court as the trier of fact are "entitled to a presumption of correctness" under 28 U.S.C. § 2254(e)(1). Id. (citations omitted). *fn2"

 Furthermore, the trial court identified several statements made by Mr. Winston which indicated that he understood his right to have an attorney prior to police questioning. Mr. Winston knew that if he talked with the police, they might use his statements against him, but if he made those same statements to his lawyer, his lawyer would not use them against him. Tr. of 1/21/80 at 8. In addition, the trial court found that Mr. Winston relinquished his right to an attorney because after being told by the state's attorney that he would "'adhere to'" his right to have an attorney present, Mr. Winston asked, "'what do you want to know?'" Winston, 106 Ill. App. 3d at 684, 435 N.E.2d at 1335.

 I have no basis upon which to dispute the trial court's factual findings. Mr. Winston contends that the testimony offered by the police and the state's attorneys was replete with inconsistencies which negate the weight accorded to it by the trial court. Putting aside the deference owed to the trial court's factual findings, I don't find clear and convincing evidence in the record to support Mr. Winston's contentions. Despite Mr. Winston's failure to point the Court to specific parts of the record which would support his position, the Court's own independent search of the record does not reveal any reason to disturb the trial court's findings. In fact, the record reveals that all of the state officials involved with interviewing Mr. Winston informed him of his rights and specifically told him that he did not have to speak with them. Tr. of 12/14/79 at 26, 36-37, 50, 74-75, 96, 1002-03. Moreover, each person testified that Mr. Winston understood his rights and agreed to answer their questions. Id. Given these facts and the deference owed to the trial court's credibility assessments, I must accept the trial court's finding that Mr. Winston both comprehended and relinquished his Miranda rights. See Henderson, 97 F.3d at 949. Mr. Winston's real contention focuses on the state courts' interpretation and application of the legal standards governing Miranda rights. For that issue, the Court turns to the next step of the inquiry.

 The second question, regarding the involuntariness of the confession, is a legal question which the Court reviews de novo. Id. at 947. This question involves an examination of the overall circumstances surrounding the confession to ensure that it was the "product of fundamentally fair procedures, untainted by any type of coercion . . . ." Id. (citations omitted). Despite the legal nature of the inquiry, its resolution often will turn on "subsidiary" factual issues which are entitled to a presumption of correctness. See Bryan v. Warden, Ind. State Reformatory, 820 F.2d 217, 219 (7th Cir. 1987).

 The case presently before the Court is one of these cases in which the factual determinations of the state court affect the de novo review of the legal issues. As already explained above, the Court will defer to the trial court's factual determinations that Mr. Winston understood his Miranda rights and chose to forego those rights with respect to the presence of counsel prior to police questioning. Hence, the remaining issue is whether Mr. Winston voluntarily made this choice. He argues that the police and state's attorneys caused him to be very nervous and anxious throughout their questioning and cajoled him into making a confession. Although the record shows that Mr. Winston seemed agitated during questioning and asked to see a psychiatrist, these facts do not demonstrate that the police interrogation amounted to coercion. In fact, Mr. Winston's anxious state just as easily might be attributed to the fact that the police were questioning him about a murder he committed. What the record does demonstrate is that the police and state's attorneys tried to accommodate Mr. Winston by offering him soft drinks and cigarettes. Tr. of 12/14/79 at 104-05. Such offers do not constitute coercion or cajolement on the part of state authorities. Cf. Clewis v. State of Texas, 386 U.S. 707, 712, 18 L. Ed. 2d 423, 87 S. Ct. 1338 (1967) (holding that deprivation of food and sleep may be a factor in proving coercion).

 Indeed, Mr. Winston's conduct during the interrogation proves just the opposite of coercion. When Mr. Winston was asked two questions relating to his sexual relationship with the victim, he declined to answer them. Tr. of 12/14/79 at 101; see also Winston, 106 Ill. App. 3d at 685, 435 N.E.2d at 1336. By refusing to answer some of the police's questions, he demonstrated the voluntary, non-coerced nature of his statements.

 Finally, Mr. Winston claims that the state courts only discussed his comprehension of his Miranda rights; they never showed that he relinquished them. I disagree. The Supreme Court has held that a valid Miranda waiver encompasses both comprehension and relinquishment of rights. Brewer v. Williams, 430 U.S. 387, 404, 51 L. Ed. 2d 424, 97 S. Ct. 1232 (1977). The appellate court recognized this legal standard in its opinion, Winston, 106 Ill. App. 3d at 685, 435 N.E.2d at 1336, and both the trial and appellate courts showed facts proving both comprehension and relinquishment on the part of Mr. Winston. As detailed above, Mr. Winston ...

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