Case Information
Before: *1 BOGGS and CLAY, Circuit Judges; and STAFFORD, District Judge. [*]
BOGGS, Circuit Judge. In May 2008, a Michigan jury convicted Brian Miller of first-degree home invasion and second-degree criminal sexual conduct. The state trial judge held a sentencing hearing and imposed consecutive terms of 50 to 240 months and 24 to 180 months of imprisonment for the respective charges. Miller asserted his innocence throughout the hearing, but the judge urged Miller to admit responsibility for the sake of his family and that of the victim. The judge criticized Miller when he failed to do so. Miller moved for resentencing, arguing among other things that the trial court based its sentence in part on Miller’s assertion of innocence. The trial judge denied the motion, again commenting on Miller’s failure to accept responsibility. Miller appealed to the Michigan Court of Appeals, which concluded that the trial court did not base its sentencing decision on Miller’s refusal to admit guilt. The Michigan Supreme Court denied Miller’s application for review. After his direct appeals, Miller filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The district court granted Miller’s petition in part, finding that the trial court violated Miller’s Fifth Amendment rights by basing its decision to make Miller’s sentences consecutive on an adverse inference drawn from Miller’s repeated assertions of innocence.
The district court granted relief under 28 U.S.C. § 2254(d)(1) and (d)(2), holding that the Michigan Court of Appeals unreasonably applied clearly established federal law as determined by the Supreme Court and unreasonably determined the facts in light of the evidence. However, we find no law, clearly established or unreasonably applied, that would support Miller’s habeas claim. Nor do we find a factual issue that would warrant consideration under § 2254(d)(2). For the reasons that follow, we reverse the district court and deny Miller’s petition for habeas corpus.
I
The facts of this case arise from an August 2007 event involving Miller and a female who was a neighbor to Miller and a friend of Miller’s sister. The victim awoke early in the morning to find Miller, donning a mask, in her bedroom doorway. Miller rushed the victim, tore off her shirt, fondled her, and attempted to rape her. He stopped after the victim identified Miller by his voice. The two talked for some time afterward. Miller admitted to breaking into the victim’s home through a laundry-room window and to being under the influence of alcohol and drugs. The victim ordered Miller to leave after he made another unwanted sexual advance. Before leaving, Miller threateningly ordered the victim not to report the incident. Notwithstanding the threat, the victim phoned the police, who immediately arrested Miller. He pled not guilty, but was convicted after a four-day trial.
At sentencing, the trial judge heard from both Miller and his attorney. Speaking first, Miller’s attorney portrayed him as a young man with a rough background who posed no threat to the community and who was prepared to accept the consequences of his actions. After taking statements from the victim and the prosecutor, the trial judge permitted Miller to allocute. It was at this point that Miller began to assert his innocence:
I’m -- I’m not a . . . whatever she is saying. This never happened. . . . And you know there’s just, I don’t know what’s going on. You know everybody’s blaming it on me. But you know, I’m the one with the job, I had a job. I got my diploma. I’m special ed. You know, . . . I don’t know how to say it, you know, to you right - - right now, because it’s just going through my head so fast. I don’t know what to tell you. And it’s just -- just so hard on me.
Later, he appears to indicate that the victim picked on him as a child:
You, know [sic] I’ve been teased as a kid by -- by -- by the defendant, you know, a lot. You know when I was growing up, that’s -- that’s hard, you know, going through school. Oh, you’re in special ed, ha -- ha -- ha, you know that, you know. You’re a retard, you know? How - - how do you feel, you know, about all that.
Responding to Miller’s allocution, the trial court stated that, based upon what it had seen during the trial, it believed Miller was a danger to the community. After expressing its views on the weight of the evidence, the court noted its concern with the grief that Miller’s denial of responsibility caused Miller’s family:
Now your family, I don’t know what they think. . . . Ah, you know, obviously they don’t think you did it. They believe you. Ah, you know they believe this young lady is just making it up because she thinks, you know, she doesn’t like you because you’re special ed. . . . But quite frankly, I don’t know that they do you any favor by accepting that. I think they would probably be better off if they told you point blank they think you did this, and you shouldn’t be conducting yourself in this way, and they want to get you help. That’s what I think they should be saying to you based on what I saw here. ‘Cause I -- I have no doubt in my mind you did it, ah, there’s no doubt about it, you did this.
