Simpson v. Jackson

421 prices through cap- tail RPM order to greater profits. logic

ture Economic tells

us otherwise.

Leegin participates the retail nearly

market with 5000 other stores. It any profit

must share increase at the retail Leegin

level with those other retailers. If

sought only margins, to raise its it would price Brighton goods

raise the at the level, capture

wholesale where it could all gains. Leegin is thus no different

from a manufacturer that does not have stores8;

retail normally seek to margins

minimize retailer as much as pos

sible, including its own retail stores.9 896,127 Leegin,

See 551 atU.S. S.Ct. 2705.

AFFIRMED. SIMPSON,

Donovan E. Petitioner-

Appellant,

v. JACKSON, Warden,

Wanza

Respondent-Appellee.

No. 08-3224. Appeals,

United States Court of

Sixth Circuit. 21,

Argued: April 2010. 13,

Decided and July Filed: 2010. noted, Airlines, Inc., eight 751, 8. As the district court other cir Inc. v. Am. 889 F.2d applied (7th cuits have 1989); traditional rule of rea Logistics Group, Cir. Int’l Ltd. v. systems. son to dual distribution See AT&T 904, (6th Chrysler Corp., 884 F.2d Cir. Telecom, LLC, Corp. v. JMC 470 F.3d 1989); Servs., Ryko Mfg. Co. v. Eden 823 F.2d (3d Cir.2006); Corp. Electronics Commc’ns (8th 1987). 1230-31 Cir. Prods., Inc., Toshiba Am. Consumer 129 F.3d (2d 1997); Optical, 243-44 Cir. Glacier helps "A manufacturer dealers form a Monde, (9th Optique Inc. v. du 46 F.3d 1141 less, doing cartel is itself in. It will sell 1995) (unpublished); Smalley Cir. & Co. v. get profits.” dealers will the monopoly East- Inc., Cuming, Emerson & 13 F.3d erbrook, Vertical Restraints the Rule of (10th Elecs., 1993); Hampton Cir. Audio Inc. Reason, (1984). 53 Antitrust L.J. Cellular, Inc., (4th v. Contel 966 F.2d 1442 1992) Travel, (unpublished); Cotporate Cir. Ill. Fletcher,

ARGUED: Brian Wilmer Cut- LLP, ler Pickering Hale and Dorr Wash- D.C., ington, Park, for Appellant. Gene D. General, Office of the Ohio Attorney Co- lumbus, Ohio, Appellee. for ON BRIEF: Fletcher, Brian Wilmer Pickering Cutler LLP, D.C., Hale Washington, and Dorr for Appellant. Park, Gene D. Office of the General, Columbus, Attorney Ohio, Ohio Appellee. MARTIN, SUHRHEINRICH, Before: WHITE, Judges. Circuit MARTIN, J., the opinion delivered court, SUHRHEINRICH, J., in which WHITE, joined. 445-48), (pp. J. delivered separate opinion dissenting part concurring part. Appeals ap- direct Ohio

