[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 15, 2006

THOMAS K. KAHN

N o . 05-16817

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 04-60356-CV-CMA

C H A R L E S WILLIAMS,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT

OF CORRECTIONS,

James McDonough, Secretary,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(S ep tem b er 15, 2006)

B efo re BLACK, BARKETT and PRYOR, Circuit Judges.

P E R CURIAM:

C h a r le s Williams, a Florida prisoner, appeals the denial of his petition for a w rit of habeas corpus. We affirm.

I. BACKGROUND W illiam s was arrested for sexual abuse of a child. At the time of his arrest, after he had been read and had waived his Miranda warnings, Williams stated, "T h is is being blown out of proportion. I've touched her; she is always teasing me, b u t I don't want to incriminate myself." After he made the statement, the officer th at arrested Williams ceased his questioning.

At trial, the prosecution used Williams's statement to the arresting officer th ree times. On each occasion, Williams's attorney objected and argued that the p r o s e cu to r had commented on Williams's right to remain silent. The trial court o v e rr u le d each objection and found that Williams's statement was appropriate as p art of his confession.

On direct appeal, the Florida District Court of Appeals affirmed the ad m issio n of the statement. See Williams v. State, 755 So.2d 714, 717 (Fla. Dist.

C t. App. 1999). On collateral review before the Florida courts, Williams argued th at his counsel was ineffective for failure to suppress the incriminating statement b e f o r e trial. The Florida courts ruled that the claim was procedurally barred b ecau se Williams had raised the issue on direct appeal. O n federal habeas review, the district court ruled that Williams's counsel w as not ineffective for failure to move to suppress the incriminating statement b ecau se there was not a reasonable probability that the trial court would have g r a n te d the motion. The district court also ruled that the affirmance on direct a p p e a l of the decision to admit the statement was not contrary to, or an u n reaso n ab le application of, clearly established Supreme Court precedent.

II. STANDARD OF REVIEW "I n examining a federal district court's denial of a [section] 2254 habeas p e titio n , we review questions of law de novo and findings of fact for clear error." Occhicone v. Crosby, 455 F.3d 1306, 1308 (11th Cir. 2006).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal district court may not grant the petition for a writ of habeas corpus of a s ta te prisoner . . . with respect to any claim that was adjudicated on the merits in S tate court proceedings unless the adjudication of the claim­ ( 1 ) resulted in a decision that was contrary to, or involved an u n r ea so n a b le application of, clearly established Federal law, as d eterm in ed by the Supreme Court of the United States; or (2 ) resulted in a decision that was based on an unreasonable d eterm in atio n of the facts in light of the evidence presented in th e State court proceeding.

2 8U.S.C. § 2254(d). "A state-court decision will . . . be contrary to [the Supreme C o u r t's ] clearly established precedent if the state court applies a rule that co n trad icts the governing law set forth in [those] cases." Williams v. Taylor, 529 U .S . 362, 405, 120 S. Ct. 1495, 1519 (2000). "A state-court decision will also be c o n tr ar y to [the Supreme Court's] clearly established precedent if the state court co n fro n ts a set of facts that are materially indistinguishable from a decision of [the S u p rem e Court] and nevertheless arrives at a result different from [that] p reced en t." Id. at 406, 120 S. Ct. at 1519-20. "[W]hen a state-court decision u n re as o n ab ly applies the law of [the Supreme Court] to the facts of a prisoner's case, a federal court applying [section] 2254(d)(1) may conclude that the s ta te -c o u r t decision falls within that provision's `unreasonable application' clause." Id. at 409, 120 S. Ct. at 1521. The factual determinations of the state court "shall b e presumed to be correct. The applicant shall have the burden of rebutting the p resu m p tio n of correctness by clear and convincing evidence." 28U.S.C. § 2254 ( e) (1 ) .

III. DISCUSSION A defendant has a right to remain silent, and the invocation of that right can n o t be used against the defendant. Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct.

2 2 4 0 , 2241 (1976). To avail himself of the right to remain silent, a defendant must m ak e an unequivocal invocation of that right. Coleman v. Singletary, 30 F.3d 1 4 2 0 , 1424 (11th Cir. 1994); see Davis v. United States, 512 U.S. 452, 461-62, 114 S . Ct. 2350, 2356 (1994). The "primary protection afforded suspects subject to c u s to d ia l interrogation is the Miranda warnings themselves." Davis, 512 U.S. at 4 6 0 , 114 S. Ct. at 2356. Whether an invocation of the right to silence is u n eq u iv o cal is determined by an objective inquiry. Medina v. Singletary, 59 F.3d 1 0 9 5 , 1101 (11th Cir. 1995).

Williams argues that his counsel was ineffective for failure to obtain the su p p ressio n of Williams's statement that Williams "[didn't] want to incriminate [h im self]." Williams argues that the statement was an invocation of his right to rem ain silent and its admission violated his right to due process. We disagree.

Because Williams's equivocal statement regarding his desire not to in crim in ate himself could be construed as part of his admission, the determination o f the Florida courts that Williams's statement was not an invocation of his right to rem ain silent was neither contrary to, nor an unreasonable application of, clearly estab lish ed Supreme Court precedent. Likewise, Williams's counsel was not in effectiv e for failing to file a motion to suppress Williams's statement because the statem en t was admissible. There is no likelihood that a motion to suppress the statem en t would have been granted. IV . CONCLUSION T h e denial of Williams's petition for habeas corpus is AFFIRMED.