Case Information
*1 Before: KENNEDY, SILER, and McKEAGUE, Circuit Judges.
_________________
COUNSEL ARGUED: Raymond G. Mullins, Ypsilanti, Michigan, for Appellant. Jon P. Wojtala, WAYNE COUNTY PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Raymond G. Mullins, Ypsilanti, Michigan, for Appellant. Jon P. Wojtala, WAYNE COUNTY PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellee.
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OPINION
_________________
CORNELIA G. KENNEDY, Circuit Judge. Petitioner David Dennard McKinney is a Michigan prisoner sentenced to life imprisonment on a felony-murder conviction stemming from his participation in the robbery and arson of a gun shop. He now petitions for a writ of habeas corpus on the grounds that the admission at trial of incriminating statements he gave to police violates the rights established by the Supreme
1
Court in
Miranda v. Arizona
,
FACTUAL AND PROCEDURAL BACKGROUND [1] On August 3, 2004, emergency personnel responded to a fire at Alexander’s Gun Shop in Inkster, Michigan. Several hours passed before firefighters were able to suppress the fire, which caused large quantities of ammunition kept in the store to explode and the roof to collapse. Once the police were able to access what remained of the building, they discovered the body of Clyde Alexander, one of the store’s owners, with tie-cuffs attached to one of his wrists. An autopsy confirmed that he had died from smoke inhalation and extensive burns, but it also indicated that he had been beaten before his death and was possibly unconscious when the fire started. Additionally, investigators determined that approximately ninety guns were missing from the store and accelerants had been used to set the fire. The Inkster Police Department and the U.S. Department of Justice, Bureau of Alcohol, Tobacco, and Firearms (“ATF”) [2] began a joint investigation into the death of Alexander and the suspected robbery and arson of the gun shop.
Law enforcement officers received information implicating McKinney in the fire as early as August 17, 2004, at which time he submitted to a polygraph examination when briefly in police custody on other charges. At this time, McKinney retained counsel. On November 20, 2004, McKinney was again arrested on unrelated charges, and Detective Anthony Delgreco used the opportunity to interrogate McKinney about his possible involvement in the Alexander’s case. Delgreco read McKinney his rights under , obtained his written waiver of those rights, and confronted him with the evidence against him. Though McKinney initially denied any participation in or knowledge of the crimes, he eventually said “I planned it.” Immediately thereafter, McKinney asked for his lawyer and Delgreco stopped the interrogation. While escorting McKinney back to his cell, Delgreco informed him that the Alexander’s case might be prosecuted by the federal government and, in that event, McKinney could face the death penalty for his role in the crimes.
Around 7:15AM the following morning, November 21, 2004, Delgreco entered McKinney’s cellblock to perform a routine head count of the prisoners. McKinney called out to Delgreco and said, according to Delgreco, that “he wanted to talk to me and the ATF agent to see what the Feds had against him and how the case was going to proceed.” Delgreco reminded McKinney that they could not speak due to McKinney’s prior request for his attorney, but McKinney persisted and agreed to talk without his lawyer. In the presence of Delgreco and ATF Agent Ray Tomaszewski, McKinney signed a letter stating “I, David Dennard McKinney, saw Detective Delgreco in the cell block and asked Detective Delgreco if I could hear what the ATF agent had to say about the case. Detective Delgreco contacted the ATF agent and then read me my Miranda rights.” Delgreco also re-read McKinney the warnings and McKinney signed another waiver. McKinney then gave a written statement and affidavit admitting that he had both planned the robbery and served as a lookout during it. However, he insisted that starting the fire and killing Alexander had not been part of his plan and, in fact, he had not learned of these events until he later saw them on the news.
On August 24, 2005, a jury in Wayne County Circuit Court found McKinney guilty of felony murder, Mich. Comp. Laws § 750.316(1)(b), and accessory after the fact to arson, id. § 750.505, for his role in the robbery, fire, and homicide at Alexander’s Gun Shop. The only evidence presented at trial to link McKinney to those crimes was his written confessions of November 21, 2004. On September 7, 2005, the circuit court sentenced him to a mandatory term of life imprisonment for the felony murder conviction and a concurrent term of two-to-five years on the accessory conviction.
