Fleming v. Metrish

ROGERS, Circuit Judges. tective Lesneski he picked up that had 21,1999. hitchhiker on October The hitch- GILMAN, J., opinion delivered the hiker and proceeded to a store to court, ROGERS, J., joined. which purchase alcoholic beverages and then left CLAY, 537-58), J. (pp. delivered a to drink together. Fleming told Lesneski opinion separate concurring part and that he later dropped off the hitchhiker dissenting in part. somewhere near Sterling, Michigan. Lesneski showed Fleming a photograph of

OPINION a man and asked whether it depicted the GILMAN, RONALD LEE Circuit hitchhiker. did, After Fleming said that it Judge. Lesneski identified the man in photo as York.

Stephen Michael Fleming was convicted of second-degree murder and a related police subsequently obtained firearm offense. He was sentenced to life search warrant for residence in prison on charges. the two and other buildings on his farm in mid- then petitioned for postconviction re- November 1999. Upon arriving at Flem- lief, but was turned down at all levels of ing’s residence, Detective Lesneski said the state judiciary. He subsequently that Fleming was “very cooperative” and sought corpus habeas relief in federal even told the officers about illegal drugs court, arguing that the state trial court that were located on property. After by erred denying a motion to suppress finding his the drugs, Lesneski approached confession not allowing him to call Fleming to “read him rights” his a witness purportedly who would have aid- ask if Fleming speak would with him. ed his defense. The district court condi- Fleming refused to “questions answer tionally granted petition for a writ of about that fucking homicide or homosexual corpus. habeas For the reasons set activity,” forth and then said that he was “not below, we the judgment REVERSE of the going to be one guys you hear van’s opened nauseous. Lesneski jail for minutes, went in 60 about get that he could Fleming so for doors subse- Lesneski do.” he didn’t something asking couple for “a air. After some arrest Fleming under placed quently straight,” head “get [his] in minutes” put him drugs and illegal possessing murder. to York’s Fleming confessed car. The squad seat of the back Lesneski whether Fleming then asked Fleming was estimated detective re- gun. Lesneski had found 1:30 between 1:00 in the car placed they had. Fleming’s plied continued on A search p.m. to York’s relating for evidence

property he Leskneski maintains Detective death. un- interruption without Fleming speak let that he Lesneski said he was finished. later, Fleming til hour one

Approximately following: Fleming then told a narcot- to squad car from was taken Clayton, ... today, Robert once your rights Officer you to sit with I read ics van two roughly for to talk to me.... would sit want Fleming you and didn’t where Clayton you en- read by law Fleming required and Officer I am Now hours. you. My Detective protect talk” until I have to your rights. gaged “small and smiled. I need to do you the van and approached job protect is to Lesneski something “posi- to- you waking up I want Clayton surmised that. don’t Indeed, something you sorry for feeling happened. morrow tive” and were weapon say. murder had found the did or didn’t excited.” “quite therefore Fleming his to read proceeded Lesneski time. the second Miranda rights for Fleming that told Clayton next Officer that he understood acknowledged Fleming for him and good look things did not questioned then rights. Lesneski thing.” his right to do “maybe he needed response, death. Fleming about York’s hand, that testified, on the other Fleming more “far information” Fleming provided obviously a that “it’s Clayton told him surrounding the the circumstances you have about and that you,” “[i]f for good sign later, De- an hour Approximately killing. [ ] ... I would anything, a chance tape recorded Lesneski tective you get with recommend strongly Lesneski police station. at a confession Clayton denied my is advice.” program a third Miranda rights Fleming his read get with Fleming telling “[t]o ever The recording the statement. however, time before dispute, no There program.” jury at trial. for recording played later five minutes one between Fleming wished whether Clayton asked version a different Fleming offered Fleming Detective Lesneski. speak with inside the place that took the conversation thereafter, Shortly so. agreed According do Lesneski. van with Detective in the van. Clayton’s place Lesneski took the conver- initiated Lesneski Fleming, to have sation claimed that he did testified Detective Lesneski be [would] and that a weapon found begin an interro- or any questions not ask cooperate. interests to my best within He said entered van. gation when he told need to—he I did told me that He weep. Lesneski began to Fleming I that don’t say, what me to be careful out of view the van then moved sorry to be you don’t want sorry vicinity be were in who other officers for— said. you have haven’t something them to see not want Fleming did because words, but the exact I don’t remember moved the After Lesneski crying. him had—I before there was conversation hot and that he felt van, said right “Yeah, I didn’t come out say, I witnesses who said that York repu- had a done it.” tation for being violent. The trial court

refused, however, to allow Fleming to call background B. Procedural a witness allegedly who saw York rob a drug dealer the week before York was pretrial counsel filed a mo- killed. suppress tion to statements made to Detective Lesneski. April After exhausting his state-court reme- 2000, the trial court conducted so-called dies, Fleming sought a writ of habeas cor- hearing, Walker which under pus in court, federal district alleging that law “phase refers to a practice of motion being he was held in a prison in which all issues of admissibility of a violation of his rights. constitutional defendant’s statements resolved.” district conditionally granted Flem- People Ray, 431 Mich. 430 N.W.2d ing’s petition, holding that his Fifth (1988) (discussing People v. right Amendment to remain silent had Walker, 374 Mich. 132 N.W.2d 87 been violated and that he was denied his (1965)). Fleming’s counsel framed the is- constitutional mount defense sues at in hearing stake as follows: because trial court permit did not questions “[W]e have both regarding the Fleming to call a witness who purportedly to remain silent and the Fifth would have bolstered his self-defense Amendment, got also the right [sic] to an claim. timely This appeal followed. attorney. Both of things those were as- serted on of the behalf defendant.” The II. ANALYSIS prosecutor issue, contrast, framed the in A. Standard of review “nothing but Accepting voluntariness.” prosecutor’s issue, statement of the “In a habeas corpus appeal, we review held, the state trial court explain- without the district legal court’s conclusions de ing why, ... “[t]he issue is novo, but not will set aside its factual whether or not [the confession] was volun- findings they clearly unless are erroneous. tary.” The standard for reviewing state-court de- habeas, terminations contrast, on 2000, In May Fleming stood trial in the governed by the Antiterrorism and Effec- state court. He maintained that he had tive Death Penalty (AEDPA), Act self-defense, killed codified York in thinking that 2254(d).” § 28 Jackson, U.S.C. Ivory v. York was going to harm In support him. 284, (6th Cir.2007) (citation 291 claim, Fleming testified that York omitted). provides AEDPA that a federal bragged robbing drug about dealers and court that he had asked Fleming for “a couple

hundred buy dollars” to crack may cocaine. not grant a writ of habeas to a Fleming also claimed that York petitioner became custody respect refused, furious when he telling Fleming adjudicated on the merits in that “I am going your to kick fucking (1) teeth state court unless the state court’s right through your head.” He further al- decision contrary to, ‘was or involved an leged that shot York he twice before York application of, unreasonable clearly es- hit ground because York would not law, tablished Federal as determined by stop advancing toward him after Fleming (2) Supreme Court’ or the state stop. warned him to In addition to his court’s decision ‘was based on an unrea- own testimony, Fleming presented two sonable determination of the facts

525 that, voluntarily. Fleming responds vided presented evidence light cre- originally courts if the even proceedings.’ State to assess voluntari- hearings ated Walker (6th 846, Withrow, F.3d Taylor v. to use ness, profession [came] “the (ci- 2254(d)) Cir.2002) § (quoting 28 U.S.C. to that hearing’ to refer term[ ] Walker omitted). tation all issues in which practice motion phase of is considered decision A state-court statements admissibility of a defendant’s federal clearly established ... “contrary to Ray, v. People resolved.” See are different, “diametrically if the two law” (1988). N.W.2d Mich. nature, or mutual or opposite character court’s in the district find no error We 529 U.S. Taylor, v. ly opposed.” Williams response Fleming’s persuasive adoption of L.Ed.2d 389 120 S.Ct. hearing. scope of a Walker regarding omitted). (internal (2000) quotation marks Moreover, the state’s concession “unreason be deemed an Alternatively, to in state “had been raised issue Miranda clearly established ... application able de- finding procedural negates court” on the law,” state-court decision Federal merits of turn to the therefore fault. We unreasonable,” “objectively must be merits Miranda Amendment Fifth Id. at incorrect. simply erroneous claim. 1495. The state be correct presumed to fact are findings of Admissibility confes- and con by clear they are rebutted unless sion Johnson, 474 v. Benge vincing evidence. Arizona, Miranda Under Cir.2007). 236, 241 473-74, 16 L.Ed.2d S.Ct. must (1966), officers law enforcement violation Amendment Alleged Fifth B. who invokes suspect questioning cease default 1. Procedural have an silent or right to remain mean that the does not This attorney present. court held The district in- unreasonably suspect obtained after a Michigan Court statements necessarily inadmissi- in con precedent right Supreme Court vokes applied admissibility Instead, “the Fifth Amendment all ble in cases. cluding that person after the was not violated silent of statements obtained to remain silent de- murder. to remain custody of York’s has decided investigation during the however, to cut off matter, his ‘right the state ... on pends whether a threshold As ” honored.’ not ‘scrupulously should was questioning’ district court that the argues 96, 104, 96 Mosley, the 423 U.S. the issue because have even reached (1975). But the 46 L.Ed.2d proeedurally defaulted. was same counsel, the district according to state’s the district disagree We argument court, “acknowledged oral Ap- Michigan Court conclusion that in state had been raised the issue [that] Mosley. The unreasonably applied peals court.” on its de- analysis turned district court’s Clayton “interro- that Officer termination argues The state nevertheless custody. Fleming while he was gated” properly not issue was Amendment Fifth issue of address will therefore hearing We pretrial Walker during the raised before interrogation was an state, there sole whether because, according to the Appeals’s Michigan Court turning to address hearings is of such purpose Mosley. application pro- confession was particular whether a. Whether interroga- I talking back and forth with [a by ted police police second stating officer] that I fre- quent this area patrol while on [that Innis, In Rhode Island v. because a school for handicapped chil- (1980), L.Ed.2d 297 dren is located nearby,] there’s a lot of Supreme Court defined the term “in handicapped running children around in terrogation” in the Miranda context as area, and God forbid one of them follows: might find a weapon with shells and “Interrogation,” as conceptualized in the they might hurt themselves. opinion, Miranda must reflect a meas- (second Id. at 100 S.Ct. 1682 alter- ure of compulsion above beyond ation in original). inherent in custody itself. The second officer “apparently shared We conclude that the Miranda safe- concern,” his fellow officer’s indicating that guards come play into whenever per- he “more or less concurred with [the first son in custody subjected to either officer] that was a safety factor and that express questioning or its functional should, we you know, continue to search equivalent. That is to say, the term for the weapon try to find it.” Id. at “interrogation” under Miranda refers 295, 100 S.Ct. 1682. Sometime during the to express questioning, but also discussion, course of this Innis “interrupt- words or actions on part conversation, ed the stating that the offi- (other the police than normally those cers should turn the car so he around attendant to arrest and custody) that the could show them where gun was locat- police should know are reasonably likely ed.... respondent then led elicit incriminating response from field, to a nearby pointed where he out the suspect.... But, since shotgun under some rocks the side of surely cannot be held accountable for the road.” Id. the unforeseeable results of their words After considering facts, the above actions, the definition of interrogation Supreme Court held that the officers’ con- can extend only to words or actions on versation was not reasonably likely to elicit part the police that they officers an incriminating response. Id. at 100 should have known were reasonably S.Ct. 1682. The court noted that nothing likely to elicit an incriminating response. in the record that suspect indicated the 300-02, Id. at “peculiarly susceptible S.Ct. 1682 (emphasis in to an appeal to original). conscience,” Police placed officers Innis un- further elaborated arrest, der him that advised of his Miranda