OPINION peal. That set forth facts as court JR., MARTIN, F. Circuit BOYCE follows: Judge. In the hours of early morning October Simpson, an Ohio Petitioner Donovan out at 151 a fire broke South inmate, relief from his con seeks habeas Columbus, Avenue Ohio. Wheatland murder, murder, aggravated victions for time, At the Aleta Bell and three of her murder, attempted aggravat five counts of five, children, age Elijah, Shenequa, four arson, ed and five counts felonious as three, old, age Myesha, and five-months sault, from a fatal arson. An arising all were Also asleep sleeping in the house. aiding him jury Ohio convicted under men, in the were two Terrance house abetting theory assisting and another Williams, Myesha’s Hall fa- Gary and a preparing in “Molotov cock individual ther. early Hall was awakened the individual flee after helping tail” and glass. crash of morning by a loud He house, resulting at a in throwing the bomb in engulfed found the flames. Af- house child sleeping of a inside. death house, ter running out of Hall was Simpson claims that four of his state Williams, able to Bell and wake Aleta 24, 27, April April on June ments—made Myesha who in the sleeping were 20, erroneously 2000—-were and June They same were out get room. able in Mi admitted into evidence violation of Unfortunately, house. were Arizona, 384 U.S. randa v. not able to reach the two children who (1966), 1602, 16 proge L.Ed.2d 694 and its were in a back sleeping bedroom. ny, as well as violation of the Fifth Depart- Members of the Fire Columbus For the forth Amendment. reasons set (“CFD”) ment arrived on the scene and below, we find that the June 16th state were two able to find the children and properly ment admitted evidence was into take directly Hospi- them to Children’s but that the state court’s admission of the However, tal. of the injuries result 24th, 27th, April made on April statements fire, Shenequa sustained in the Bell died contrary and 20th was to and an June survived, days Elijah Bell later. but application Supreme unreasonable injuries. suffered serious at the time precedent Court the conviction By August indictment filed ap- became final. These errors were harmless pellant charged with thirteen counts as to Simpson’s aggravated convictions for relating to the fire at 151 South Wheat- assault, deny arson felonious so we Appellant land was charged Avenue. relief as to those convictions. aggravated two counts of murder were not errors harmless as to Bell, for the Shenequa death of in viola- murder, aggravated convictions for mur tion of 2903.01. Both con- R.C. counts der, murder, attempted grant we so specifications tained penalty pur- death corpus a writ of habeas as to 2929.04(A). Appellant suant R.C. those convictions. charged attempt- also with five counts people ed murder of the five other in the I. house, in violation of R.C. 2923.02 and Background A. Factual 2903.02; arson, aggravated one count 2909.02; The last state court decision the mer- five violation of R.C. its, Andrews, assault, counts of see Garcia 488 F.3d felonious violation (6th Cir.2007), Appellant is that of the R.C. entered a not Court 2903.11. guilty plea to all of the charges appellant was incarcerated. Their con- jury to a versation proceeded trial. was recorded. Detective Kallay testified appellant trial, appellant sought Before his to sup- told him that he picked up a man press four verbal statements he made to Daryl named “Pumpkin” Kelly day prior being officers indicted. before the fire and took him to a bar to statements, Two of these one on April 24 meet a woman named Appellant Leah.1 and another on April waited outside while Daryl Kelly went made to appellant officers while was in- into the bar. When Kelly and Leah Licking carcerated Southeastern out, appellant came heard Leah tell Kel- Correctional Institution for an unrelated ly to “take care of Appel- this for me.” crime. Both of these statements were lant told Kallay Detective got that he recorded. No Miranda warnings were call from an Daryl Kelly excited the next given appellant before he made these morning who said he needed another statements, statements. The other two appellant ride. When picked Kelly up, one on June 16 and one on June he said that Kelly smelled like gasoline. 2000, were made at Columbus Police Daryl “Pumpkin” Kelly was a suspect Headquarters. Both of these state- even appellant before provided this in- (which ments were essentially confes- formation. sions) videotaped. Appellant were was Smith, 1 Leah was Leah a former friend read his Miranda before these of Aleta Bell who lived in the other half of the statements were made and he signed a house 151 South Days Wheatland Avenue. indicating form he understood and fire, before the Leah had moved out of the rights.

waived those After an evidentia- house. The two had been involved in a dis- pute earlier in the summer of when ry hearing, the trial court denied his Aleta Bell forging accused Leah of a driver’s thereby permitting motion the state to personal license with Aleta's information but introduce these statements into evidence picture. with Leah’s When Aleta found the at trial. license, driver's she took it back. Leah later broke into Aleta's home and stole the driver’s The following key testimony was pre- charged license. Leah pled was with and during sented the state’s case. guilty to one burglary arising count of from that incident. later, days 27, 2000, Three April De- Jr., Kallay, Detective Edward a homi- Kallay tective Special Agent Ozbolt primary cide detective who was the in- went to the Southeastern Correctional vestigator in this matter for the Co- Institution to talk with appellant again. (“CPD”), Department lumbus Police conversation, In a recorded appellant January testified in he had again implicated Kelly Leah and in the a conversation with a man named Adi- fire at 151 South Wheatland Avenue. yat Diggs. upon Based that conversa- conversation, Following this the officers tion, Kallay believed that appellant appellant’s obtained release on probation might have suspect information about a so that he cooperate with them police thought who the could have been investigation. However, their appellant in starting involved this fire. On April to cooperate, failed leading the officers Kallay Detective and Federal to believe that appellant had more to do Special Agent spoke Ozbolt with appel- with the fire than admitting. he was lant at the Southeastern Correctional Due to appellant’s cooperate failure to Licking County Institution in investigation where with the and failure to interrogation was Again, fire. probation, of his by the terms abide videotaped. appellant on Kallay arrested Detective April June 2000. recorded statements Appellant’s con- 24th, videotaped April 27th and arrested, appellant he was After and June 20th of June 16th fessions interro- headquarters and taken to CPD jury appellant’s for the over played Special Kallay Detective gated objections. interrogation Agent Ozbolt. Bowen, Stanley then called The state that, prior videotaped. undisputed It is Licking County. Sheriff Deputy appellant was read being questioned, employed as su- Deputy Bowen was his During question- rights. appellant jail at the which pervisor admitted his involvement ing, appellant Deputy April was incarcerated met fire. He said that he starting appel- that he overheard Bowen testified Kelly day before the fire Leah and they charge the “why didn’t lant ask Kelly to take appellant when Leah asked to start too. It was her idea bitch eve- night. Later that somewhere inmate, addition, an who was fire.” emp- took two ning, Kelly appellant testified that appellant, in a cell next to them with ty of alcohol and filled bottles fire. He told him all about the appellant They gasoline. brought bottles him there were appellant said that told how make a Leah who showed them involved, and that people three Kelly Appellant Molotov cocktail. to firebomb the Molotov cocktails used of 151 South then went to the area house. drove into an Wheatland Avenue and crack, smoking Kelly some alley. After jury returned deliberating, After the