Before trial, the circuit court had denied McKinney’s motion to suppress his
November 21, 2004 statements as products of an unlawful interrogation. McKinney
renewed this objection in a post-judgment motion for a new trial, and the circuit court
declined to overturn its previous ruling. On McKinney’s direct appeal of his conviction
and sentence, the Michigan Court of Appeals concluded that the circuit court had not
erred by allowing McKinney’s statements into evidence.
People v. McKinney
, No.
269823,
On November 18, 2008, McKinney filed a habeas corpus petition in the United
States District Court for the Eastern District of Michigan under 28 U.S.C. § 2254, again
arguing that admission of his November 21, 2004 statements at trial violated his
constitutional rights. The district court denied his petition, holding that the state court
had not unreasonably applied clearly established federal law in determining that
McKinney’s Fifth Amendment rights had not been violated.
McKinney v. Ludwick
, No.
08-14834,
STANDARD OF REVIEW
In a habeas case, this court reviews the district court’s legal conclusions
de novo
and its factual determinations for clear error.
Lovell v. Duffey
,
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that 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) resulted in a decision that 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). AEDPA thus imposes a “‘highly deferential standard for
evaluating state-court rulings,’ which demands that state-court decisions be given the
benefit of the doubt.”
Woodford v. Visciotti
,
A state-court decision is “contrary to . . . clearly established Federal law,”
28 U.S.C. § 2254(d)(1), “if the state court arrives at a conclusion opposite to that reached
by [the Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable facts,”
Williams v. Taylor
,
The habeas petitioner has the burden of rebutting, by clear and convincing
evidence, the presumption that the state court’s factual findings are correct. 28 U.S.C.
§ 2254(e)(1). Under § 2254(d)(2), “a decision adjudicated on the merits in a state court
and based on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state-court
proceeding.”
Miller-El v. Cockrell
,
ANALYSIS
On appeal, McKinney challenges the district court’s ruling that he is not entitled
to habeas relief based on his claim that the Michigan courts unreasonably applied clearly
established federal law in admitting his November 21, 2004 statements at trial. In
essence, he argues that the government’s use of these statements violates the procedural
protections designed by the Supreme Court to safeguard his Fifth and Fourteenth
Amendment right against self-incrimination from the “inherently compelling pressures”
of custodial interrogation.
See Miranda
,
In its watershed decision in , the Supreme Court held that, prior to
questioning, police must warn an individual “that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed.”
Id.
at 444. After being
informed of these rights, the individual may nevertheless choose to speak with police.
In that case, any of his subsequent statements may be used as evidence against him,
provided the government can demonstrate that he “waived his privilege against
self-incrimination and his right to retained or appointed counsel . . . [under the] high
standards of proof [set] for the waiver of constitutional rights.”
Id.
at 475 (citing
Johnson v. Zerbst
, 304 U.S. 458 (1938)). This requires proof that the individual
relinquished his rights voluntarily—as a “product of a free and deliberate choice rather
than intimidation, coercion, or deception”—and knowingly—“with a full awareness of
both the nature of the right being abandoned and the consequences of the decision to
abandon it.”
Moran v. Burbine
,
However, if an individual wishes to assert either the right to remain silent or the
right to the presence of counsel,
Miranda
requires the police to scrupulously honor this
decision. “If the individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease.”
Miranda
,
384 U.S. at 473-74. And, “[i]f the individual states that he wants an attorney, the
interrogation must cease until an attorney is present.”
Id.
at 474. The “interrogation”
precluded by an individual’s invocation of his rights under includes not only
express questioning by police, but also “any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the suspect.”
Rhode Island
v. Innis
,
In
Edwards
, the Supreme Court strengthened the protection available to an
individual who invokes his right to have counsel present during a custodial interrogation
by holding that “a valid waiver of that right cannot be established by showing only that
he responded to further police-initiated custodial interrogation even if he has been
advised of his rights.”
In this case, the parties do not dispute that McKinney invoked his right to counsel in a custodial interrogation during his November 20, 2004 interview with Delgreco. At issue is whether Delgreco’s subsequent remark to McKinney that he could possibly face the death penalty constituted an interrogation in violation of Edwards and, if so, whether that interrogation renders invalid McKinney’s confessions on November 21, 2004. The Michigan Court of Appeals—whose opinion we look to as the last reasoned state-court determination of McKinney’s Fifth Amendment claim, see Davie v. Mitchell , 547 F.3d 297, 315 (6th Cir. 2008)—determined, over the dissent of one judge, that Delgreco’s statement did amount to an impermissible interrogation. Nevertheless, all three judges agreed that the coercive effect of this interrogation had subsided by the time McKinney asked to speak with Delgreco the next morning. Therefore, they reasoned, the initiation exception articulated in Edwards applied and McKinney had validly waived his right to counsel before giving his statements. This decision did not reflect an unreasonable application of relevant Supreme Court precedent.