rights, and took police him to a station [t]he case thus whether, boils down to patrol Innis, car. U.S. at the context of a conversation, brief the S.Ct. 1682. respondent “The stated that officers should have known that the re- he understood [his rights Miranda] spondent would suddenly be moved to wanted to speak with a lawyer.” Id. at make a self-incriminating response. 294, 100 S.Ct. car, 1682. While in the Given the fact that the entire conversa- however, the began officers speak to to tion appears to have consisted no each other about the murder weapon, more than a remarks, few off hand we they which yet not located. Id. at say cannot that the officers should have 100 S.Ct. 1682. One the officers testi- known that it was reasonably likely that fied as follows: [the suspect] would respond. so This is carried on police this a case “where on a police carried not a case where of the presence in the lengthy harangue presence in the harangue lengthy 1682. suspect.” See id. support the record Nor does suspect. moreover, evidence, indicating that, under is no There contention respondent’s to susceptible circumstances, “peculiarly com- the officers’ In- It id. to his conscience.” See appeal “evocative.” an particularly ments were Innis, therefore, Clayton’s view, respon- stead, just Officer as is our to a “brief conversation” subjected comments involved was not dent than “a few nothing should more including or actions words reasonably likely to “particu- that were not known have were off hand remarks” ” from incriminating response an See id. larly ‘evocative.’ elicit him. arguably dis- recognize that Innis We 302-03, 100 1682. S.Ct. Id. at the conver- on the basis that tinguishable po- two us, occurred between in Innis sation In the case before toward officers, not directed similarly concluded and was lice 294-95, 100 not id. at himself. See suspect remarks did Clayton’s brief Officer re- Clayton’s brief Officer interrogation within an constitute contrast, were, clearly aimed at Flem- Accepting marks Miranda. meaning of true, might sig- be a distinction Fleming. as Such the events account of ing’s Clay- remarks if an officer’s brief Officer nificant court characterized “(i) into, “lengthy ha- example, a mild admonition morphed as comments ton’s because, being equal, things other ‘get rangue” with thing’ ‘do the a sus- (ii) toward as to comments directed inquiry an whether extended program’; incrimina- likely lead to elicit an talk to the are more pect [Fleming] now wished previ- has But this The court stated: ting response. investigating officer.” challenge to rejected a constitutional ously repeated (i), given the defendant’s As to in an suspect aimed at a cursory comments of- in the instant denials involvement States See United analogous context. familiarity fense, general well as his Cir.2000) Hurst, con- system, we justice by [a that “the mere statement (holding ‘rea- comments were that these vinced got ‘we’ve official] law-enforcement incriminating an sonably likely to elicit in con- viewed you,’ on good information an necessary to constitute response,’ as sug- element text, compulsive no contains (ii), have regard we interrogation. un- violation Amendment Fifth gesting a appropriate that it is recognized also circumstances.”). der the individual new information present as- intelligent ‘an informed so that both strong arguments There are may be options her of sessment’ his Clayton’s construing Officer against made. Indeed, interrogation. as an comments one to be a direct Fleming’s appeal were unreasonable about nothing findWe novo, exists possibility de of reviewed application court’s Michigan appellate agreed have might that we in In- set forth interrogation standard court that a federal But the fact position. reasonably supports The record nis. of Michigan Court disagree with might “a subject to was not that finding not Innis does of application Appeals’s beyond above compulsion measure of Michigan Innis, conclusion justify the See custody itself.” inherent in Supreme unreasonably applied court 300, 1682. Nor S.Ct. 100 446 U.S. 528 Court’s decision. See 96, v. Visciott 321, U.S. 96 S.Ct. 46 L.Ed.2d 313 Woodford

i, 19, 24-25, 357, 123 (1975), and, U.S. S.Ct. turn, its conclusion that the (2002) (holding L.Ed.2d 279 that “a federal Michigan Court of Appeals unreasonably may habeas court issue the writ applied sim that case. In Mosley, the Su- ply because that court concludes its in preme Court discussed the circumstances dependent judgment the state-court under which a officer may resume decision applied Supreme [a Court questioning case] a suspect who previously has incorrectly”); see also v. War exercised to remain silent under Hereford ren, 523, Cir.2008) (“Our Miranda. that, The Court held when a task is not to determine whether the state defendant invokes the right to remain si- outcome, the correct lent, reached but the officers have the duty to immedi- rather to determine whether ately cease questioning under Miranda. application clearly established federal But the sought Court to avoid two extreme unreasonable&emdash;-‘a law is objectively sub interpretations of that obligation: ”) stantially higher (quoting threshold.’ permit To the continuation of custodial Landrigan, 465, Schriro v. interrogation after a momentary cessa- (2007)). S.Ct. 167 L.Ed.2d 836 clearly tion would purposes frustrate the We conclude that Michigan Court of by Miranda allowing repeated rounds Appeals’s regarding determination lack of questioning to undermine will of interrogation Clayton Officer person being questioned. At the not an application “unreasonable of ... other extreme, a blanket prohibition clearly established Federal law.” See against taking of voluntary state- Taylor, 362, 376, Williams ments or a permanent immunity from (2000). 146 L.Ed.2d 389 further interrogation, regardless of the circumstances, would transform the Mi- Finally, we note that Fleming disputed randa safeguards into wholly irrational Detective Lesneski’s account of the in-van obstacles to legitimate police investiga- interview place took after Officer activity, tive deprive suspects of an Clayton’s remarks. Although Lesneski opportunity to make informed and intel- claimed that he said nothing material ligent assessments of their interests. Fleming when van, Lesneski entered the asserts encouraged Lesneski Mosley, 423 U.S. at 96 S.Ct. 321. him to cooperate. The state trial court Seeking to extremes, avoid these the Court failed to resolve this dispute. factual But adopted the following standard: “[T]he ad- even if Fleming’s version the events is missibility of statements obtained after the true, assumed to be would we still not person in custody has decided remain conclude Ap- depends silent under Miranda on whether peals unreasonably applied Mosley. We ‘right to cut off questioning’ ‘scru- will explain why in the course of the dis- pulously honored.’” Id. at cussion immediately below. Supreme Court did not adopt a

b. Whether the Court of bright-line rule for determining whether Appeals unreasonably applied law enforcement officials have satisfied Mosley this standard. But the Court did provide

The district court’s finding guidance that Of on the by issue explaining that ficer Clayton interrogated Fleming fueled the police “fail[ ] honor a decision of a analysis its of Michigan v. Mosley, 423 person in custody to cut off questioning,

529 a Fleming second “questioning” inter- the before refusing to discontinue either (even the though murder about the in time by persisting or request upon rogation Fleming by Offi- of questioning purported his resis- to wear down repeated efforts later). three hours occurred Clayton cer mind.” Id. change his him and make tance not re- added). Fleming that did (brackets It also observed 321 96 S.Ct. warnings before fresh Miranda ceive police the finding that a favoring Factors Fleming comment that made his Clayton defendant’s honored a scrupulously have before thing,” or the ... “do should police the “[1] where rights include “get Fleming to told Clayton allegedly re- interrogation, the immediately ceased sumed questioning after ^[2] the pas- with the program” (which assumes, con- of determination reasonable trary to the and the of time period significant a sage of these that Appeals, of Court warnings, set fresh provision ^[3] restricted second interrogation to a comments constituted “interrogation” accompanied have been that should subject of the not been that crime noted The district court warnings). new 96 S.Ct. Id. at interrogation.” earlier concerned interrogation added). purported that the (brackets Mosley “neither subject of the crime that was the same predominant factor elevates one (a indeed factor that interrogation enumer- earlier that the suggests nor dispositive appli- Mosley). Its Fleming under exhaustive, favors instead but are factors ated court led district cation of these factors on whether to focus courts directs Michigan Court conclude that com- in a manner obtained confession ‘was Mosley. unreasonably applied Appeals of the Con- requirements patible with the ” Schwensow, v. States United stitution.’ Mosley, under conducting analysis its In Cir.1998) (quoting that apparently assumed court the district 104, 112, Fenton, Miller encourage did not Lesneski Detective (1985)). 88 L.Ed.2d court’s The district cooperate. Fleming no in fact contains discussion opinion Fleming’s confession holding Nor did comments. alleged Lesneski’s Mosley, under admissible dispute the factual to resolve Fleming seek there emphasized matter. on the hearing by requesting a police indicating no evidence 2254(e) (stating the condi- § See 28 U.S.C. [Fleming’s] re- down “wear endeavored to per- courts federal tions under which mind.” him change make sistance disputes hearings on factual hold mitted to See proceedings). in state-court habeas receiv- Fleming confessed before Although warnings, Miranda fresh set of ing a Officer assuming that In addition to premised conclusion was Michigan court’s a second Fleming interrogated Clayton not did police finding that its upon confessed, voluntarily time before time second interrogate actually not en- Lesneski did that Detective confess. voluntarily chose to he before district cooperate, the courage Fleming why the explain failed to court disagreed. court But district the offi- ultimate conclusion—that which opinion, state court’s to the contrast Fleming’s right honored scrupulously cers did officers emphasized no evi- there was where remain silent resis- down” nothing to “wear down” tried to “wear they other dence emphasized tance, the district contrary to resistance —was did district court Mosley factors. noted, “Mosley previously Mosley. As enough long waited think 530

neither elevates one factor predomi- decision by reached that court. They in- dispositive nant or suggests nor stead discuss the analytically prior ques- exhaustive, enumerated factors are but in- tion of whether a federal court is permit- stead directs courts to focus on whether ted to hear an issue in place the first ‘was obtained in a confession manner under the procedural doctrine of default. compatible requirements with the of the See, e.g., Mitchell, Jells v. 478, 538 F.3d ” Schwensow, Constitution.’ 151 (6th F.3d at Cir.2008) 511 (holding that a claim not Miller, (quoting 112, 474 U.S. at 106 raised before the Ohio Court of Appeals 445). Even concedes that was proeedurally defaulted even though provide per does not se rule for the Ohio Supreme Court reviewed the determining whether the have suffi- plain claim for error on direct appeal); ciently suspect’s honored exercise of the. Lundgren Mitchell, v. 754, 440 F.3d silent, remain and that Mosley (6th Cir.2006) (holding that “a state court’s require does not in every case the passage plain error analysis does not save a peti- time, of a length fixed provision of of tioner procedural from default”); Seymour fresh Miranda warnings, or a change of Walker, (6th v. Cir.2000) 224 F.3d subject. (holding that habeas petitioners cannot re- surrect proeedurally The fact that the defaulted district court reached a claims on the sole contrary basis that a outcome after state emphasizing ap- court has differ- plied plain-error ent Mosley factors than those review to by relied on the issue on direct appeal). Court of We of agree does not course justify suffice to these granting cases to of a the extent they habeas stand petition AEDPA, for pursuant to especially in well-established rule that a state light application of our court’s conclusion plain-error state review court’s not regarding determination does revive a petitioner’s a lack habeas other- interrogation by Clayton proeedurally wise Officer defaulted was not claim on collat- eral review. objectively Hereford, disagree unreasonable. See But we with our sum, colleague’s 536 F.3d at view despite they control not only closeness of the question merits, ability on we address habeas petitioner’s opinion claim, that the Michigan but appropriate also the Appeals’s standard of decision on this review apply issue was not once we have determined application Miranda, unreasonable the claim is reviewable on Innis, Mosley. the merits. Our dissenting colleague, on the other Second, question of whether a claim hand, believes that Court of be should on addressed collateral review

Appeals’s plain-error review of the claim is the judicially under created doctrine of entitled AEDPA deference because procedural default is independent of the such a review does not amount to consider- question of Congress whether requires ation ‘on the merits’ purposes of 28 deference pursuant to AEDPA. This 2254(d). § U.S.C. We respectfully dis- court declines to review proeedurally de- agree for two reasons. faulted claims out of respect for state- First, none of the cases by cited court enforcement of procedural dissent question decide the whether Carter, rules. Clinkscale plain reviewed for error Cir.2004) a state (citing Coleman v. court dispenses with obligation our to ap- Thompson, ply AEDPA deference to the merits of the (1991)) L.Ed.2d 640 (observing adjudica- court’s to a state PA deference procedural-default the of purposes the that analysis its if court “confined tion the state comity and feder- of concerns include rule to examine law” or failed AED- ... to state alism). Congress enacted Similarly, Id. Both law. comity, applicable constitutional of principles further the PA “to focus on the Danner therefore Maples v. Williams federalism.” finality, and court 1479, by the state reasoning provided 436, legal 529 U.S. Taylor, wheth- disposing of a claim determine (2000). in But the fact L.Ed.2d 435 the standard of applies' AEDPA er proce- the both concerns motivate similar —not claim is viewed. through which that review does and AEDPA doctrine dural-default AEDPA defer- clearly imply And both simply the latter ignore us to permit not con- if the state court apply ence would is deemed doctrine the former because of an issue elaboration ducts reasoned Instead, that this we believe inapplicable. under federal law. reasonably clear is jurisprudence consideration state-court’s when a about Benge in v. John This court’s decision on “adjudicated claim is to be considered (6th Cir.2007), son, not to 474 F.3d 236 triggering purpose the the merits” Benge, jury instruction contrary. U.S.C. See 28 under AEDPA. review our law, under state erroneous was held be 2254(d). § so, by Supreme the Ohio plainly not but that basis the at 245-46. On Id. Maples in Ste- Court. v. This court’s decisions to reverse court declined Cir.2003), appellate state Dan F.3d 433 gall, 340 The habeas (6th Cir.2006), conviction. Id. the defendant’s Motley, 448 F.8d ner v. review, claimed, on collateral Maples, petitioner point. on this are instructive constitutionally inef his counsel was Supreme Court’s court followed this object to the instruc 510, 123 failing to Smith, fective for v. Wiggins in lead court at 246. This during trial. Id. (2003), tion 2527, 156 in hold L.Ed.2d claim ineffective-assistance reviewed the that, that no state to the extent ing of whether question novo because de question, the claim decided erroneous, plainly jury instruction subject to de novo review. be would Supreme Court by the Ohio defer as determined AEDPA F.3d at 437. Maples, 340 law, as not serve purely under could Maples inappropriate deemed ence was in entirely different for the de a substitute simply Michigan courts because trial petitioner’s quiry of whether peti the merits to evaluate clined constitutionally ineffec had been counsel ineffective-assistance-of- federal tioner’s the instruction 435-36; failing object tive for at see id. claim at all. See counsel Benge But does id. place. first See No. Maples, People also demonstrate, suggests, Nov.4, dissent not (Mich.Ct.App. *1 WL plain- application the state court’s Mich. Maples, 459 1997), People v. aff'd, the claim (1998). per se insulates error review N.W.2d 738 Instead, deference. from AEDPA any such evalua- In the total absence because Benge to defer in court declined speci- Maples tion, was no need there a “reasoned provide court did the state suf- analysis would form of precise fy ineffective-as the federal adjudication” of adjudication on to constitute fice id. issue. See claim at sistance-of-counsel See under AEDPA. of a claim merits Danner, 448 437. But F.3d at Maples, 340 Benge or like before us is not clues, indicat- case further provides question There is little Maples. AED- apply will not ing that federal courts Fleming’s Fifth Amendment claim was Fleming’s Fifth Amendment claim at the “adjudicated on the merits” for AEDPA state level.