The trial judge went on to admonish Miller personally, stating,
Your family is going to suffer the rest of their lives because they’re going to think that you went to prison when you shouldn’t have. And they’re going to blame this young lady for the fact that you went to prison. Um, and you’re never going to get any help. And you’re going to live to do it again. And then the next time you’ll go away for the rest of your life. That’s the bad part about it. And to be honest with you, if you wanted to do your family a favor, you would turn to them and you would admit [the crime] to them. You would say, look I absolutely did this. Because they need to know that you did it, so they can get you help.
The court doubted that Miller would actually admit his guilt:
But you’re not going to do that. You’re gonna to do [sic] like every other defendant I’ve sent to prison. You’re gonna deny it all the way to prison. And then they’re going to spend money on appellate lawyers, and all this kind of stuff for you, ‘cause they think you got railroaded.
After the trial judge criticized Miller’s failure to accept responsibility for a second time, Miller and the judge engaged in the following exchange:
THE COURT: Tell them what you did, so that they can go on with their lives and not think that you’ve been railroaded. But you’re not gonna do it. So everyone continues to suffer.
MR. MILLER: Because I didn’t do it.
THE COURT: I’m sorry?
MR. MILLER: Because I didn’t do it.
THE COURT: That’s what I expected you to say.
MR. MILLER: You -- you got your own story, she’s got her own story, I got my own story.
The trial court proceeded to impose consecutive sentences at the high end of the state sentencing guidelines. In explaining its reasoning, the court stated,
I think based on the discussion that I’ve had here, I’m convinced that you’ve not learned anything. That you have no remorse for what you’ve done. And -- and because of that, I am going to exercise my discretion to run consecutive instead of concurrent. Because I think that, ah, I need to remove you from society as long as I possibly can. To protect the victim, number one. Ah, but also to hopefully hope [sic] that you’ll mature, ah, to an extent that when you do get out that you don’t repeat this kind of behavior again.
Miller moved for resentencing on a number of grounds, including that the trial court based its sentence on Miller’s continued assertion of innocence. The trial court rejected this argument. It noted that any negative references to Miller’s failure to accept responsibility were merely commentary on how “unfair [it was] for him to allow this relationship that existed between his sister and [the victim] to sour when he knows that [he committed the crime] and all the evidence shows that he did it,” but that the court “would not have taken that into consideration in [Miller’s] sentencing.”
The Michigan Court of Appeals affirmed Miller’s sentence.
People v. Miller
, No. 286771,
The district court below granted in part Miller’s petition for a writ of habeas corpus, finding
that the Michigan Court of Appeals unreasonably applied clearly established federal law and
unreasonably determined the facts in upholding Miller’s sentence.
Miller v. Lafler
, No. 2:10-CV-
14955,
II Both parties agree that the deferential standard of the Antiterrorism and Effective Death Penalty Act applies to this case. Under AEDPA, we may not grant a writ of habeas corpus on a claim that a state court has resolved on the merits unless the decision:
(1) . . . was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Meeting either of these standards is difficult. “As amended by AEDPA, §
2254(d) stops short of imposing a complete bar on federal court relitigation of claims already
rejected in state proceedings.”
Harrington v. Richter
,
A
To establish a successful claim for relief under paragraph (d)(1), a petitioner must show that
the state court unreasonably applied clearly established federal law. For the purposes of AEDPA,
a law is “clearly established” if it is enshrined in “the holdings, as opposed to the dicta, of [the
Supreme Court’s] decisions as of the time of the relevant state-court decision.”
Williams v. Taylor
,
Even then, the state court’s ruling must involve “an unreasonable application of” clearly established federal law. “Unreasonable” in this context does not mean merely incorrect, but rather [1]
means “objectively unreasonable.”
Lockyer v. Andrade
,
B
Miller also asks us to review his case under § 2254(d)(2) for an unreasonable factual
determination by the state court. He correctly points out that the district court cited both paragraphs
(d)(1) and (d)(2) in its opinion below. However, in our
de novo
review of the district court’s
AEDPA discussion, we find no issue under paragraph (d)(2). The question in this case is purely a
legal one: Did the Michigan Court of Appeals unreasonably apply clearly established federal law,
as determined by the Supreme Court, in holding that the trial judge’s comments did not violate
Miller’s Fifth Amendment rights? The district court seemingly had the same view, as it devoted the
totality of its analysis to determining the applicable rule of law.
Miller v. Lafler
,
III
Miller argues that the state trial court violated his Fifth Amendment right against self-
incrimination by punishing him for maintaining his innocence at sentencing, and that the Michigan
Court of Appeals unreasonably applied clearly establish federal law in upholding his sentence.