Nothwithstanding the Michigan court’s decision, it is by no means clear that
Delgreco’s death-penalty comment to McKinney qualified as the functional equivalent
of interrogation, as opposed to a type of “subtle compulsion” to cooperate that is not
foreclosed by and .
See Innis
,
Even if Delgreco impermissibly interrogated McKinney on the night of
November 20, 2004, the Michigan court reasonably held that the initiation exception to
Edwards
covered McKinney’s request to discuss his case with Delgreco and
Tomaszewski on the morning of November 21, 2004. There is no question that, on that
morning, McKinney waved Delgreco down and asked to talk about how his case was
going to proceed, signaling “a willingness and a desire for a generalized discussion about
the investigation.”
See Bradshaw
, 462 U.S. at 1045-46 (1983) (plurality opinion);
United States v. Williams
,
Nevertheless, McKinney contends that his request to talk to police was
precipitated by Delgreco’s death-penalty comment, which we construe as an improper
interrogation, and
Edwards
dictates that we therefore must presume that his subsequent
confession was involuntary. The Michigan court was not unreasonable to reject this
argument. As the Supreme Court has recently explained, “[t]he
Edwards
presumption
of involuntariness ensures that police will not take advantage of the mounting coercive
pressures of prolonged police custody by repeatedly attempting to question a suspect
who previously requested counsel until the suspect is badgered into submission.”
Maryland v. Shatzer
,
The facts of this case are markedly similar to those of
Hill
. An entire night
passed between Delgreco’s death-penalty comment and McKinney’s request to talk
about his case. Additionally, at the time of his November 20, 2004 arrest, McKinney
had already retained an attorney to represent him in this matter; that attorney had acted
on his behalf during his August 2004 arrest and interrogation. McKinney attempts to
distinguish his case by arguing that Delgreco’s remark about the death penalty was more
coercive than the improper interrogation to which the defendant in
Hill
was subject.
Thus, he asserts, it is unreasonable to conclude that McKinney no longer felt pressured
to talk the next morning. However, it is a close question whether Delgreco’s remark that
McKinney might be prosecuted federally, and might therefore be subject to the death
penalty, even amounts to interrogation. This uncertainty is reflected in the fact that,
even if McKinney felt some urge to confess after Delgreco’s comment, it was not so
strong as to induce him to do so immediately, therefore “reducing the likelihood that
[McKinney] was under any compulsion to confess.”
Holman v. Kemna
,
Accordingly, the Michigan court reasonably relied on
Hill
to conclude that any
coercive effect of Delgreco’s death-penalty comment had subsided by the time
McKinney asked to discuss his case, and did not invalidate his November 21,
2004 statements. For the reasons discussed by the district court, the record also supports
the conclusion that McKinney knowingly and voluntarily waived his rights
after asking to talk to Delgreco and Tomaszewski on November 21, 2004,
McKinney
,
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of McKinney’s petition for a writ of habeas corpus.
Notes
[1] The facts recounted here were either undisputed in the state court proceedings or found to be true by the Wayne County Circuit Court.
[2] ATF became involved in the investigation because Alexander’s had been a federally licensed arms dealer.
[3] McKinney points to two other facts that he claims support his position that Delgreco’s remark was unduly coercive: (1) that McKinney’s attorney had requested the Inkster Police Department to keep him informed of developments in McKinney’s case, and Delgreco failed to contact him with news of McKinney’s November 20, 2004 arrest; and (2) that Delgreco called Tomaszewski the night of November 20, 2004 and asked him to come to the police station the next morning because McKinney was in custody, presumably so they could interrogate McKinney. First, these facts were not found to be true or, in the case of the second claim, were explicitly rejected in the Michigan courts, and these factual determinations are entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1). Second, it is unclear how, even if these facts were true, they would effect the degree to which McKinney felt compelled to confess as a result of Delgreco’s death-penalty comment, as McKinney was unaware of either occurrence. Cf. Moran , 475 U.S. at 422 (“Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”).