purposes by Michigan the Court of Ap-

peals. We note as initial matter that The heart of the disagreement be ap- has never contested AEDPA’s tween ourselves and our dissenting col plicability. This issue has instead been league thus boils down to whether feder by sponte dissenting raised sua our col- al constitutional claim by reviewed a state Moreover, league. Michigan Court of court “plain for error” can be considered Appeals analyzed Fleming’s claim pursu- “adjudicated on the merits” for pur ant Mosley’s “scrupulously honored” pose of receiving deference under AEDPA. standard, amply by as indicated the above To our knowledge, authority there is no Michigan discussion of the opinion. court’s squarely on point key decides this plain-error Its use of the standard of re- question. however, We persuaded, are view, opposed clearly to the erroneous that we acting contrary would be to Con standards, or de novo simply made rever- gress’s intent to have AEDPA “further the sal of the state trial judgment less principles of comity, finality, and federal likely, but did not Michigan cause the ism,” Williams, 529 U.S. at bypass Court of the merits of 1479, if simply we ignored the Michigan thereby trigger- avoid Court of Appeals’s evaluation of Fleming’s ing AEDPA deference. Fifth Amendment claim reconsidering persuaded by Nor are we our dissenting sum, the issue de novo. we see no colleague’s distinction between federal con- inherent applying contradiction in AEDPA stitutional that a “merely issues state court deference to Ap Court of addresses” on the merits and those that peals’s reasoning on the merits of Flem “ (Dis- ‘adjudicated’ on the merits.” ing’s claim despite our disagreement with 538) senting Op. p. appears This to us to ruling its that the issue was proeedurally be a distinction without a difference. See defaulted. The state court’s substantive Yukins, (6th Dando v. reasoning does not simply vanish along Cir.2006) (“Where a state court fails to with its erroneous procedural-default de law, § address federal apply, does not termination. Nor does AEDPA. novo,” the decision is reviewed de We therefore believe that the dissent’s clearly implies which that AEDPA defer- de novo analysis of Fleming’s Fifth ence would applied have if the state court Amendment claim inappropriate, claim). and we Furthermore, had addressed the disagree further with its conclusory state- step first Court of ments to the effect that Appeals’s Clayton’s Officer plain-error review essentially re- (or quired brief comments addressing even whether an Detective error had Lesne- ski’s which, alleged inquiry case, encouragement occurred—an cooperate) accomplished persistent could not be “demonstrate a without first and not-so-sub- tle adjudicating persuade the merits of effort to claim. to discuss 554) This is not a ease where the homicide.” (Dissenting Op. state court simply assumed, without deciding, facts before us are simply far removed there was a constitutional error from Thompkins and then cases like Berghuis, proceeded to determine that Cir.2008), the error 547 F.3d 572 where the not plain. To contrary, case before were found to have engaged in an us is plain-error one where review itself interrogation that failed to scrupulously played practical no role in the resolution of honor suspect’s rights. Miranda See expressly re- The state trial ness. (granting habeas 586-88 id. Fleming’s Sixth fused to consider questioned police officers where relating to Amendment claims Fourteenth nearly three continuously petitioner mount defense because interrogation was hours, and where to be one of state one-sided”). the issue already considered We have very “very, review de evidentiary law. We therefore Clayton’s comments why Officer discussed Fleming’s right-to-present-a-defense novo to that characteriza- close nowhere came Motley, Danner v. claim. See tion. Cir.2006) de 372, (utilizing the alleged comments Lesneski’s Detective where the state novo standard of review Mosley, inconsistent similarly not peti- the habeas failed to court consider no set formula provides that a case claim). constitutional tioner’s scru- police have determining whether the re- suspect’s right to a pulously honored federal court 1. Relevant state and Mosley, 423 U.S. at silent. See main proceedings police, Mosley permits 321. trial, evidence Fleming presented At brief, to his Fleming acknowledges York self defense. showing that he killed so suspect to a new information present Fleming to show Michigan required law and informed able “to make he is that reasonably believed honestly he and that interests.” [his] intelligent assessments bodily of serious danger he was in that 321. Detective id. at See of York. See hands harm or death precisely did alleged comments Lesneski’s 482, 456 Heflin, 434 Mich. People v. Fleming to he disclosed this: (1990). Fleming testified N.W.2d weapon a on had discovered kill him going to he believed York was to Fleming permitted which premises, bragged previously York had because True, Lesneski’s his situation. reassess He also drug dealers. robbing about to suggestion a comments included alleged stated that York witnesses who called two ac- suggestion was But this “cooperate.” reputation for violence. according to Flem- by again, companied — be warning “to ing himself—a Fowler as a Fleming further tendered said, a caution he about what careful” allegedly saw Fowler witness because which he would say anything not to about the week dealer rob a crack cocaine York complete “sorry.” No be doubt Michigan trial murder. The York’s before warnings of the Miranda recitation fresh testify Fowler to court refused allow to these short- preferable would have been the evidence to the court deemed because of this But in the context hand reminders. that, irrelevant, nearly irrelevant or so be Flem- case, dispute no there is where Michigan Rules of under Rule 403 rights, fully his Miranda ing understood of such Evidence, effect prejudicial the view bolsters cautionary language such pro- outweighed its substantially evidence hon- scrupulously rights those were appeal, On bative value. Mosley. under ored judgment of affirmed agreed because the state trial court Fleming’s constitutional C. witness testimony of the excluded present a defense court appellate state likely irrelevant. The testimony would held that witness’s alternative Fleming’s turn to nowWe self- not have been relevant exclusion of regarding the claim habeas evidence theory “[i]f because defense wit- testimony as defense Fowler’s Scott to show the defendant’s state of mind Merits used support apprehensions, defen Fleming argues that have known of dant must the evidence.” trial court erred excluding Fowler’s tes Harris, People v. See Mich. 583 timony on the relevancy. basis of And (1998). N.W.2d 683-84 But there was even if the court did not err as a matter no evidence the record that law, Fleming maintains that the ex alleged apprehension of York was based on clusion nonetheless violated his constitu anyone’s having witnessed York a drug rob tional right present witnesses in his own fact, past. dealer in the testi defense. The district agreed. We that, incident, at the time of the fied he did respectfully disagree. anything propensity not know about York’s for violence. The state court appellate Constitution guarantees “[T]he therefore found that “to whatever extent criminal meaningful defendants a opportu [Fleming] knowledge had prior [York’s] nity present defense, to a complete includ conduct, it was not based whatsoever on ing right present to relevant evidence the excluded evidence.” Such evidence subject ... to reasonable restrictions.” thus excluded it was because was deemed Stovall, (6th Varner 491, v. 500 F.3d establishing irrelevant to Fleming’s state Cir.2007) (citations and quotation internal of mind before York’s death. omitted) (alterations marks in original). court, however, This has also stated that To the extent that the witness’s testimo- is “[i]t well settled that the Constitution ny served to establish evidence character guarantee does not a defendant the oppor violence, propensity York’s tunity present to any evidence he desires.”

Michigan Appeals Court of also held that Bell, Alley 380, v. Cir. testimony such would have been al- 2002). Indeed, “[o]nly if an evidentiary lowed in the “testimony form of as to ruling is egregious so that it results in a reputation byor testimony in the form of denial of fundamental fairness it ... 404(a)(2) [does] an opinion.” See Mich. R. Evid. violate process due 405(a). and thus warrant habe- appellate The state court not- Parker, as relief.” Baze v. ed, moreover, that Fleming already had (6th Cir.2004) (internal quotation presented the testimony of two witnesses omitted) (alterations marks in original). regarding reputation York’s for violence. law, however, Issues of state ordinarily led This Court of not properly subjected to collateral review. conclude that the trial court had not McGuire, See 62, 67-68, Estelle v. 502 U.S. abused its discretion. (1991) (“[I]t 112 S.Ct. 116 L.Ed.2d 385 The federal district court took issue with province is not the of a federal habeas the Michigan Appeals’s Court of “failure court to reexamine state-court determina ... to recognize the Constitutional dimen- tions on questions. state-law In conducting error,” sion of the [trial and con- court’s] review, habeas a federal court is limited to sidered this purported error to be “an deciding whether a conviction violated unreasonable application of federal law.” Constitution, laws, or treaties of the Unit Illinois, Quoting Taylor States.”). ed (1988), 98 L.Ed.2d 798 the court observed that argues “[t]he that trial testimony offer ... grounded in the in finding that erred Fowler’s testi- Sixth Amendment though even it is not mony was irrelevant and duplicative. As expressly many described in so words.” to relevancy, Fowler would have testified present a right to “[t]he proposition rob York witnessed previously that he defense is so fundamental intend- defense testimony was This drug dealer. allowed even sometimes be account evidence must specific Fleming’s to bolster ed an evidentia- technically violates immediately though he shot before happened what accuracy of assuming more jury ry if rule.” Even particular, York. sup- believe, neither ease proposition, to Fowler’s testimo- due broad likely to trial then Fleming, to rob conclusion ports York tried ny, that his constitutional ruling in turn believed violated jury might have bodily risk of a serious rights. feared Fowl- York. Absent the hands of injury at Chambers, per- trial court the state however, jury more testimony, er’s defendant, was accused who mitted the made Fleming just likely to conclude murder, someone who call as a witness testimony is thing. Fowler’s the whole up but later to the murder initially confessed arguably relevant therefore claimed his own confession repudiated claim. self-defense 291, 93 S.Ct. 1038. Id. at to have an alibi. that Fowler’s tes- Fleming also contends opportu- was “denied But the defendant testimony of duplicate timony did damning re- nity subject witness’s] [the York testified that witnesses who the two to cross-examination” and alibi pudiation Instead, Fowler’s prone to violence. application rigid court’s the state based on added arguably have testimony would pre- that “voucher rule” the so-called of spe- of the Fleming’s account credibility to the credi- impeaching party a from vents York’s death. leading up to cific events at 93 witness. Id. bility of own his Michigan Court Fleming contends refused to trial also The S.Ct. 1038. excluding erred therefore testify they that to allow other witnesses testimony. Fowler’s to the else confess heard someone concluded the court murder because these plausibility the Despite initial inadmissible testimony would be such issues essentially address arguments, they 298, 1038. These at 93 hearsay. Id. S.Ct. not as evidentiary law that are to consti- were held together factors two review. Es- subject to collateral See such re- corpus error on habeas tute reversible 67-68, 112 475. telle, S.Ct. 502 U.S. at 302, S.Ct. 1038. view. Id. battle uphill faces an Fleming therefore evidentiary concerns characterizing eyewit- an Washington v. Texas involved particular, In in nature. constitutional as a excluded shooting who was ness to a trial the state Fleming must show allegedly he was witness because defense egre- evidentiary ruling was “so court’s shooting. the accomplice to same an Fleming a effectively that it denied gious” unconsti- that this concluding witness Baze, 324. 371 F.3d at trial. See fair excluded, di- Supreme tutionally burden. has not met this nature attention to the rected its to court used the state evidentiary rule contention that of his support witness: exclude the raises evidentiary ruling trial alleged accom- disqualifying The concerns, two rule Fleming cites constitutional behalf of the testifying on plice from Mississippi, 410 U.S. v. cases: Chambers on defended (1973), even cannot be 1038, defendant L.Ed.2d 297 93 S.Ct. rationally apart sets that it Texas, ground 388 U.S. Washington v. particularly are (1967). who group persons Flem- L.Ed.2d absurdity The perjury. likely to commit support cases these ing argues amply rule is demonstrated Harmless error exceptions that have been made to it. Moreover, if even the state trial court’s ruling had violated con Washington, 388 U.S. 87 S.Ct. 1920. defense, right present stitutional to result, Supreme As a Court held constitutional error would be harmless. ... petitioner right was denied his To determine whether an error is harmless process compulsory have obtain- review, on collateral “we ask whether the ing witnesses in his favor because the error injurious ‘had substantial and [a] ef him arbitrarily State denied to fect or in determining jury’s influence ” put on the stand a witness who was Warren, verdict.’ Hereford mentally physically capable of testi- (6th Cir.2008) 523, 528 (quoting Brecht v. fying personally that he had Abrahamson, events 619, 623, observed, testimony 1710, 123 (1993)). and whose would L.Ed.2d 353 have been relevant and material to the The district court held that purport- defense. edly unconstitutional exclusion of Fowler’s testimony was not harmless because the Id. at 87 S.Ct. 1920. prosecutor exclusion “allowed the argue evidentiary rulings in Chambers Fleming’s] testimony [that of fear of Scott and Washington simply par not on York was not corroborated.” respect- We with the exclusion at issue here. Unlike fully disagree with the district court’s anal- witnesses who were excluded Cham- ysis because there is no indication that bers, prepared testify Fowler was not barring Fowler inju- had substantial and that he had overheard claiming someone jury’s rious effect on the finding that killing. Fleming have seen York’s Nor was Fowler guilty. was As the Michigan eyewitness Court of himself an at the scene. Final- observed: ly, the Michigan rely trial court did not on testimony [D]efendant’s damaging was an evidentiary irrationally self-defense, rule that ex- to his claim of suggesting that, cludes an even if category proposed testimony entire of witnesses excluded, erroneously defendants, from the error testifying on behalf of harmless. For example, in defendant tes- Washington. tified that he an opportunity Fleming might a stronger have had “probably drive sixty yards” away from if, claim for example, he had been com- victim, turning before around to at- pletely presenting any barred from wit- tempt pacify Moreover, the victim. nesses to corroborate his contention that testimony[ defendant[’s] established ] York was known to be violent. But that is that approached the victim him menac- not the case here. has failed to ingly “steady walk”; however, at a de- provide any persuasive why reason fendant testified that he had sufficient evidentiary trial ruling time shotgun to retrieve his from his was “so egregious in results a denial truck, load the shotgun with bullets that of fundamental ... and fairness thus war- pocket, were his and then warn the Baze, ranties] habeas relief.” See victim stop least twice before at 324. The district court therefore erred shooting Although him. defendant in granting Fleming’s petition for a writ of claimed that the shooting was “self-de- corpus habeas on a purported fense,” the basis of he testified that he shot the vic- violation of right present Further, a defense. tim twice. defendant testified felony the commission of a during firearm armed with was not that the victim (1) that: the trial court grounds on the the defen- approached he weapons as under have excluded his confession nevertheless, testified should dant; defendant Mosley, face and victim the he shot the (1975), because the 46 L.Ed.2d defendant’s testi- light head. honor” his police “scrupulously failed to there was an am- mony, we believe right of his Fifth Amendment to conclude that assertion jury ple basis for (2) self-incrimination; trial and deadly against was un- force use defendant’s of certain witness testi- reasonable, the victim’s court’s exclusion regardless him his fundamental mony or de- denied robbing crack dealers history of The district court con- present a defense. that those stories honest belief fendant’s relief on both ditionally granted habeas were true. claims. simply failed to con- The district majority’s in the hold- Appeals’s Although I concur Michigan Court