got out of the car with the two bottles guilty of all finding appellant verdicts later, and, appellant a seconds heard few attempted murder and five counts of Kelly running glass break and then saw assault, count of guilty felonious of one back towards the car without the bottles. arson, guilty of the lesser house, aggravated away a crack sped The two Shenequa of murder of included offense they paged where Leah. She arrived and Bell, felo- guilty aggravated paid them both with crack cocaine. Bell, find- ny-murder Shenequa also Kallay further testified Detective penalty ing appellant guilty of the death admissions, he made ar- following these aggravated specification because rangements appellant to have take of a course of conduct part murder was 20, 2000, polygraph ap- test. On June of, killing involving purposeful pellant brought again was to the CPD kill, persons. two or more attempt undisputed take the It test. 01AP-757, Simpson, State No. 2002 WL appellant was read his 1625559, *1, App. LEXIS at 2002 Ohio again. Kallay Detective testi- (Ohio Ct.App. July *1-12 uncooperative so appellant fied that 2002). Appel- performed. the test could not be following undis-

lant’s lack of was confirmed We note the additional cooperation Walker, appear material facts that do by testimony Randy puted who The factual recitation. hired to administer the test. the state court’s had been Nevertheless, interview was held in a confer- waiting April 24th while in the room Simpson office. test, ence room in the warden’s appellant to take the made more pulled general prison popula- in was from the his involvement regarding admissions tion and escorted to the warden’s office nine-year consecutive to the sentence on 16-17.) prison guards. (Appellee’s Br. at Count VIII. plainly, Stated more the court interview, officers, During the on the Simpson sentenced to five consecutive hand, being one accused eight-year Murder), terms (Attempted but, Kelly at the time of the incident forty years, a total of plus nine-year hand, him the other told that he was not a Arson), term (Aggravated plus a term of at A133.)1 (A63-64, suspect. April 27th Murder). thirty years (Aggravated least interview occurred while was in up This adds to a total term of imprison- (A136-37 prison’s infirmary. (“Q: ment of no seventy-nine years, less than Okay. again, And how meeting was that life, potentially prison.

arranged? They just A: came down there infirmary].”).) [the Background B. Procedural appeal, On direct the court all upheld original filed his petition for convictions, but it vacated the sentence writ of habeas corpus, pursuant to 28

for reasons not material to this case. At § U.S.C. on February as- re-sentencing, imposed court discrete serting grounds numerous for habeas re- I, sentences for each conviction. On Count April lief. On the Magistrate Murder, imposed the court a sentence of Judge Report issued a and Recommenda- years fifteen to life in prison. On Count tion finding all of Simpson’s claims either II, Murder, Aggravated the court imposed procedurally meritless, defaulted or save prison, a sentence of life in thirty regarding claims April his two state- years parole before eligibility. On Counts ments and his two June statements. The III-VII, Murder, Attempted the court im- Magistrate Judge found that the admission posed a sentence of eight years prison statements, April error, if in on each of the convictions. On Count Magistrate harmless. The Judge VIII, Arson, directed Aggravated the court im- the state to supplement the regard- record posed a sentence of years prison. nine ing the June EX-XIII, statements to allow for fur- Assault, On Counts Felonious ther evaluation. The district court over- imposed years Court a sentence of eight Simpson’s ruled objections to this prison Report on each conviction. The court and August found that Recommendation on merged Counts I and II 2007. for On November purposes sentencing. Magistrate The court or- Judge eight-year Report dered that issued a second Felonious As- and Recom- sentences, IX-XIII, finding sault Counts mendation the remaining would be claim re- concurrently garding served the June to each other and statements to be merit- merge eight-year with the less. Attempt- district court overruled sentences, III-VII, ed Murder Simpson’s objections Counts for Report to this and purposes of sentencing. The court further January and, Recommendation on 2008 therefore, ordered that the life-with-parole-eligibility- dismissed Simpson’s petition. after-thirty-years Simpson timely sentence on Count II appealed, and this Court would run consecutive eight-year granted to the appealability certificate of as to III-VII, sentences for Counts which would the admission of Simpson’s April and June other, also run consecutive to each statements. Appendix Citations to the Petitioner’s will ties' convention in their briefs. "A_” appear keeping par- with the ill.

