United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
S. MAYERON, United States Magistrate Judge
above matter came before the undersigned United States
Magistrate Judge upon Petitioner Corey Isaacson's Amended
Petition Under 28 U.S.C. 2254 For Writ of Habeas Corpus by a
Person in State Custody [Docket No. 25]. The matter has been
referred to this Court for a Report and Recommendation
pursuant to 28 U.S.C. § 636 and Local Rule 72.1.
10, 2012, Petitioner Corey Isaacson
(“Petitioner”) was convicted in Meeker County,
Minnesota for felony driving while impaired
(“DWI”), felony refusal to submit to chemical
testing, driving after revocation of driver's license,
and fleeing a peace officer in a motor vehicle. State v.
Isaacson, 2013 WL 4710650, at *2 (Minn.Ct.App. Sept. 3,
2013) (“Isaacson I”). The facts
underlying Petitioner's convictions, and relevant to the
habeas petition, are as follows: In the early morning hours
of August 14, 2011, Deputy Sheriff Jeffrey Pedersen observed
erratic driving by an SUV, which Deputy Pedersen believed
indicated that the driver was either impaired or distracted.
Id., at *1. Deputy Pedersen stopped the SUV, and
Petitioner exited the vehicle. Id. As Petitioner
approached Deputy Pedersen's squad car, Deputy Pedersen
observed that he had difficulty maintaining his balance.
Id. Deputy Pedersen saw an open can of beer on the
console of the SUV, and noticed a very strong odor of alcohol
emanating from Petitioner. Id. Deputy Pedersen also
observed that Petitioner's eyes were bloodshot and
watery, and his speech was occasionally slurred. Id.
Based on his observations of Petitioner's driving and
conduct, Deputy Pedersen believed that Petitioner was under
the influence of alcohol. Id. When Petitioner
refused to perform the standardized field sobriety tests
requested by Deputy Pedersen, Deputy Pedersen arrested him on
probable cause of driving while impaired and transported him
to the jail. Id.
was taken to the jail booking interview room, a private room
equipped with video recording capabilities. Respondent's
Appendix Part I (“Appx. I”), Ex. 1 (Omnibus Order
of Meeker County District Court), p. 6 [Docket No. 30-1]. The
room contained a desk with a laptop, phone and phonebooks.
Id. At the start of the interview, Deputy Pedersen
placed a digital tape recorder in the center of the desk
between himself and Petitioner. Id., p. 7. Deputy
Pedersen then activated the tape recorder and administered
the operative Minnesota Implied Consent Advisory to
following colloquy took place between Deputy Pedersen and
Deputy: This is a taped implied consent statement taken by
Deputy Jeff Pedersen, Badge Number 124.
Petitioner: I refused it.
Deputy: Regarding CFS Number 11008347. This statement will be
taken - be taken at the Meeker County Jail booking interview
room, Petitioner: (Indiscernible.)
Deputy: On August 14th, 2011 at approximately 0146 hours.
Petitioner: I studied law for years.
Deputy: Corey Christopher Isaacson, I believe you have been -
been driving, operating or controlling a motor vehicle in
violation of Minnesota's DWI laws. You've been placed
under arrest for this offense. Minnesota law - Minnesota law
requires you to take a test to determine if you are under -
under the influence of alcohol. Refusal to take a test is a
Petitioner: So okay. I refused it. Give me the charge. Take
me to my jail cell, whatever.
Deputy: Before making your decision about testing you have
the right to consult with an attorney.
Deputy: If you wish to do - if you wish to do so, a telephone
directory will be made available to you. If you are unable to
contact an attorney, you must make the decision on your own.
You must make your decision within a reasonable period of
Petitioner: I have a right to an attorney.
Deputy: If the test if unreasonably delayed or if you refuse
to make a decision, you will be considered to have refused
Petitioner: I was confused. I didn't know what to do
without an attorney.
Deputy: Do you understand what I've just explained?
Deputy: What don't you understand about it?
Petitioner: Well get an attorney or something.
Deputy: You have time to make a phone call to call an
Petitioner: Oh, yeah, then they got to take me to my jail
Deputy: So you're not going to call an attorney?
Petitioner: I don't know how.
Deputy: There's a phone right here.
Petitioner: I don't know how to do that.
Deputy: Well we can help you with the phone. Do you have an
attorney in mind?
Petitioner: I have no idea.
Deputy: You don't know how to operate a phone?
Petitioner: I just drove across the country from Baltimore
over here. I have no idea what you're talking about.
Deputy: Okay. You don't - you understand you're at
the Meeker County Jail. Is that correct?
Petitioner: I don't even know where it's at.
Deputy: Okay. Do you understand the first part of the
Petitioner: No, I don't understand it - (Indiscernible.)
Deputy: You've been placed under arrest for um -
Petitioner: You can't question me after I ask for a
Petitioner: Like I studied law.
Deputy: So I'm going to ask you again.
Petitioner: You got that recorded?
Deputy: It's recorded here. It's on camera.
Deputy: So I'm going to ask you again, do you wish to
consult with an attorney?
Petitioner: You honestly can't question me
(Indiscernible) Miranda. Arizona v.
Deputy: I understand that. I'm asking right now regarding
the implied consent.
Deputy: Do you want to consult with an attorney?
Petitioner: No, I don't know what you're talkin'
Deputy: What don't you understand? I'm trying to
explain this to you.
Petitioner: I plead the fifth.
Deputy: Do you understand that refusal to take a test is a
Petitioner: I have no idea what you're talking about.
Deputy: So I'm going to read this again. Christopher,
Corey Christopher Isaacson, I believe you have been driving,
operating or controlling a motor vehicle in violation of
Minnesota's DW - DWI laws. You've been placed under
arrest for this offense.
Petitioner: Too tired to understand what you're…
Deputy: You're too tired to understand that? So I'm
going to mark no on here that ah, for my talking with you
now, Corey, at this time you do not wish to consult with an
attorney. Is that correct?
Deputy: I'm giving you the opportunity to use the phone
here to consult with an attorney. I understand you're
tired. I under -
Petitioner: I already told you. You can't question me no
more, (indiscernible), attorney, under Arizona v.
Miranda. Got that recorded? I'm tired.
Deputy: Will you take a breath test?
Petitioner: Take me to my cell.
Deputy: So you will not take a breath or urine test.
Petitioner: I ain't doing nothing, (indiscernible) an
Deputy: I gave you the opportunity to do that now.
Petitioner: It don't matter. (Indiscernible.)
Deputy: What's that? I - I'm giving you that
Deputy: Okay. I'm giving you that opportunity again.
I'm reminding you -
Deputy: Under the Implied Consent statute -
Petitioner: I have no idea what you're talkin' about.
Deputy: Before making your decision about testing, you have
the right to consult with an attorney.
Deputy: If you wish to do so, a telephone and directory will
be made available to you. If you are unable to contact an
attorney, you must make your decision on your own. You must
make your decision within a reasonable amount of time.
Petitioner: You're trying to (indiscernible) me of things
(indiscernible.) I just ...