sider improperly analysis that the district court analysis, ing harmless-error Fleming habeas relief on his granted would elaborate persuasive. find We we of Fowler’s testi- only regarding was York the exclusion detail. Not on one from the ma- twice, respectfully entered I dissent mony, of those shots but one shot regarding Fleming’s A jority’s of his head. conclusion skull in the back York’s considered con- easily conclude claim. When jury could reasonable text, exhortations in the back of the head the numerous shooting someone “get with encouraging Fleming to police a claim of self defense. is inconsistent with program” “cooperate” as a rose above sum, excluding if Fowler even time, error, At the it was a of mere admonition. a constitutional the level witness was in a vehi- no indica- was handcuffed one because there is harmless cle, celebrating were officers error had substantial tion that the weapon right determining discovery of the murder or influence injurious effect him, allegedly shouting and in front of jury’s verdict. Although Flem- in his direction. pointing III. CONCLUSION did not want to clear that he ing made homicide, related to the questions answer above, the reasons set forth For all of re- record indicates judgment of the dis- we REVERSE right him to “do the pressured peatedly REMAND the case with and trict court program,” com- “get and with thing” Fleming’s petition for deny to instructions wearing down plainly aimed ments corpus. of habeas a writ In questioning. to Fleming’s resistance words, prior invo- despite Fleming’s other part CLAY, Judge, concurring Circuit silent, the to remain cation of his dissenting part. “scrupulous- at the scene failed officers Metrish, of Linda Warden Respondent question- cut decision to off ly honor” his Facility, Kinross Correctional Michigan’s ing. judgment court’s the district appeals from Fleming’s ap- Stephen granting Petitioner I. corpus under for a writ of habeas plication there acknowledging that Although petition, habeas § 2254. 28 U.S.C. sides, the ma- on both “strong arguments” for sec- challenges his convictions Fleming ruling the district court’s jority reverses possession murder ond-degree Fleming’s Mosley framework, claim respect plain-error Under the primarily based on its conclusion that the required only to show not required deferential standard of review un- police failed to honor his decision to re terms, By very AEDPA applies. der its silent, main but also that the trial court’s however, applies only AEDPA “any .“plain” error was and affected his “sub adjudicated claim that was on the merits Id.; rights.” stantial see also Cristini v. proceedings.” State court 28 U.S.C. McKee, (6th Cir.2008) 526 F.3d 2254(d) added); § (emphasis see Danner v. (describing petitioner’s burden under the (6th Cir.2006). Motley, 448 standard). plain-error Regardless requires only AEDPA thus deference Michigan whether the Court of where the defendant’s federal claim was explored aspects some of the merits of merits, not, “adjudicated” on the more Fleming’s Mosley claim in conducting its broadly speaking, whenever a state court inquiry, it is undeniable that the court did or, merely parlance in the addresses — consider the merits of claim majority, “evaluates” —the merits of outside the context of plain-error inqui its Conversely, the claim. where the state Indeed, ry. Michigan Ap Court of claim, courts do not rule on the merits of a peals that, made clear even had Court reviews the de novo. See requisite satisfied the elements of the (6th Maples Stegall, v. 340 F.3d plain-error inquiry, reversal would be Cir.2003) (“Where, here, the state court only “warranted” if he also could show that prop- did not assess the merits of a claim plain, “the ... seriously forfeited error erly raised in a petition, habeas the defer- fairness, affected the integrity public or AEDPA apply. ence due under does not reputation judicial proceedings indepen Instead, questions this court reviews dent of the defendant’s innocence.” Flem questions law and mixed of law and fact de ing, *1; 2002 WL see also Cris (internal omitted)). novo.” citation Be- tini, (“If 526 F.3d at [plain- all three cause the courts reviewed Flem- met, may error] conditions are we then ing’s plain only, majori- claim for error exercise our discretion to notice forfeited ty’s conclusion that the decision of the error, seriously but if ... the error nevertheless, Appeals, Court of fairness, integrity affected the public is AEDPA entitled deference under reputation judicial of the fact, proceedings.”) improper. majority’s insis- Johnson, is, (citing United tence on deference under States the circum- Cir.2007)). stances, contrary controlling authority, The Michigan illogical, manifestly unjust. Having application plain-error stan properly raised his claim before placed significant dard thus burdens on court, pressed the trial that claim at Fleming that he otherwise would not have every stage of his state court proceedings, had to bear to establish a violation under entitled to a full review of the Johnson, Mosley. Benge See v. 474 F.3d merits of his claim. (6th Cir.2007) 236, 246 (recognizing that it petitioner “less burdensome” for it that Fleming

Because concluded satisfy the elements of his Strickland claim, Michigan “forfeited” his error); claim than plain to demonstrate Appeals Court of did not rule on the mer- Straub, (6th 340, Caver v. claim, 349 F.3d its of that but 348 instead reviewed the Cir.2003) only. People (noting plain-error claim for that the plain error v. Flem- stan 228731, 988568, ing, No. 2002 WL at *1 dard of review is “a highly deferential 2002) curiam). 14, May standard, (Mich.Ct.App. (per put mildly”).

539 (6th circumstances, 572, Berghuis, control v. 547 F.3d 590 Cir. Under these 2008) (affording in this circuit is that AEDPA no ling rule deference state claim is reviewed apply and the plain-error petitioner’s does court’s review of context, this Court In the habeas claim); de novo. prosecutorial-misconduct Jells v. plain- a state court’s does not construe (6th Cir.2008) Mitchell, 478, F.3d 511 538 negating review as the determination error (“The plain-error court’s review is [state] procedurally has been default that a claim a not considered review on the mer Walker, 542, 224 F.3d Seymour v. ed. See .”); Benge, (express its... 474 F.3d at 246 Cir.2000) (6th (“Controlling precedent 557 ly de novo applying prejudice review error plain in our circuit indicates prong of Strickland claim where state does not constitute a waiver of review error); plain court reviewed claim for see rules.”); Paprocki procedural state default McKee, 435, Grayer App’x v. F. also 149 (6th Cir.1989) Foltz, v. 869 F.2d (6th Cir.2005) (rejecting district court’s (“We adopt exception loath to an would be plain-error conclusion that state court’s rule that would prejudice’ to the ‘cause and analysis constituted a review of the merits from un discourage appellate state courts claim). petitioner’s injustice] dertaking the sort of [manifest demonstrate, As these cases the control- court, conducted inquiry ling rule in this circuit is that no deference court’s and we do not believe state AEDPA a is due under where state explanation why jury instructions for petitioner’s reviews a habeas claim injustice fairly can resulted in no manifest plain only, regardless error of whether the a waiver of the be said to have constituted plain-error inquiry may court’s have default.”). Rather, a procedural we “view delved into the merits of the claim.3 As er appellate plain court’s review for expressly unequivocally this Court procedural of a ror as enforcement Mitchell, Lundgren held in v. 440 F.3d 754 Randle, Hinkle v. 271 F.3d default.”1 (6th Cir.2006), (6th plain-error a state court’s Cir.2001); Keith v. see also (6th not due under AEDPA Mitchell, review is deference 455 F.3d 673-74 Cir. 2006). reason, “[p]lain analysis because error is more For that this Court does to over- properly re viewed as court’s plain-error not construe a state court’s procedural prevent look defects to mani- adjudication “on the merits” for view as See, Thompkins injustice, equivalent § fest but is not to a purposes e.g., of 2254.2 issue, obviously “safety valve” review sions addressed the default 1. The "Many plain unique. they states cursory error is not even a review demonstrates that procedural have default rules with similar proceeded what standard of also to resolve 'safety in which enforc valves' for situations applies review in this context. ing procedural default would work seri Burris, injustice.” Campbell v. ous Mullin, (10th Cargle 3. In 317 F.3d 1196 (3rd Cir.2008) (citing Neal v. Gram Cir.2003), surveyed vari the Tenth Circuit 1996)). ley, Cir. approaches that the Courts of ous issue, regarding concluding adopted have majority argues 2. that all of our cases and, split among the circuits that there is ap- holding that AEDPA does not deference significantly, identifying this Court as constru "analyt- ply only the in this context resolved ing plain-error a court's review as an state ically prior question of whether a federal procedural application of state default rules permitted in the first court is to hear an issue adjudication an on the merits. rather than placet, precluded whether we are from ad- Hinkle, dressing (citing F.3d at under the doctrine of Id. at 1205 n. 7 claim] majori- Contrary 244). procedural default.” to the argument, although deci- ty's each of these (empha- tially petitioner’s Id. at 765 considered the merits of merits.” review the of added). addressing claim in the “error” element of Accordingly, where the state sis Rather, the deci- plain-error inquiry. a claim has been that courts determine Benge that claim for sion in to review the defendant’s thus review forfeited and entirely on the apply AEDPA does not claim de novo was based only, plain error Rather, plain- we are determination that the state court’s is due. and no deference burdens independent judgment inquiry imposed our error additional free to exercise novo. 474 F.3d at petitioner. the claim de on the habeas See and review Benge explained, 246-47. As the litany of ignore if were to this Even one mandate to defer to state court AEDPA’s majority’s con- flawed accept cases and not factor into reso- judgments [the] “does authority squarely that “there is no tention prejudice prong actual lution” of the key question,” this point on decides claim because the petitioner’s Strickland requires AEDPA express language analyzed Supreme Court had Ohio a federal only where defendant’s deference “only plain in error the context “adjudicated” the mer- on claim has been review, governing not under the less 2254(d). Nothing § in —and its. 28 U.S.C. standard.” Id. burdensome —Strickland remotely suggests AEDPA def- even conclusion, reaching at 246. broadly more where required erence is that, Benge [the Court reasoned “[b]ecause merely addresses merits-relat- state court petitioner] could have met his burden un- federal claim. aspects ed of a defendant’s despite being der Strickland able to because Consequently, error, plain analysis demonstrate did Mosley claim on courts resolved ‘adjudication not constitute an on the mer- and, procedural the basis of state rule — its’ of ineffeetive-assistance-of-counsel [his] fact, “principles improperly in did so —the Nothing Benge suggests claims.” Id. in finality, and federalism” noted comity, ruling the Court’s was affected 420, 436, 120 Taylor, v. Williams may whether merits-related issues (2000), L.Ed.2d 435 are not scope have fallen within the of the state implicated here.4 plain-error inquiry. court’s extraordinary Today’s decision marks According majority, Benge to the does from that con- unjustified departure because, not control fact, here justify its conclu- trolling rule. to case, plain- the state court’s “use of the sion, great lengths to majority goes simply ... made holding error standard of review Benge distinguish cabin judgment reversal of the state trial declining other cases court’s and this Court’s likely, less but not cause the plain-error inquiry, defer did to state unpersuasive. bypass the merits of but those efforts are Con- Court trary majority’s suggestion, nothing Fleming’s thereby trigger- claim and avoid to the majority’s AEDPA ing is relevant deference.” The Benge indicates may tangen- reasoning simply squared courts have cannot be whether the state Jones, merits,] Vasquez analysis Underlying 4. but with little on the our decision issue,” id., (6th Cir.2007), express then is the substantive constitutional recognition justification apply even full that a state court’s consideration there is less deference, here, majority of a its consideration AEDPA as the does "claim” is distinct from adjudicated Id. at where the state court and re- of an "issue” relevant to that claim. If, according Vasquez, only procedural "modified solved the federal claim on state grounds merely required where a addressed merits-related AEDPA deference” is undoubtedly "adjudicated the claim issues in the course of that discussion. [on