Miller points to
Estelle v. Smith
,
A
It is axiomatic that the Fifth Amendment protects a defendant’s right “to remain silent unless
he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such
silence.”
Estelle
,
While the Court has spoken clearly on the principle to which we must adhere, it has been less specific on how we are to put it into practice. In , the Court held that a sentencing court may not make adverse inferences from a defendant’s silence as to the facts of the offense. Id. at 330. The defendant in pled guilty to a number of drug offenses, but did not admit to trafficking a specific amount of narcotics. At her sentencing hearing, the government produced witnesses to testify as to the amount of drugs involved (which in turn would determine her mandatory minimum sentence). Though her lawyer cross-examined the government’s witnesses, the defendant herself did not testify. In finding credible the testimony of the government witnesses, the district court noted that it held the defendant’s silence against her, concluding that her plea waived her right to remain silent. Id. at 319. The Supreme Court rejected the district court’s legal reasoning and held that the court’s adverse factual inference violated the Fifth Amendment by effectively relieving the government of its burden to prove the facts of the crime relevant to sentencing. Id. at 330. In so doing, the district court “enlist[ed] the defendant” into the government’s case against her “at the expense of the self-incrimination privilege.” Ibid.
The majority went on to qualify this broad proposition: “Whether silence bears upon the determination of a lack of remorse, or upon acceptance of responsibility for purposes of [a] downward adjustment . . . is a separate question. It is not before us, and we express no view on it.” Ibid. Sensing the confusion that this caveat would cause, Justice Scalia, writing for four dissenting justices, warned that lower courts would have to deal with “clutter swept under the rug” in addressing “determinations of acceptance of responsibility, repentance, character, and future dangerousness, . . . that is to say, . . . the bulk of what most sentencing is all about.” Id. at 340 (Scalia, J., dissenting). The dissent questioned how lower courts would be able to police effectively the line between inferences as to the facts of the crime and inferences as to the defendant’s lack of remorse, uncooperativeness, and the like. Ibid. Finally, the dissenters predicted “a decent period of confusion in the lower courts,” ibid. , a prediction that, as discussed below, appears to have come true.
B
Miller asserts that the state trial court violated
Mitchell
by holding his repeated assertions of
innocence against him. However, Miller’s claim does not fit within the narrow holding of
Mitchell
.
For one,
Mitchell
addressed negative
factual
inferences as to the circumstances and details of the
crime based upon a defendant’s
silence
. The adverse inference made in pertained to an
unproven, unadmitted fact of the crime, the truth of which would determine the applicability of a
mandatory sentencing provision. Here, the Michigan trial court stated, and the appellate court
agreed, that any negative inference drawn from Miller’s allocution applied to his perceived level of
remorsefulness and ability to rehabilitate, both of which are sentencing factors that are properly
assessed for the purpose of applying a discretionary consecutive-sentence provision. Furthermore,
any negative inference made would have been based on Miller’s
statements
, as opposed to his mere
silence. This voluntary act not only distinguishes our case from , but also may have waived
Miller’s Fifth Amendment privilege as to the content of his statements.
[2]
Though it is arguable that an inference such as the one allegedly made here violates the spirit
of
Mitchell
, this is not enough for the purposes of AEDPA. We cannot grant habeas on a claim that
does not rest on a violation of “clearly established Federal law,” 28 U.S.C. § 2254(d)(1), and a rule
of law is not clearly established unless the Supreme Court has “squarely established” it.
Mirzayance
,
C
To the extent that Miller bases his claim on the clearly established rule of
Mitchell
, he must
also show that the state court’s application of this rule is “so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for fairminded
disagreement.”
Harrington
,
1
This circuit has previously addressed on three separate occasions. The first of these
is
Ketchings v. Jackson
,
Furthermore, Ketchings , though similar to the case before us, is ultimately inapposite. The defendant in Ketchings sought resentencing under the theory that the state trial judge made an adverse inference from his failure to admit guilt. Similar to our case, the state court in Ketchings denied the defendant’s claim on appeal on the ground that any negative comments made by the trial judge merely went to the defendant’s lack of remorse and rehabilitative potential. Our panel upheld the district court’s grant of a writ, citing . Id. at 512–14.