II. A. June Statements court’s deci We review district of law in a habeas regarding questions sion statements occurred Though April Prelesnik, Avery novo. v. proceeding de first, the June their relevance was tied to Cir.2008). (6th F.3d the State used the statements because on the ve- April statements cast doubt petition Simpson’s federal habeas racity Simpson’s June state- aspects passage to the subsequent was filed ments, in which he to minimize his sought Penalty Effective Death Antiterrorism and carrying planning involvement in the (“AEDPA”) thus, and, pro in 1996 its Act begin out of the arson. We therefore review. Under govern visions this Court’s analysis with the June statements. AEDPA, grant a federal court adju relief unless the state court’s habeas 1. June 16th Statement either: dication of the claim Simpson’s June 16th statement occurred (1) that was con- resulted in a decision arrested, ostensibly for after he had been to, an unreasonable trary or involved judicial re- violating conditions his of, clearly established Feder- application above, in lease. As described return for law, by Supreme al as determined Kallay Detective cooperation, his continued States; or Court of the United Agent arranged Ozbolt (2) resulted in a decision that was based early “judicial jail release” from Simpson’s on an unreasonable determination of the on an unrelated offense. When light presented facts in of the evidence promptly upon did not reestablish contact proceeding. the State court release, the officers caused arrest to focus his attention back on the 2254(d). “contrary § U.S.C. Under investigation, though Simpson even arson provision, to” a federal habeas court technically violations of arrested for “if state court grant should the writ release, two judicial missing such as ‘opposite arrived at a conclusion to that Thus, Simpson was detained drug tests. on a Supreme] reached Court [the essentially June 16th for two different question of law or if the state court decides reasons at the same time—the release vio- differently Supreme] a case than [the investigation. lations and the arson This materially indistin- Court has on a set of ” Kallay presented a situation which Webb, guishable Boykin facts.’ significant pressure Ozbolt could exert (6th Cir.2008) (quoting F.3d through potential consequences of his 412-13, Taylor, 529 U.S. Williams get Simpson release violations in order to (2000)). 146 L.Ed.2d 389 S.Ct. cooperate investigation. in the arson application” “unreasonable Under clause, may grant began a habeas court the writ The June 16th interview if the state the correct both officers an interview room court identified Simpson,2 generally discussing Simpson’s legal principle Supreme from the Court’s failure to contact unreasonably applied that current arrest and his decisions but upon Approxi- the officers his release. principle petitioner’s Boykin, to the case. into the mately six and one half minutes 541 F.3d at 642. (or ly p.m. mark the 2:23 mark on 2. The June 16th interview video recorded at the 6:00 itself) through recording and part portion The rele- lasts and is of the record. (or p.m.) begins approximate- 12:08 2:29 mark. vant to the Miranda issue conversation, left, one of the officers situation, but details of his current having the other officer remained in the room. been going arrested and jail, back to incarcerated, where he would be what his officer remaining immediately The in- were, violations etc. Critically, the officer Simpson formed because he was Simpson did not ask any substantive ques- “technically” custody, the officer must tions,3 instead responding Miranda inform him of his rights. Simpson’s questions explaining that he Simpson initially protested even being was arrested for violating the terms of his i.e. he asked that the offi- rights, read his release. “please” cer not read him rights. The persisted

officer and eventually read The other officer then came back into his Miranda Simpson rights gave him the interview room. There was an eight- copy a read. silence, to-nine period second and the expressed that he rights. understood his asked, first officer then you “so do want to you The officer then asked “are willing to talk to us about of this or not?” your rights, waive continue talking with Simpson responded by mumbling some- (1) us?” Simpson responded: “mmm- thing, and even the tenor response of his mmmm,” (2) clearly in negative way; officer, unclear. The second who had not sideways slight shake of his hand and a present been during the first Miranda head; (3) shake of his mumbling some- interaction, said, then right, “all since its a “naw”; thing saying and then “nah” or interview, custodial which you’re means (4) saying then “I up messed last time I stuff, under arrest for that pretty it’s cus- that.” replied, did The officer then “So tomary that you we advise your rights you don’t want to talk to us? You do or first.” responded that the first you want don’t to talk to us?” Simpson already officer had discussed the responded negative body with more lan- rights. first presented officer said, mean, guage “I help.” can’t Simpson with a waiver of rights form and said, “just go over, ahead and look that