541 majority’s position is inconsistent declined to defer Benge, where only the express holdings plain-error inquiry pre- to a state court’s Benge Lundgren, but also with the de- cisely that standard made the because logic underlying gen- those decisions. “burdensome,” showing more fendant’s eral, may “a federal court not consider a 246, a which seems 474 F.3d at conclusion corpus claim for habeas relief if the claim majority’s con- indistinguishable from the procedurally defaulted in state court.” chance of success clusion Yukins, Hargrave-Thomas 374 F.3d “less plain-error under the standard was (6th Cir.2004). excep- There are likely.” tions, instance, For however. the federal majority’s position rec- Nor can the be may courts consider the merits of a claim holding Lundgren onciled with the procedurally that has been defaulted review, even plain-error a state court’s petitioner where the demonstrates “cause may require explore the court to though prejudice.” Thomp- See Coleman v. claim, aspects certain of the merits of the son, 722, 750, to a review of the mer- equivalent “is not (1991) (noting petition- that a L.Ed.2d 640 added). (emphasis its.” 440 F.3d at 765 procedural by er can overcome default Indeed, recog- our sister circuits have demonstrating “cause for the default and nized, decide whether an error is “[t]o actual as a prejudice alleged result requires law,” consideration of the mer- plain or demonstrating violation of federal may required so far as be its—but “that failure to consider the claims will jus- in open up miscarriage determine that issue. It does not result a fundamental tice”). may by The federal courts also consid- any the merits wider for consideration claim Neal, 844; purportedly er defaulted where the the federal court.”5 99 F.3d procedural-default state court’s determina- Coxon, Roy v. 907 F.2d see also wrong as a matter of law. Cir.1990) (“[E]ven tion was See (2d if the state court Smith, Maupin v. (a) questions has addressed the of whether Cir.1986) (describing this circuit’s four- (b) error, there was and whether the error part determining test for whether a claim questions if were prejudicial, these defaulted). procedurally in fact has been plain-error answered the context of analysis, sufficiently the decision was not case, where a federal court the latter ruling on the merits to authorize the procedural- finds error the state court’s (empha- federal court to reach the merits.” ruling, default the federal courts are not added)). majority’s best Despite sis adjudication of bound the state court’s distinguish Benge Lundgren, efforts to claim, proceeded even if the state court controls the rule announced those cases mani- plain to review the claim for error or our review here. And those decisions dic- injustice, “safety or under other fest here, required tate that deference is not Campbell, valve” standard. See of whether the state court con- regardless reason, good And for because 178. aspects sidered some of the merits rejecting underlying the state court’s de- necessarily claim for reviewing ruling implies fault application state court’s of more burden- plain error. Neal, important de review we have determined that the state It is to stress that novo appropriate here not because the procedural-default determination was Fleming’s claim Court of reviewed in error. error, because, plain unlike but rather in tension with improp- under federal law” also is “safety valve” standard some juris determination, aspects other of this Court’s habeas al- such a light In er. instance, in prudence. Joseph For the “state court’s it true though is (6th Cir.2006), we Coyle, 469 F.3d van- reasoning simply does not substantive recognized important exception to the procedural- its erroneous along ish adjudications deference owed state court determination,” majority as the default AEDPA, holding under that de novo re continue to insist on quips, illogical it is appropriate view is “when a claim made on improperly- a state court’s deferring to premised review is on Bra federal habeas undoubtedly more burden- applied, and that has surfaced for the first dy material some, Lundgren, inquiry. See plain-error during proceedings,” federal even time at 765. ostensibly where the state courts ad a state court’s interplay between This that claim on the Id. at dressed merits. application plain and its ruling default cases, 469. In such we have construed the majori- error review also undermines development giving of new evidence contention that “whether ty’s unsupported claim, rise, effect, to a new and thus on collateral a claim be addressed should required have held that deference is not precluded] review is review whether [or 2254(d) § in such Id. under cases. judicially created doctrine of under the Smith, Brown v. 551 F.3d 424 Cir. independent is procedural default 2008), expanded scope we ex Congress requires defer- question whether holding that an ception, principle If to AEDPA.” the federal pursuant ence in Joseph “applies generally,” nounced “ana- rejected the state court’s courts have just in Brady the context of claims. Id. a claim has lytically ruling that been prior” (applying de novo review to ineffec defaulted, then there is no proeedurally claim that tive-assistance-of-counsel courts to be justification for the federal by been addressed “on the merits” determination, bound effects courts). state i.e., a more burdensome application majority’s on Although the insistence fact, such a rule safety valve standard. entirely in this irrec- deference case is not manifestly unjust as would would be cases, with this line of it seems oncilable imply properly that a defendant who has more than a little awkward that de novo court is raised a federal claim state appropriate review is where the state full of the merits never afforded a review undeniably peti- courts have addressed a majority’s any stage. of his claim at The improp- tioner’s claim “on the merits” but obliged baseless contention that we erly failed consider critical evidence give any adjudica- deference to conducting inquiry, yet deference any tion “conducts where the state court required is un- where state courts reasoned elaboration of an issue under fed- doubtedly plain reviewed a claim for error fundamentally unfair eral law” thus is rejected only and we have the state court’s properly criminal defendants who have premise applying entire that standard. court, but, raised their claims in state Indeed, majority’s on insistence defer- own, through no fault of their have never ence the state courts conduct whenever been afforded a full review of the merits of un- “any reasoned elaboration of an issue their claims. utterly is inconsistent der federal law” majority’s that deference logic underlying insistence with the and interests our required application Joseph whenever “the state court con- of de novo review Brown, that a ducts reasoned elaboration of an issue both of which concluded for Appeals’ premise reviewing Fleming’s of issues related state court’s consideration Mosley plain a claim does claim for error was that to the merits of defendant’s Fleming under AEDPA. had forfeited the claim. See require not deference 988568, Fleming, 2002 WL at *1. Now If, insists, majority the “principles as the majority rejected that the has that under- finality, and federalism” identi comity, of lying ruling, longer any default there no is Williams, 436, 120 S.Ct. fied 529 U.S. limiting Fleming’s basis for review of implicated were where plain policy provid- claim to error. Our of adjudicates state court a claim on the mer ing opportunity an for state to cor- courts its, whenever a state court decision but rect a petition- constitutional errors before merely the merits of a defen addresses court, may er seek relief federal see claim, of de novo application dant’s then Coleman, 501 U.S. at would Joseph review and Brown be 2546, simply implicated is not under these Supreme inconsistent with AEDPA. The Thus, although or, rath- circumstances. — assumed, Court, however, has without de er, agree majority’s because—-I with the that under AEDPA is not ciding, deference that the Michigan determination Court of appro that de novo review is required and Appeals improperly Fleming found that Holland v. priate such eases. See Jack claim, Mosley had defaulted on his I dis- son, 649, 652-53, 124 S.Ct. pute majority’s conclusion that AED- (2004) (noting 159 L.Ed.2d 683 “some PA’s deferential standard of contin- review Courts of have conducted de novo to apply. ues theory on the cases] review such [in Court, by determina Absent de novo review this there is no relevant state-court Fleming’s Mosley claim tion to which one could defer” and “assum the merits will fully by any ing, arguendo, analysis this is cor never have been considered court, federal, rect”); majori- Angelone, despite also Monroe v. state or see Cir.2003); ty’s the claim recognition Killian v. was not (9th Cir.2002). Poole, procedurally defaulted. an outcome Such because, not, unjust in majority suggests, particularly this case This is as majority merely linguistic acknowledges, distinction without “were Rather, appeal a direct one to be re- import. substantive is distinc novo, possibility exists that by express tion dictated terms of viewed de AEDPA, necessary agreed Fleming’s posi- with might and one that is to draw we have Mosley Having properly if to make cohesive sense of the tion.” raised his we are by pressed this the trial court and numerous decisions Court our before every stage de that claim at of his state court applying sister circuits novo review court, Fleming to a full despite addressing proceedings, is entitled where of his claim. evaluating party’s the merits of a fed review of the merits claim, review. eral has resolved the claim on the is entitled to de novo procedural basis of state default rules. reasons, agree For these I do not case, therefore, majority’s my colleagues’ analysis Mos- today, it reject Michigan ley claim. At least until seemed decision to Court plain-error for- that a state court’s Appeals’ determination well-settled claim did negates petitioner’s claim also review of a habeas feited his adjudication “on the mer- subjecting entire for that claim to not constitute basis § purposes of 28 U.S.C. plain-error place. review in the first It is its” my opinion, applies that rule here and beyond dispute Fleming’s Mosley suspect our review statements obtained after the controls has Ap- Court of decided to remain silent will claim. Because be excluded Fleming’s Mosley suspect’s “right ques- claim for where the to cut off peals reviewed only, tioning” “scrupulously our review of that claim was not honored.” plain error Mosley, a state court con- 423 U.S. at 321. In “is not circumscribed Smith, 510, determining police “scrupu- whether the Wiggins clusion.” 2527, 534, lously suspect’s 156 L.Ed.2d 471 honored” a invocation of (2003). silent, right there to remain inquire And because is no state we must defer, totality to which into “the adjudication we must circumstances sur- independent rounding interrogation, exercise our we are free to to ascertain Fleming’s knowingly whether the accused in fact judgment and review de and voluntarily to Maples, forgo rights novo. See decided his to

remain silent and to have the assistance of II. C., counsel.” Fare v. Michael 707, 724-25, 2560, S.Ct. L.Ed.2d 197 review, I Applying de novo conclude (1979). confession should not have been police ig- admitted at trial because the case, In this the circumstances sur- rigid requirements nored rounding Fleming’s interrogation make “scrupulously and failed to honor” Flem- clear that “scrupulously did not ing’s right of his to remain invocation si- honor” his decision to remain silent. On lent. November Detective Robert Arizona, Lesneski and other officers executed a Miranda (1966), search warrant for Fleming’s L.Ed.2d 694 residence the Su- surrounding curtilage. preme po- certain When the procedur- Court established residence, lice arrived at his designed protect Fleming al ini- safeguards tially “very cooperative,” rights suspect, under the Fifth and even Amendments, volunteered that Fourteenth to be free from would find (hashish) drugs in a barn on compelled during property. self-incrimination custo- locating drugs, After interrogation. Supreme dial Detective Lesne- ski contacted a specified, among things, other narcotics team from anoth- that if the jurisdiction any manner, in er to assist the search suspect any “indicates team in dealing during drug time to or evidence. prior questioning, that silent, he wishes to remain the interroga- After securing drugs, Detective Id. at tion must cease.” 86 S.Ct. Lesneski speak returned to with Fleming. added). 1602 (emphasis The Court rea- that, Detective although Lesneski testified that, point, suspect soned at this “has Fleming time,” in custody was “not at that shown that he intends exercise his Fifth he Fleming nevertheless advised of his privilege,” “any Amendment and thus rights Miranda Fleming and asked if he person statement taken after the invokes willing would be Fleming to talk. re- his privilege cannot be other than the sponded that he did not want to talk about product compulsion, subtle or other- “that A fucking homicide.” “short time wise.” Id. at 86 S.Ct. 1602. later,” placed Fleming Detective Lesneski Although not all statements obtained af- under arrest on drug based evidence collected, ter suspect right invokes his or her handcuffed him in front of his are, it, the majority puts body ties, remain silent with plastic placed hand him cases,” in “necessarily inadmissible all the back seat of a State Police cruiser, Trooper gesturing De- Lesneski toward him and under the watch be- exclaim, lieved Detective Lesneski vine. “Hell, you!” I yeah, got thereafter, Detective Lesneski Shortly At informing point, Sergeant Clayton a call him that told received shotgun things good team had located a did not look search him, nearby creek. Detective Lesneski imme- and then stated that it would be diately left the area where “best interest” to “do the join thing.” According team at that being Fleming, Sergeant held to the search arrived, Clayton you he Detective also warned: “If location. When have any thing, strong- informed that the search chance at ... I would [ ] Lesneski was ly twelve-gauge shotgun you get pro- team had located a recommend that with the gram.” duct wrapped plastic partic- and secured with When he testified about this moment, briefly Fleming examined ular tape. Detective Lesneski stated that he felt weapon garage police and determined that it was a like “a whole full of officers” him, at Remington pump-action shotgun, “staring” very the same was and he became “concerned, weapon upset, used to shoot the nervous.” Almost [and] model thereafter, immediately Sergeant Clayton victim. Detective Lesneski then sent the if weapon Fleming speak to the forensics lab for further asked he wanted to with processing. Fleming Detective Lesneski. relented and agreed speak to with Detective Lesneski. left