Were this the end of the matter, Miller might have a strong argument. Ketchings , however, is distinguishable on two key grounds. The first of these is purely factual: the defendant in Ketchings clearly did express remorse during his allocution. Id. at 513–14. In other words, the state court’s reason for handing down a harsher sentence reeked of pretext—one could not reasonably infer a lack of remorse from the defendant’s failure to admit guilt, as he expressed sympathy for the family of the victim. The same cannot be said in Miller’s case.
The second distinction is of a more legal nature: Ketchings does not specify whether relief issued due to an unreasonable application of clearly established federal law (§ 2254(d)(1)) or an unreasonable determination of fact (§ 2254(d)(2)). Id. at 514. While this is a seemingly technical point, Ketchings should not influence our (d)(1) analysis unless it is in fact a (d)(1) ruling. Indeed, the case reads very much like a (d)(2), unreasonable-determination-of-fact analysis. The Ketchings panel focused heavily on examining the facts of the case, and the fate of the claim turned on the fact that, contrary to the trial court’s inference, Ketchings expressed remorse for the pain to the victim’s family. Id. at 512–14. This suggests that the panel was concerned with the state court’s determination of fact as opposed to its application of law. Consistent with this reading is the fact that the panel spent only one paragraph parsing what was (and still is) a confusing body of Fifth Amendment law. Id. at 512. If the panel were conducting a (d)(1) analysis, it would have certainly spent more time with the applicable case law. We therefore find Ketchings distinguishable and unpersuasive.
The next case in this series is
United States v. Kennedy
,
Though uncited by either party, our recent split-panel decision in
Woodall v. Simpson
, 685
F.3d 574 (6th Cir. 2012), warrants attention. The
Woodall
majority granted habeas in a state death-
penalty case, finding that the trial judge’s failure to give a no-adverse-inference instruction during
the sentencing phase of the trial violated the defendant’s Fifth Amendment rights. That this case
ultimately concerns the right to a prophylactic instruction under
Carter v. Kentucky
,
2
We next address the law of our sister circuits. As noted previously,
Mitchell
has divided
courts across the country.
See United States v. Caro
,
The Fourth Circuit in
Caro
took the first of these approaches, observing that because
“remorse implies consciousness of guilt, speaking words of remorse for conduct prevents a defendant
from later denying the conduct,” and that “
Estelle
and together suggest that the Fifth
Amendment may well prohibit considering a defendant’s silence regarding the non-statutory
aggravating factor of lack of remorse.”
Caro
,
Roman
,
Conversely, the Seventh Circuit in
Burr v. Pollard
,
3
Both the express language and the majority circuit interpretation of
Mitchell
favor a narrow
application of the no-adverse-inference rule. Furthermore, the courts that have favored an expansive
view of
Mitchell
have done so in contexts where the defendant
remained silent
.
Woodall
, 685 F.3d
at 579 (holding that a defendant who did not testify during the penalty phase of his death-eligible
trial was entitled to a
Carter
instruction);
Caro
,
However, the panel need not decide the correct interpretation of for the purposes of this case. It is enough that fairminded jurists can and do disagree on the applicable scope of Mitchell. Accordingly, we cannot say that the Michigan Court of Appeals unreasonably applied the rule from that case. To the extent that Miller asks us to expand Mitchell , he asks to grant relief based upon a rule that is not “clearly established Federal law, as determined by the Supreme Court of the United States.” Regardless of which route we take, the result is the same: Miller is not entitled to habeas relief under § 2254(d)(1).
IV
In conclusion, the district court erred in granting habeas. Fairminded jurists disagree as to the scope and application of ’s no-adverse-inference rule, and we therefore cannot say that the Michigan Court of Appeals unreasonably applied it in this case. To the extent that Miller asks us to expand , his claim does not rest upon “clearly established Federal law.” His argument under § 2254(d)(1) accordingly fails. We also find that, contrary to his assertion before this court, Miller’s claim does not raise an issue under § 2254(d)(2). As Miller has failed to demonstrate that he is entitled to relief under § 2254, we REVERSE the district court and DENY the writ of habeas corpus.
Notes
[*] The Honorable William H. Stafford of the United States District Court for the Northern District of Florida, sitting by designation.
[1] Miller does not assert that the Michigan Court of Appeals made a decision “contrary to” clearly established federal law, and we therefore limit our analysis to the “unreasonable application” standard.
[2] Since Miller cannot clear the hurdle of AEDPA deference, we need not address this issue.
It is worth noting, however, that at least one of our sister circuits has endorsed this position,
United
States v. Whitten
,
[3]
Caro
cites a Third Circuit opinion,
Lesko v. Lehman
,