Following silence, four to five seconds of you’re us, and if willing just to talk to go said, the officer up you, “Well that’s waiver, sign ahead and and we can you not, whether want to talk to us or move on. Just need to make sure we’re not going your to twist arm or any- understand all that.” Simpson began immediately re- thing like that.” said, mean, reading the form and “I sponded, y’all “what wanna talk about?” here, it really don’t make no differ- stated, and the “just basically officer what ence, you know what I’m saying, sign it or talking we’re about now.” We will refer to not.” The second officer responded, colloquy up point to this as the “first saying, “that’s what we’re but its a formali- Miranda interaction.” Everything that ty, and that’s what required by we’re law follows will be referred to as the “second to do.” Miranda interaction.” minutes,

Over the next one and one half point interview, At this in the it ap- is Simpson questioned the officer about parent that Simpson was still struggling question 3. The during officer did ask one responded this release. The by asking, officer colloquy, only second but it can be character- get any can we simple "how more than that?” ized question. non-substantive rhetorical "question” This thus does not run afoul of asked, Simpson "why y’all give can’t me some Simpson’s previous expression of a desire not shit,” simple Simpson relation to the deal rights. to waive his cooperate early had struck to in return for likely be incorrect that, ar- warden he has been the fact while was in to remain silent Simpson’s desire his release condi- of rested for violations doubt. the ar- tions, is about the interview more rights of the waiver son. He indicated there. analysis does not end But here, I said, right thing “this

form and too narrow of slice Simpson focuses on against mean, ‘may be used talking about and, instead, we must look at colloquy officer re- The second conversation, me.’ For what?” which the entire six-minute you happen if what would sponded, “Well the first Miranda interaction includes both know, that, T you killed out and said entirety, came we Viewed its and the second. Then, people [inaudible].’ honored one officer conclude that, know, didn’t tell us and we remain si- you you if initial inclination to Simpson’s any lose that your right, we’d the officer did not ask you advise lent because and, instead, only re- then execut- Simpson questions in court.” material statement inquiries. Once sponded form. rights ed the waiver returned, they returned to other officer Miranda, a. Miranda Warning Simpson execut- the issue of form. ed the waiver the officers Simpson argues Miranda when they questioned violated light, the offi When viewed re expressed his desire to him after As a inappropriate. actions were not cers’ brief, Simpson main In his focuses silent. Miranda is only principles, matter of first exclusively on the first Miranda interac interrogation or its functional directed that, point, at that Simpson argues tion. police may not continue equivalent —the to remain clearly he had invoked his desire has in interrogation after the interviewee silent, ceased. so the interview should have silent. Rhode right voked his to remain warden, Innis, accepts surprisingly, 291, 300-02, 100 Island v. 446 U.S. (1980) (restrict that this is the relevant dis premise S.Ct. 64 L.Ed.2d Resp. (accepting Br. at S3 {See cussion. “interrogation” the definition of ing of the relevant Miranda Simpson’s transcription express questioning purposes interrogation).) portion police of the June 16th “that and words or actions reasonably know are like should that, conclu- argues The warden at the response”). ly incriminating to elicit an interaction, first Miranda sion of the Here, Simpson the officers did not ask unclear. Simpson’s inclination remained they revisited the questions material until time, point Simpson at that he wished to waive his issue whether “mmm-mmmm,” “naw,” and “I said rights and discuss substantive Tellingly, up messed last time I did that.” matters, immediately to which asking, you “So responded by the officer consented. You do or don’t want to talk to us? By virtue of the don’t want to talk to us?” Similarly, even concedes question, first it is clear that the officer clearly in- suspect when a does not leaning towards understood to be when the to remain silent or voke If saying that he did not want to talk. fol- ambiguous, officers invocation clarifying questions. Davis v. enough, Simpson responded up that were not low with States, 461-462, dismissive, body United negative with additional 512 U.S. (1994); see said, mean, help,” can’t language and “I 129 L.Ed.2d S.Ct. Thompkins, Berghuis also 560 U.S. elapsed. and then a noticeable silence - 2250, -, here, -, Thus, L.Ed.2d analysis to end the 130 S.Ct. if the (June 2010) 2160784, 1, at *8 at some period 2010 WL least of time after he in- right vokes his to remain (stating principled “there is no reason to silent. The offi- room; immediately for cers need not leave adopt determining different standards the they simply may when an accused has invoked Miranda not continue questioning badgering But, to remain silent and the Miranda suspect. right for Davis.”). Simpson prevail, theory in his must to counsel at issue be that the officers should Here, immediately, have Simpson initially indicated a desire seconds, in a matter of left the room when to remain silent. When the officer re- said, mean, “I it help.” can’t This is not up you, sponded, “Well that’s whether law, so there nothing wrong not, you want to talk to us or we’re remaining officers in the room for the going your anything to twist arm or like few seconds until asked the offi- was, context, that” —which a non-coer- about, cers what wanted to talk nor immediately cive re- statement — any prohibition was there on the officers sponded by asking the officer what he answering Simpson’s questions. wanted to talk about. He then asked sev- eral questions of the officer until the sec- sum, there are at argu- least three Thus, ond officer returned. the officers support ments to the validity of Simpson’s were faced with an individual who had waiver of his Miranda rights. Further- indicated that he did not want to talk and more, Simpson pointed has not any yet continued to talk. Accordingly, it was Supreme Court case indicating that not unreasonable or impermissible for the officers’ actions these or similar circum- officers to have circled back to the Mi- stances were improper. Accordingly, we randa clarify issue whether find that the validly officers obtained the rights wished to waive asking before Miranda waiver of rights prior Indeed, questions. him substantive to the June 16th interview. Supreme encouraged Court such clari- Davis, b. Fifth Amendment Coercion 461,