Sometime after Detective Lesneski residence, later, Fleming’s Trooper Sergeant Clayton Devine also A few minutes join at that Fleming decided to the search team informed Detective Lesneski Trooper speak creek. Devine transferred Flem- wished to with him. A few more ing passenger passed to the front seat of a narcot- minutes before Detective Lesneski scene, van, Sergeant van at the and asked Ser- walked over to the excused ics now geant Clayton, Clayton, Fleming. Robert a narcotics officer and sat down with Ogemaw County Depart- Fleming very upset with the Sheriffs recalled that he was at ment, time, nauseous, Fleming. began feeling to sit in the van and watch and “like Fleming Fleming acknowledges remained in the van for he had to vomit.” several very and that Detective Lesneski was accom- hours while the search his residence continued, allegedly modating, “pulled up” because the the van so that property personnel transport Fleming lacked the the other officers would not see agreed also Fleming jail interrupting crying. without Detective Lesneski time, Clay- give Fleming or door to During Sergeant open search. a window Fleming engaged in “small talk.” some air. ton that, after

Approximately Fleming two hours after Detective Lesneski testified Sergeant Clayton’s being Sergeant cus- summoned to the van was transferred tody, Clayton, Fleming “any team returned from the he did not ask search all.” Believing they just questions begin interrogation creek. had locat- at fact, that he weapon, returning ed the murder offi- Detective Lesneski claims [Fleming] all visibly began “sa[y] anything excited and cele- did not cers were brating discovery. vantage prior speaking their From his to him out on these issues.” Lesneski, van, Rather, Fleming according could see the to Detective point to make Although Fleming Fleming voluntarily proceeded could not celebration. statements, van, incriminating ultimate- being hear what said outside the several ly confessing that he shot and killed Scott he testified that he observed Detective shotgun program” had and Detective did York with Lesneski gesture shout and at him just imp- found. and then cooperate.” lored him “to Detective Lesneski’s Fleming disputes events, especially respect version of Upon Fleming’s motion to exclude his that, Fleming claims to one crucial issue. confession, the trial court held a Walker any incriminating made state- before he hearing to determine whether ments, Lesneski stated that he Detective inculpatory initial statements to Detective just mur- he had found the was confident Lesneski were admissible at trial. As the Fleming warned that “it weapon, der out, majority points parties dispute [Fleming’s] inter- be within best [would] precise issue addressed at the Walker point, Fleming At this cooperate.” ests to hearing. The State claims that the hear- began talking to relented and Detective ing addressed whether Lesneski. “voluntary.” statements were Fleming, on hand, the other contends defense advising

Rather than his Mi- counsel also that Fleming’s asserted state- point, rights randa Detective ments should be excluded under until Lesneski waited con- Sergeant Clayton because and Detective interrupting him to fessed before remind Lesneski continued to interrogate Fleming rights. According him of his to Detective and to him pressure to confess he Lesneski, after being after readvised of his invoked Fifth right Amendment to re- Fleming offered more details about rights, incident, hearing main silent. After argument the location from such as of the sides, both the trial court type gun and what and concluded that shooting shells later, Fleming’s statements were admissible. Approximately he used. one hour transported Fleming to the Are- police trial, three-day After a jury Fleming County Department, nac Sheriffs where was convicted of second-degree murder advised of his Miranda Fleming was possession of a firearm during the rights yet again, and a recorded statement commission felony. Fleming of a appealed statement, In his was taken. recorded his conviction as a matter of to the again confirmed that he Fleming shot Michigan Appeals. Court of In an unpub- York, but now claimed that York had opinion, lished Michigan Ap- Court of Fleming family. threatened to kill and his peals affirmed Fleming’s conviction. Flem- told, All ing, the record indicates that 2002 WL 988568. In reaching that police conclusion, advised of his Miranda the Michigan Appeals Court of rights separate on three occasions over the found that Fleming had forfeited his Mos- first, day: course of the after the ley claim because hearing the Walker “ad- barn; drugs discovered in sec- dressed the voluntariness of his con- ond, later in several hours the narcotics fession.” Id. at *1. Michigan The Court of Fleming already van had Appeals confessed to thus plain that claim for reviewed after Lesneski; and, finally, at only. Detective error Id. Michigan The Court of Fleming gave station before a re- did not consider the merits of Sergeant Clayton corded statement. and Fleming’s Mosley claim outside the con- they Detective Lesneski claim that never text plain-error inquiry. of its Id. at *1-2. made promises Fleming. Michigan or threats to Supreme subsequent- Court however, that, Fleming, ly claims while he denied Fleming’s application for leave to threatened, “directly” was not Sergeant appeal. People Fleming, 468 Mich. Clayton (2003). did warn him “get with the N.W.2d jurisdictional.

III. trine is In the collateral context, however, review the doctrine is Ap- light Coleman, comity. on based See ruling, Fleming’s Mosley if peals’ default (“Without at 111 S.Ct. 2546 all, claim is to be considered at it must be rule, ... would offer prison- habeas state because the court’s determina- custody whose supported by ers inde- tion that had forfeited the pendent adequate grounds state or an contrary appli- unreasonable end run around the limits of this Court’s law, or controlling cation of unreasonable jurisdiction and a means to undermine the light in the record. 28 U.S.C. laws.”). enforcing State’s interest its 2254(d). § precisely And that is what the Nevertheless, the doctrine a statutory has majority Although has determined. I dimension in the habeas context because it agree majority’s with the conclusion that serves to reinforce AEDPA’s exhaustion Fleming’s Mosley procedur- claim was not requirement. See id. defaulted, ally separately I write on this (“In independent the absence of the point only I disagree because with the adequate ground state doctrine in fed- majority’s suggestion holding habeas, eral petitioners habeas would be rests on the State’s concession that able to avoid the exhaustion requirement Mosley issue been raised state by defaulting their federal claims court. Whether State concedes court.”). point, the record evinces Flem- ing’s Mosley fairly presented claim was Under AEDPA’s exhaustion require hearing, and thus the issue Walker was ment, petitioner a habeas “shall not be properly preserved appeal. deemed to have exhausted the remedies State, available in the courts of the within procedural pro

The doctrine of default meaning section, of this if “In all he has the prison vides: cases which a state raise, right under the law of the er his in State has defaulted federal claims state by any procedure, question available pursuant to an independent and ade 2254(c) presented.” § 28 rule, (empha U.S.C. quate procedural state federal habeas added). satisfy requirement, sis To this review of the claims is barred unless the petition claim raised in a habeas can must be prisoner demonstrate cause for the “properly presented” to the in state courts prejudice default and actual as a result of procedural context where a law, merits re alleged violation of federal or view is possible. See O’Sullivan v. demonstrate that failure to consider the Boerckel, 838, 844, 1728, 526 U.S. claims will result in a fundamental miscar (1999) (“Section 2254(c) 144 1 Coleman, L.Ed.2d re riage justice.” only that quires prisoners give state state 111 S.Ct. 2546. Federal habeas re opportunity courts a act on their judgment view of a state court thus is fair (emphasis original)); claims.” Franklin precluded only if under doctrine (6th Rose, v. 811 F.2d 324-25 Cir. judgment state court “rests on a state-law 1987). Accordingly, necessary it is not ground that is both ‘independent’ claim, only the state courts to resolve the merits the federal claim and an ‘ade fairly presented. that it be See O’Sulli quate’ basis for the court’s decision.” van, 845, 119 Reed, 526 255, 260, U.S. S.Ct. 1728. Harris v. (1989). 1038, 103 L.Ed.2d claim, Fleming’s Mosley As to the Michi- context, gan the direct review the ade- Court of concluded that the quate independent ground hearing doc- Walker “addressed the volun- confession,” ing Michigan interpreting apply-

tariness of his and thus con- case cluded had been “forfeited.” ing Mosley. Fleming, 2002 at *1. The dis- WL Relying Catey Mosley, on both rejected trict court that conclusion as con- Fleming’s counsel also unambiguously law, trary controlling finding instead framed Mosley the issue terms of a that the “clear record” showed that Flem- violation, arguing Fleming’s confes- ing properly and thus raised issue sion should be excluded because the claim. preserved Mosley his “ignored” his assertion of his Fifth Amend- Mettrish, 04-CV-72365, No. 2007 WL Quoting ment to remain silent. from (E.D.Mich. 2007) 2875281, at *4 Sept.28, Catey, specifically defense counsel also ar- (citing Engle, Walker v. 703 F.2d gued “subsequent interrogation” Cir.1983)). transcript Flem- by Sergeant Clayton and Detective Lesne- ing’s hearing Walker confirms the district repeated ski had “the characteristics of a court’s conclusion. effort to wear down the defendant’s resis- determining whether a claim has claim, support tance.” To defense “fairly presented,” been this Court has testimony counsel elicited that went not focused on four actions that a defendant just issue, to the voluntariness but also to significant preserving can take that are the circumstances under which Fleming “(1) a claim for habeas review: reliance ultimately persuaded to confess de- upon employing federal cases constitution- spite his earlier assertion of his intention (2) analysis; upon al reliance state cases to remain silent. The record thus con- employing analysis; federal constitutional firms that defense counsel also satisfied (3) phrasing the claim terms of consti- the final two factors that this Court has sufficiently partic- tutional law or in terms “significant considered to the determina- allege ular specific denial of a consti- ‘fairly tion whether a claim has been pre- (4) right; tutional alleging facts well ” McMeans, sented.’ 228 F.3d at 681.

within the mainstream of constitutional v. Brigano, law.” McMeans record, Despite this clear ar- the State (6th Cir.2000). As the record demon- gues that Fleming fairly present failed to strates, Fleming’s took all four counsel claim to trial court because during hearing. these actions the Walker Fleming’s suppression challenged motion admissibility of the confession on vol- factors, to the As first two there is no grounds only. untariness During closing question serious that defense counsel re arguments at the hearing, Walker the authority lied on both federal and state certainly urged State the court to focus on recognizing respect must voluntariness,” “nothing but and the trial suspect’s right to remain During silent. “only court did state that the issue” closing arguments, defense counsel ex needed to resolve was “whether or not it pressly referred to Supreme the Court’s voluntary.” in But trial Mosley, appar- decision as as the well cited quoted People Catey, ently from understood the inquiry 135 Mich. voluntariness (1984), App. issue,6 356 N.W.2d 241 the encompassing Mosley lead- as the as it did, ley The trial court seems to have conflated the test focuses on what the when, inquiry Fleming's suspect into the voluntariness of after the exercised his or her inquiry required confession with the under to remain silent.” United v. Bar States however, one, Mosley. (1st Cir.1992). inquiries, The two are dis- 968 F.2d Thus, suspect’s tinct. "While the state of mind is Mosley, under Miranda and "a court finding, the specifically central to voluntariness the Mos- need determine whether there has hand, that, ultimately “[g]iven generally governed held all the cir- the other by cumstances, the standard of review [Fleming’s] I—-I set forth the believe 2254(d). Edwards, § AEDPA. 28 U.S.C. As ex- Katey Mosley, statement under above, however, plained AEDPA’s scenario, deferen- fact that under this it’s vol- [sic] only tial standard of review applies untary.” adjudicated claims that were “on the mer- event, regardless of whether the its” by the state courts. 28 U.S.C. trial court its ruling couched terms 2254(d). § Where a state court does not voluntariness, only question of relevant claim, reach the merits of this Court determining procedural for default is Danner, applies de novo review. Fleming “fairly presented” whether 376; Maples, at 340 F.3d at 436. Mosley claim to the state courts. See Here, Michigan Appeals Court of O’Sullivan, found that Fleming had forfeited his Mos- 1728. Because defense counsel undoubt- ley by failing to raise it at the Walk- so, edly I did would affirm the district hearing. er Fleming, 2002 WL Michigan court’s determination that *1. ruling, Based on the default the Michi- Appeals’ ruling of for- gan Appeals Court of Fleming’s reviewed feited his claim an is “unreason- claim plain only. error Id. Under in light able determination of the facts of standard, Michigan Appeals Court of presented evidence the State court required Fleming to establish that the trial 2254(d)(2). proceeding.” § 28 U.S.C. ruling court’s regarding the “the voluntari- error, ness of his confession” was in IV. plain, that “the error was i.e. clear or rejected Having Michigan Court of ... plain obvious error affected [and] Appeals’ default ruling contrary to con- addition, rights.” substantial Id. In trolling authority light or unreasonable in that, Court of noted record, our review of even if showing, made such a “an Mosley claim not constrained appellate court then exercise its must dis- plain-error Regardless review. deciding cretion in to reverse.” whether whether the Michigan courts addressed as- added). (emphasis Id. The court further pects conducting claim in noted that is warranted “[r]eversal inquiry, it is evident that plain, when the forfeited error resulted courts never considered the merits of an actually conviction of innocent de- Fleming’s Mosley claim outside the con- seriously fendant or when an error affect- plain-error inquiry. text of the With no fairness, integrity ed the public reputa- adjudication state court “on the merits” to judicial tion proceedings independent defer, which we must we review the claim (internal the defendant’s innocence.” Id. de novo. omitted). quotation Clearly, marks application plain-error of the standard of context, In the habeas this Court re- placed review significant additional bur- views a legal district court’s conclusions de dens on over and the above show- novo, but will not set aside its factual ing required Mosley. under findings they clearly unless are erroneous. Bowlen,

Dyer v. above, 283-84 For explored the reasons in detail Cir.2006). determinations, controlling authority State-court on I believe that dictates voluntary only govern- complied required procedures.”

been a waiver after the with the Id. (citations omitted). showing ment has carried its burden of that it at 1383 AEDPA does not due under Appeals’ plain- the deference Michigan Court of that adju- apply.”). constitute an does not analysis error purpose the merits” “on dication y. 246; 474 F.3d at Benge,

AEDPA. See review, Ignoring this as I conclude F.3d at 765. de novo Lundgren, Applying majority must, police con- failed it is evident controlling precedent, we standard honor fully respect scrupulously AEDPA’s deferential cludes that to questioning. I cannot subscribe decision to cut off applies. Fleming’s review conclusion. that Suspect’s A Fifth Amendment A. ruling Michigan court’s of the light Questioning Right to Cut Off forfeited his provides that The Fifth Amendment that claim at all claim, to consider if we are any compelled be ... person shall “[n]o Michigan court’s be because must against a him- criminal case to be witness contrary to or an unrea- ruling was default Const, privi- amend. V. This self.” U.S. law or controlling application sonable requires lege against self-incrimination the record. 28 light unreasonable officials “must cease” that law enforcement 2254(d). majority Although the § U.S.C. any suspect who invokes his or questioning court’s determination rejects Miranda, remain silent. her procedurally de- that the claim had been 1602. U.S. at 86 S.Ct. faulted, continues to insist it nevertheless adjudication enti- is “come into safeguards that the state court’s The Miranda custody AEDPA. But person under a is sub- play tled to deference whenever jected express questioning to either or its once we determine error, we no ruling equivalent.” Rhode Island v. court’s default functional “safety 291, 300-01, Innis, whatever longer are bound (1980). may courts have In other valve” review the state 64 L.Ed.2d 297 injustice, regard- words, “interrogation” avoid serious term under Mi- applied to inquiry explored express ques- of whether randa “refers not less claim to some extent. words or actions tioning, merits of but also (holding 440 F.3d at 765 ... Lundgren, part police of the See on inquiry “is plain-error reasonably likely to police that a state court’s should know are merits”); incriminating response to a review from the equivalent elicit an (holding F.2d at 390 Roy, 907 suspect.” see also Id. inquiry is “not plain-error constitutes “inter- police Whether conduct merits”).

sufficiently ruling regard on “without rogation” is determined underlying intent of objective proof of the holds, If, majority now the Michi- as the Thus, if police.” suspect Id. invokes ruling wrong as a gan court’s default right to re- his or her Fifth Amendment law, longer we no owe matter of then silent, cease” all main “must Michigan court’s undeni- deference to the suspect, including any interrogation of the ably review of more burdensome that “the should know comments Thus, re- claim. the deferential review reasonably likely to elicit an incrimina- quired inapplicable, AEDPA is under ting response.” Ma- must the claim de novo. we review (“Where, here, scope pro- of Miranda’s defining as ples, 340 F.3d at 436 tections, Supreme has concluded the merits of a Court state court did not assess admissibility of statements ob- in a that “the properly petition, raised habeas

551 custody by has made person Sergeant tained after the Detective Lesneski and Clayton “interrogation” ... on constitute depends decided to remain silent under so, Innis. If we then questioning to cut must consider right whether his off whether police fully respected Flem- scrupulously Mosley, was honored.” ing’s decision to remain (internal inqui- silent. That 104, quota- U.S. ry requires omitted) totality us to consider the added). (emphasis tion marks circumstances, including, among other say, That suspect’s is to violate (1) things, Fleming whether: was advised rights they Fifth Amendment where “fail[ ] rights of his Miranda before the initial person custody to honor a decision of a (2) interrogation; questioning im- stopped questioning, by refusing to cut off either mediately Fleming once asserted right interrogation upon request discontinue silent; (3) to remain the police waited a persisting repeated efforts to wear significant period time after him change down his resistance and make invocation of his to remain silent his mind.” Id. 96 S.Ct. 321. (4) questioning again; before him Fleming Court, however, Mosley rejected The received fresh Miranda warnings before “extreme” the notion that Miranda re- confession; the interview that led to his quires prohibition against “a blanket (5) and the subsequent interrogation con- taking voluntary perma- statements or a cerned the same crime that was the sub- immunity interrogation, nent from further ject interrogation. of the first Because we circumstances,” regardless of the reason- must totality examine the of the circum- ing such blanket rule “would trans- stances, merely these factors are signposts safeguards wholly form the Miranda into guide that help inquiry. our The funda- legitimate police irrational obstacles to in- is, mental consideration as the First Cir- vestigative activity, and deprive suspects it, cuit put has whether the suspect re- opportunity of an to make informed and charge mained “in of the decision whether intelligent assessments of their interests.” speak.” and whom he would United Id. at 96 S.Ct. 321. Andrade, (1st States v. Mosley supported facts in the con- Cir.1998). rights clusion that the defendant’s scrupulously

been honored because his Analysis Innis B. subsequent statements were made to an- Approximately one hour into the search officer, crime, other regarding another of Fleming’s property, discover- after a significant period of time had drugs ed in Fleming’s point, barn. At that elapsed suspect since the had invoked his Detective Lesneski advised of his Fifth rights. Amendment at 104- if rights, and asked would be addition, S.Ct. 321. the Court willing Fleming emphati- to talk to him. emphasized that the suspect given “was cally stated that he would discuss complete warnings full and Miranda at the Although matters related the homicide. interrogation,” outset the second and Fleming did not state that he wished to again “reminded he could remain “silent,” Supreme remain has lawyer, silent and could consult with and long held “no ritualistic formula or carefully given a full fair opportu- phrase talismanic is essential in order to nity options.” to exercise these Id. at 104- privilege against invoke the self-incrimina- added). (emphasis 96 S.Ct. 321 States, Emspak tion.” v. United claim, (1955). 190, 194, In assessing Fleming’s we first 99 L.Ed. 997 must determine whether the comments refusal to discuss homicide at invoke his Fifth Amend officers the scene—whether intentional- was to sufficient ly persisted silent. See McGraw or not is “in re- right ment to remain irrelevant — Holland, peated [Fleming’s] 518-19 Cir. efforts to wear down 2001) (holding suspect that invoked her questioning. Mosley, resistance” to where she re privilege Fifth Amendment Fleming U.S. 96 S.Ct. 321. was arrested, handcuffs, made statements such as “I don’t peatedly placed and then response ques it” in want to talk about custody detained at the scene for sever- crime). tions about al hours while the search of his residence property police kept and continued. The initially respected Detective Lesneski Fleming position to observe their decision, immediately Fleming’s and search, discovery and celebrated their Fleming. Fleming stopped questioning fact, shotgun right in front of him. arrested, handcuffed, placed was then account, Fleming’s on Detective Lesneski police in the backseat of a vehicle. gestured Fleming’s direction and de- later, Fleming was trans- An hour or so “Hell, yeah, got you!” clared I At this police ferred from the backseat point, Sergeant Clayton Fleming told seat of a passenger cruiser to the front things good him did not look for and then police van. that it Fleming’s stated would be in “best in the record that There is no indication to “do right thing.” interest” Accord- Sergeant Clay- Fleming was transferred to ing Fleming, Sergeant Clayton also custody in to facilitate further ton’s order “strongly that Fleming recommend[ed]” Clayton questioning. Sergeant was called “get Clayton with the program.” Sergeant only to the scene after the search was Fleming then asked whether he wished to underway, because the search talk to At point, Detective Lesneski. premises. team narcotics on the discovered Fleming relented. Moreover, Sergeant Clayton is a member Considering totality of the circum Ogemaw of the narcotics team from the stances, it police is evident that the did not not the County Department, Sheriffs Are- “scrupulously honor” Fleming’s decision to County Department, nac which Sheriffs Fleming’s remain silent. Even if version leading investigation into York’s discounted, Sergeant Clayton’s events is possible Sergeant It thus is murder. statement should “do the Clayton underlying was unaware of the context, right thing,” when considered in investigation impe- homicide was the rose above the level of mere admonition. being the search conducted. tus for officer, fact, experienced police Sergeant As Clayton Sergeant testified he did Clayton certainly should have known that not know what evidence the rest of the statement, especially such a when made at looking they search team was when left ongoing the scene of an warrant search nearby to search the creek. shortly discovery after the of the mur motives, however, Sergeant Clayton’s weapon, “reasonably likely der to elicit Innis, are irrelevant. 446 U.S. at Innis, an incriminating response.” Because had invoked 301, 100 S.Ct. 1682. Fifth Amendment to remain si- lent, police practices all coercive “must That all if conclusion is the more certain cease,” required accepted. and the were version of events is “scrupulously According Clayton Fleming, Sergeant honor” decision to Although “strongly” remain silent. Detective Lesne- also him encouraged “get ceased, ski’s direct interrogation program.” Fleming also claims Collins, (2d explicitly that Detective Lesneski advised States Cir.1972). him that in his best interest “to was Although Sergeant neither cooperate.” police The conduct of the in this case is Clayton Lesneski ever di- nor Detective dramatically every different in relevant re- homicide,

rectly the Fleming asked about spect from Supreme the conduct that the statements, especially these when taken Here, acceptable Court found in Mosley. together, persistent demonstrate a and police the did not seek to reinitiate ques- persuade Fleming not-so-subtle effort to to tioning regarding a different crime. The Accordingly, discuss the homicide. I re- police also did not reinitiate contact with majori- spectfully disagree must with the Fleming in a careful or man- noncoercive ty’s conclusion that these statements do ner. Nor did police Fleming the readvise “interrogation” not rise to the level of un- of his rights taking Miranda der Innis. before Rather, statement. police the handcuffed Recognizing inherently the “coercive Fleming and him kept locked in a car for pressures setting,” of the custodial Then, they rejoiced several hours.7 in the that, Mosley emphasized once a sus- discovery right him, evidence front of pect interrogation, decides to terminate an investigator with the lead gesturing and “fully respected” that decision must be and shouting at him. building rapport After police not “try must either to resume talk,” with Fleming during hours of “small questioning any way persuade or in to Sergeant Clayton Fleming then advised to suspect] position.” to reconsider his [a “do right thing” encouraged him to added). (emphasis S.Ct. 321 “get program.” with the putting And to Although Mosley stopped creating short of any rest doubt that these comments were per prohibiting police se rule from anything intended to do other than wear asking suspect ever to his or reconsider down resistance to questioning, questions, her refusal to answer it does Sergeant Clayton immediately almost require every make effort Fleming speak asked if he wanted to ensure that “such reconsideration is careful, Detective Lesneski. And when urged in a Detective noncoercive manner at arrived, great length pressured not too Lesneski he also Flem- the context ing that a cooperate.”8 point, defendant’s assertion of his “to At this Flem- speak not to will be honored.” ing United relented. Miranda, majority elapsed Fleming's