fying questions in at U.S. 2350, 114 S.Ct. and four Justices would Simpson next argues even if required have officers seek clarifica- Miranda, the officers did not violate ambiguous tion in the face of an invocation June 16th statement was coerced viola Miranda Id. rights. 86 S.Ct. tion of the Fifth prohibition Amendment’s (Souter, J., concurring). on compelled confessions. He does not claim that the officers utilized improper Finally, it is well-established that a physical Instead, tactics. he claims that suspect’s voluntary, unsolicited statements they used a combination of threats and after an invocation of are promises, which had the cumulative effect Arizona, Edwards not excluded. overbearing his will. 477, 484-85, U.S. 101 S.Ct. (1981). because, L.Ed.2d 378 This is Whether a confession was volun scenario, tary the unsolicited statement depends upon totality offi “the of all the scrupulously cers have surrounding honored the sus circumstances—both pect’s invocation have not interrogated characteristics of the accused and the de Though Simpson’s him. tails of the interrogation.” Schneckloth v. is not case of Bustamante, statements, Edwards line of unsolicited 412 U.S. (1973). is relevant what

cases it assumes—that 36 L.Ed.2d 854 The Su permissible for the officers still be preme Court has held that the combination in the same room with the promises may interviewee for of threats and rise to the

432 with them after that he would interact an interview to overbear level sufficient will, surprise confession have come as no rendering release should ee’s Lyn coercion. impermissible of “threats” product Simpson points to two Simpson. Illinois, 83 S.Ct. 372 umn v. U.S. during the interview. by the officers made (1963); Ledbet 917, see also 9 L.Ed.2d First, that he warned the officers (6th Edwards, 35 F.3d ter v. failure to felony charge for faced a new Cir.1994) that, of a in the face (recognizing provisions with his release comply prom of threats and combination powerful felony would charge that the “guaranteed” ises, completely who is even defendant “[a] information provided he be filed unless confess”). However, well might innocent (A396-97.) Second, they about the arson. noted Supreme a Court plurality as stated, your opportunity. is ‘Cause “This Seibert, 600, 124 U.S. Missouri not, [Kelly], and down with you’re going if (2004), “main 159 L.Ed.2d 643 S.Ct. Being accomplice carries guess what? involuntary a statement taining that threw person as the that penalty the same warn after though given [Miranda ] even you that proven the bottle.... We’ve re voluntary waiver of ings and We don’t bluff.” play games. we don’t stamina, over litigation quires unusual (A402.) stated, “You are The officers also finding end with the voluntariness tends to if investigation. But not the focus of our 609, 124 waiver.” Id. at S.Ct. of a valid with no an- tonight leave this room we 2601; McCarty, Berkemer v. see also swers, looking You are you will be.... 433 n. U.S. life, your possibly death— (1984) (“[C]ases rest in which a L.Ed.2d 317 argument game you want to can make a colorable death row. If that’s defendant self-incriminating Peanut, statement was you that we’ll take there.” play, fact that the law ‘compelled’ despite the (A404.) adhered to the enforcement authorities threats, Simpson to these addition rare.”). Accord Miranda are dictates of he leniency that points promises also that a defendant faces an