7. The considers the time that circumstances. Fleming's event, between initial refusal to answer 86 S.Ct. 1602. other questions about the homicide to cut in favor probative factors much more of whether a Mosley of its conclusion that there is no viola- Mosley violation occurred in this case. Although may tion. the time factor lean favor, slightly in the State's this cannot be the support In an effort to its tenuous conclu- determining crucial factor whether a Fifth sion, majority mischaracterizes some of Amendment violation occurred in this case. particu- Detective Lesneski's comments. Mosley, Unlike the conditions of lar, majority claims that Detective Lesne- permit indepen- detainment did not him to "suggestion” cooperate accompa- ski’s dently reconsider his decision to remain si- by say anything "a nied caution not to about Fleming kept lent. in handcuffs at the ” But, [Fleming] ‘sorry.’ which he would be subjected scene the entire time. He also was earlier, majority opinion Detec- concedes repeated efforts to convince tive Lesneski told that he should not Considering him to discuss the homicide. sorry something you “be have or haven’t circumstances, totality ap- it does not urging Fleming said." Far from cau- be pear elapsed that sufficient time to neutralize tious, suggestion should not "inherently compelling pressures" silent, invoked, once in fact has been announced in is to If the rule all, certainly it any meaning at must “knowingly voluntarily have waived.” against such coercive tactics. Cer- protect Butler, 369, v. 441 North Carolina U.S. tainly, prevent it must law enforcement 1755, 99 S.Ct. 60 L.Ed.2d 286 pressuring a personnel repeatedly from (1979) (citation omitted). the Third As right thing” “get the and suspect to “do noted, in Circuit has those cases “where Certainly, it must program.” with the right the to remain silent was held not to police explicitly pressur- from preclude honored, scrupulously have the cir- been the sus- ing suspect cooperate” a “to after lead to a cumstances conclusion Fifth pect already has invoked his or her police questioning for no other resumed right questioning. Amendment to cut off reason than to induce the defendant to subtle, Mosley or more Whether overt change Vujosevic Rafferty, his mind.” v. protects against attempts the state’s to (3d Cir.1988) 1023, (citing 844 F.2d 1029 a encourage, pressure, persuade, or coerce (6th Charlton, United States v. 565 F.2d 86 suspect to abandon his or her decision to Cir.1977)). here, Such is the case as the Although Mosley permits remain silent. by Sergeant Clayton comments and Detec- new information to a police present to obviously tive Lesneski were made “for no that he is able “to make in- suspect so Fleming other reason than to to induce” intelligent [his] formed and assessments ques- abandon decision not to answer 102, 321, interests,” 423 U.S. at 96 S.Ct. tions about the homicide. suspect “get to with the encouraging a describing pillars the twin of Mi- program” right thing” and “do the so that prophylactic warnings right randa’s “sorry” something he is not for he has —the right to counsel and the to remain silent— certainly scope of permis- said exceeds Supreme repeatedly has insisted with a defendant who al- sible interaction “relatively on a rigid” application of these ready right has invoked his to remain si- Fare, requirements. 718, 442 Indeed, U.S. at 99 lent. each of these comments unequivocal persuade Underlying intent to S.Ct. 2560. the Court’s insis- evinces confess, rigidity recognition least abandon his tence on such is the silent. efforts decision to remain Such that “the setting coercive of custodial in- plainly duty with the are inconsistent terrogation ready-made infringe- for the Mosley “scrupulously police ment, under inadvertent, whether intentional or suspect’s honor” a decision to remain si- protections, of constitutional such that sus- lent. pects plainly must be advised of their rights they may so act on them.” Van

Contrary majority’s suggestion, to the Anderson, (6th 411, Hook v. 488 F.3d 430 required is not to show Cir.2007) (Cole, J., A dissenting). rigid police interrogation “very, very one- application Mosley necessary thus is sided,” v. Thomplcins as was the case protect against inherently coercive Rather, Berghuis. Fleming must show pressures of the setting, custodial and to “scrupulously failed to in-custody ensure that an confession is the honor” his to remain silent. 423 decision voluntary result 104, fact, knowing waiver U.S. at 321. In it is the 96 S.Ct. of an “heavy privilege against burden” of individual’s self- state that bears remain demonstrating incrimination. something yet chip away Fleming's sorry

be he has not said is decision to remain example trying another of Detective Lesneski silent. ” If, believes, as the the rule majority error’ “whether the constitutional vi in Mosley announced tolerates the coercive olation ‘had substantial injurious ef here, pressures applied Mosley’s, admoni- fect or influence in determining jury’s ” tion that must “scrupulously Jones, verdict.’ Vasquez “fully Cir.2007) honor” and respect” suspect’s deci- 575 Pliler, (quoting Fry v. sion to cut off questioning will be rendered U.S.

nearly Indeed, meaningless. on the ma- (2007), L.Ed.2d 16 and Brecht v. Abraham view, jority’s son, protect will against 619, 623, only egregious (1993)). the most practices. coercive L.Ed.2d 353 This ap standard Badgering suspect a lights under the hot plies in the § context of 2254 habeas of an interrogation room is not only the regardless claims of whether the state wearing means of a suspect’s down resis- courts recognized the error. Vasquez, 496 tance to answering questions. To remain F.3d at 575. a viable against deterrent more subtle co- importance Given the Fleming’s ercive practices, Mosley applied must be statements in proving case, the State’s Hook,

rigidly. See Van 488 F.3d at 430-31 admission of Fleming’s confession was not (Cole, J., dissenting) (detailing the Su- harmless error. Fleming’s confession— preme Court’s rigid insistence on a appli- along with his recorded statements and parallel cation of the rule of Edwards v. testimony trial, at which are discussed be- Arizona, 101 S.Ct. 68 undoubtedly was the strongest evi- low— (1981)). L.Ed.2d 378 dence of guilt. Other than Fleming’s

Because the investigating statements, officers own did prosecution intro- not scrupulously Fleming’s honor decision duced no evidence corroborating that to cut off questioning, any statements ob- shot York or present was ever at tained after Fleming asserted his Fifth the scene of the crime. Without Fleming’s privilege Amendment statements, were obtained in vio- the prosecution also would lation of and thus should not have have been provide unable to jury been admitted into evidence. a motive. Fleming’s statements also were

crucial linking gun Fleming be- Analysis C. Harmless Error cause there was no physical evidence link- ing Fleming to the murder weapon.9 Where a confession has been erroneous- Consequently, without Fleming’s own in- ly admitted violation a defendant’s statements, criminating prosecution Fifth rights, Amendment this constitution- would not have been able establish the al subject error is to a harmless error most critical elements of its case against analysis. Fulminante, See v. Arizona 499 Fleming. 279, 310-11, U.S. 111 S.Ct. 113 (1991) C.J., L.Ed.2d 302 (Rehnquist, deliv- Fleming’s confession and testimony thus ering the opinion of the respect Court with very were powerful prejudicial and evi- issue). to this To determine whether an Fulminante, dence. See harmless, error is this Court (White, J., considers the 111 S.Ct. 1246 delivering the “ ‘prejudicial impact of constitutional opinion issue) (“A [the] of the Court to this 9. The evidence to this effect was Fleming's testimo- near property, Fleming renting was ny shotgun time, property owned that looked property was similar to or was expansive the same model open, as the and the location where shotgun found Although in the creek. gun part was found was a of the creek shotgun was discovered in a stream on or party spot, was “kind of a or used to be.” incrimi- made additional Although Fleming In- no other evidence. like is confession re- after he to the statements nating confession own deed, defendant’s and also warning, Miranda damaging ceived a fresh probative the most probably York, those against shooting trial to testified at be admitted can evidence have been excluded and citation should (internal also quotations statements him.” Therefore, Fleming’s the admission first confession omitted)). because Mosley. incriminating statements in violation elicited prejudicially because error not harmless Elstad, 470 U.S. Oregon v. Under a “sub- trial and impacted (1985),if an 1285, L.Ed.2d 222 influence effect or injurious stantial voluntary confession interrogation elicits Vasquez, jury’s verdict.” determining failed to ad- officers interrogating but the See Kordenbrock at 575. F.3d subsequent warning, minister Miranda Cir.1990) (en Scroggy, are not necessar- incriminating statements banc) of confession admission (finding that con- fact that the first by the ily poisoned not of was Miranda in violation obtained Mi- proper without a fession occurred portion of “the because error harmless 309-10, 105 S.Ct. warning. Id. at randa after taken confession defendant’s] [the However, only where applies Elstad 1285. in- than the violation—other the Miranda by “unaccompanied first confession the the fact of made from the to be ferences circumstances or other any actual coercion only con- shooting the robbery and —was suspect’s the abili- undermine calculated to piece of evidence crete, non-circumstantial will” or otherwise to exercise his free ty premeditation prove the state had violation, a constitutional product of crime”). of the element Fifth of the infringement “police such as 309, 105 S.Ct. itself.” Id. Amendment Statements D. Post-Miranda 1285. Testimony Trial Elstad, case, the failure of unlike In this any error was argues The State Fleming’s honor scrupulously police confes- Fleming’s first because harmless to remain silent of his invocation of merely cumulative sion was in error adminis- merely procedural police to the statements subsequent Rather, in- warnings. tering Miranda argu- at trial. This testimony his own efforts repeated Fleming’s vestigating officers’ however, ment, assumes that ques- resistance to and wear down police to the statements subsequent of “police infringement tioning be constitute not also at trial should testimony itself.”10 Fifth Amendment assumption is mistaken. That excluded. agreed that a "deliber- Court in Seibert all to be true of would seem Logically, this violations, especially strategy preclude question-first would involving ate” cases engaged deliberate “ef- in curative unless police post-warning where the statements suspect’s] 622, resistance [a down to wear S.Ct. forts Id. at 124 taken. measures were mind,” Mosley, 423 change his ("The J\, and make him concurring) admissi- (Kennedy, 2601 321, 105-06, because such S.Ct. 96 U.S. at should con- bility postwarning statements of to the deliber- tactics are akin police coercive principles governed tinue to be strategy adapted to undermine "police ate two-step strategy the deliberate Elstad unless warnings” Supreme Court Miranda two-step employed. If deliberate 616, Seibert, U.S. held in Missouri used, postwarning state- strategy has been (2004) (plu- 159 L.Ed.2d 643 substance related ments that are post -Miranda rality), requires the exclusion excluded un- must be prewarning statements together Ken- Justice Taken with statements. concurrence, majority nedy’s narrow more 2008) that traditionally Other relevant factors (upholding as reasonable the admis guide our into inquiry whether a confes subsequent sion of statements elicited af sion obtained the wake of a Fifth ter “several hours passed had since her Amendment violation should be admitted first oral confession” because in weigh into evidence also in favor of exclu formed the defendant that “circumstances deciding sion. whether a second con changed that she [and] was now in by prior fession has been tainted coerced custody”); McConer, United States v. statement, Supreme in Court has (6th Cir.2008) (finding no structed courts to “examine the surround error in admission of incriminating post- ing circumstances and the entire course of Miranda statements made after initial un respect suspect.” conduct with to the warned voluntary but statements Elstad, 318, 105 470 U.S. at S.Ct. 1285. In were not elicited as the result of “interro particular, courts must consider “the time gation”). Given Detective Lesneski’s passes confessions, between second set of warnings Miranda was deliv change in place interrogations, and the ered the middle of a confession that was change identity interrogators.” elicited violation of Mosley, Fleming’s Id. at 105 S.Ct. 1285. Whether effec post-Miranda statements also should have tive warnings preceded Miranda the sub been excluded. See United States v. Pa sequent statements also is relevant. West- checo-Lopez, 531 F.3d 429-30 States, over v. together United decided Cir.2008). Miranda, Fleming’s Whether testimony trial also case, In Fleming’s an examination of by is tainted Fleming’s admission of these factors makes clear that there was prior incriminating statements is a closer no “break in the stream of events ... call. Because the trial court failed to ex- sufficient to insulate post-Miranda] [his clude statements elicited in violation of statement from the effect of all that went Fleming’s Fifth rights, Amendment it is Texas, before.” Clewis v. State impossible say whether Fleming would 707, 710, 18 L.Ed.2d have adopted a different trial strategy and (1967). Fleming’s subsequent incrimi testify decided not to in his own defense. nating statements were elicited in close Perini, Compare Burks v. No. first, proximity to the unconstitutionally- (6th Nov.25, WL *1 Cir. Seibert, obtained confession. See 1986) (“Accordingly, this court concludes (“[I]t 124 S.Ct. 2601 would ordi that the government’s use of Burks’ invol- narily be unrealistic to treat two spates of untary statement did not induce him to integrated proximately conducted testify on his own behalf and that trial questioning independent interrogations confession, court’s decision to admit his subject independent evaluation simply although erroneous under the circum- formally because Miranda warnings punc stances, error.”). constituted harmless middle.”). And, tuate them in the unlike Fleming’s Because the entire thrust of tri- other cases where this permit Court has strategy al was determined the trial ted the admission of subsequent state ments, confession, court’s failure to exclude his there change was no relevant however, Fleming’s trial testimony custodial conditions. See must Coom Yukins, er v. Cir. be set aside in determining whether harm- made.”). less curative postwarning measures are taken before the statement is Kordenbrock, 919 See less error occurred. at 1099-1100.

VI. reasons, respectfully I foregoing

For majority’s resolution from the

dissent I affirm Mosley claim. would grant court’s decision

the district and order on that basis petition

habeas or released. be retried VILLANO, Plaintiff-Appellant,

Debi ASTRUE,

Michael J. Commissioner Security, Defendant-

of Social

Appellee.

No. 08-2150. Appeals,

United States Court Circuit.

Seventh

Argued Nov. 26, 2009.

Decided Jan. Feb. 2009.*

Published now originally has determined that this decision should *This decision was released as published opinion. unpublished Upon request, panel issue as a order.

Case Details

Case Name: Fleming v. Metrish

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 25, 2009

Citation: 556 F.3d 520

Docket Number: 07-2311

Court Abbreviation: 6th Cir.