ingly, it is clear overbearing to the claims contributed when, here, argues he uphill climb regard charge to the for his will. With involuntary though even a confession was conditions, release one of violating his waived his Mi properly received and stated, help yourself, want to officers “You implicit as an deriva rights. randa And help yourself. ‘Cause now’s the time candid light tive of these principle, (A397.) Court, yet.” filed charge ain’t been Supreme from the statements arson, especial interview must be stat- given regard facts of a to the the officers With ly to lead to the conclusion egregious they “ultimately get wanted to ed that Supreme application a state court’s if he Pumpkin [Kelly] and Leah” unrea case law was Court involuntariness involvement, the officers confessed to his under purposes of habeas relief sonable him “talk to whom- “work with” AEDPA. (A402-03.) points to Simpson also ever.” came following colloquy: the June 16th interview

Although arrest for about as the result of any- did not accuse Kallay: We conditions, it must violation of his release you of thing. gonna We’re not accuse Simpson previously be remembered there. anything except being cooperate with the officers agreed that’s, See, that’s crime Simpson: Thus, early release. in return for officers, and man. familiar with the Simpson was It, Kallay: it could be a crime if major flaw Simpson’s reliance you’re doing doing. upon continue what Lynumn is that the Lynumn defen- dant had not received Miranda warnings (A409-10.) Simpson contends that confession; indeed, before the Lynumn implied statement that he would not be predates Miranda by years. three As the charged being if he admitted to there and cases, more recent like Berkemer and Sei- implicated Kelly and Leah. bert, teach, it has become much more diffi- highlighted by addition to those cult to argue the involuntariness of a con- Simpson, aspect another of the interview fession if Miranda warnings have been upon Simpson’s bears implicate decision to given' and the have been waived. himself. Simpson has several children. It that, Thus, we upon analyze seems his must jail, Simpson’s release from he case son, under living general been the more youngest had involuntariness doctrine. he was with this As we stated in son when he was re- Ledbetter: clearly arrested. He was concerned about In determining whether a confession has son, being away from his and the officers by been elicited [psychological] means times, played upon they this. Several sug- unconstitutional, that are this court gested tell the truth so that looks at the totality of the circumstances And, get could back to his son. more concerning “whether a defendant’s will effectively, played officers was overborne in a particular case.” conscience, Simpson’s making repeated Factors to consider in assessing the to- comparison between Simpson’s children tality of the circumstances include the and the child killed in the fire. The video education, age, and intelligence of the shows that this tactic extremely effec- accused; whether the accused has been tive—one can almost see the emotional informed rights; constitutional struggle going Simpson’s on in mind. length of the questioning; repeated and prolonged nature of the questioning;

Simpson primarily upon Lynumn relies and the physical use of punishment, such Illinois, 372 U.S. 83 S.Ct. as the deprivation of sleep. food or (1963), clearly L.Ed.2d 922 established Bustamante, Schneckloth v. 412 U.S. Supreme holding Court law threats 36 L.Ed.2d 854 promises may combine to render a (1973). There, involuntary. confession the Court held that a defendant’s confession to sell- 35 F.3d at Applying 1067. these factors to ing marijuana was involuntary. Id. at the June 16th interrogation, none cuts that, 83 S.Ct. 917. The defendant favor, testified strongly and certainly immediately upon entering apartment, her not so strongly that a state court’s conclu- the officers threatened that she would nev- sion to the contrary could be deemed ob- er see her children again if she jectively did not unreasonable. Though it is not confess but assured her would clear from the record what level of edu- prosecutor recommend that the charge achieved, cation has it is clear her if cooperated. 531-32, she Id. at 83 that he had extensive experience with the 917. The S.Ct. Court held under criminal justice system. Thus, on June circumstances, 16th, these it was “clear” that the the experience of being questioned confession could not voluntary; be deemed was not new or novel to him. fact, the state Furthermore, conceded that the confes- a prior, had con- sion was argued coerced but that the error sensual relationship with the officers. He 534-35, was harmless. Id. at agreed S.Ct. speaking continue with them They than he claimed. interrogation. more involved specific before this even at the end of the June proposed, employ threats therefore the officers did though And interview, Simpson poly- that take a to obtain in their effort 16th promises that, disclosure, told him They essentially video reveals graph the test. Simpson’s full the play completely the truthful on tactic was if he had been the most effective stated, 16th, they under the Simply pass he would test his conscience. circumstances, Simpson seek totality of the to work with him and the would continue showing circum- prosecutor. from the has not met his burden favorable treatment detector, there is a substan- severe that would stances so If he failed the lie was overborne. We his will he tial risk that he was more involved than “know” that as habeas relief to deny Simpson admitted, rec- therefore and the officers would 16th statement. prosecutor bring the June ommend that charges against possible most serious 2. June 20th Statement Thus, proposed the officers Simpson. that he techni- Though Simpson admits The first purposes. detector for two lie Miranda rights during the cally waived his the truth of purpose was to test interrogation, he contends June 20th purpose The second June 16th statement. and, thus, voluntary was not the waiver to to his “true” get Simpson was to confess appro- is more argument His ineffective. that, if he by telling him role in the arson distinct attacks on framed as two priately lied, up, so he should pick the test would First, of his Miranda waiver. validity 16th, the test. On June come clean before involuntariness pure advances a take the test. Simpson initially agreed to the officers ob- argument, arguing that cooperative he less than by using promises, false tained the waiver actually arrived on June when the time threats, misleading statements that 20th. except to talk with them. had “no choice” interview, 16th Sec- At the end June argument unpersuasive. find this We ond, very blunt with that the officers vio- the officers Simpson argues lated discouraging proceed. him from about how his case attorney. argu- dialogue This was as follows: consulting with an relevant persuasive, more significantly ment you Kallay: Tuesday morning pick we materially distinguishable the facts are not bring you polygraph. in for a up and Carlton, Kyger from the facts polygraph then we’ll re- pass You (6th Cir.1998), in which we found F.8d stipula- your instate bond. Under a clear violation of Miranda. you you’re do what told tion interview, Coming into the June that, 20th charge we’ll us. You don’t do already given incriminating Simpson had complicity agg to commit you with on June 16th. He had confess- statements murder, away. immediately prior being Kelly ed to And that ain’t no bullshit. Ozbolt: Mo- Kelly prepared

to the arson while don’t Kallay: That is no bullshit. You driving lotov and to the car before cocktail have a choice at this time. Kelly threw the cocktail and after Molotov house, you Let me ask this. Is that having Ozbolt: though at the he disclaimed you? gonna pass You agreeable the attack planning been involved in the if there’s polygraph? ‘Cause any- kill or harm having any intent us, tell tell something you else need to Kallay Agent Ozbolt one. Detective to have us now. suspected seem No, Simpson: that’s it. Complicity Ozbolt: aggravat- commit ed murder. There’s no way nice Ozbolt: Hmmm. say it. way That’s the it is. Simpson: I you say charged What’d (A492-94.)4 with? At beginning of the June 20th inter- Kallay: Complicity agg murder. If view, in preparation for the polygraph fail to do that’s exact- exam, Kallay had more strong words for ly you’ll what get charged with. If Simpson. He times, stated at various run, run, you you want to can but we ‘You don’t cooperate case, on you eat you. will find the thing. whole agg It’s called murder— conspiracy to commit.... you If don’t co- murder, Simpson: But agg but that’s operate then ... there are no holds time, how much doesn’t that carry life barred, you’re and gonna lose. You’re in jail? gonna spend the your rest of life in jail---- you If don’t take the today test Kallay: Mmmm-hmmm. Life with no ... gonna we’re file the paper you on parole. got You’ve a lot of incentive. today for complicity to agg commit mur- And we’re not playing you, 518.) der. It’s simple.” (A514-15, straight, is the honest to God truth. now, you right We coiild do that to if of Miranda Waiver a. Voluntariness we wanted to. (1) Simpson claims that Simpson: Charge What? me? promise that if he passed took and Kallay: Mmm-hmmm. But what did we (which polygraph, he would be released tell from the beginning? Kallay admitted promise) false Simpson: Alright. (2) strong language indicating that Simpson had to take the polygraph or else Kallay: I want Leah. So does Dan [Oz- be charged aggravated murder, She’s had bolt]. the one who caused this will, combined effect of overbearing his thing happen. whole She’s the one rendering his rights waiver of involuntary. who thing caused this whole to hap- government bears “heavy burden” pen. She’s the one who to pay. needs of proving the voluntariness of a waiver of Simpson: Right. Miranda, Miranda rights. at U.S Kallay: Pumpkin threw the fire ... 475, 86 S.Ct. 1602. The voluntariness Simpson: Yes. question requires an “inquiry into the to

tality of the circumstances surrounding the interrogation” to determine if the inter Kallay: You don’t have alternatives. “in viewee fact knowingly voluntarily thinkin’, I Simspon: just know. I was forego decided to rights his to remain si just there’s nothing, straight it’s for- lent and to have the assistance of counsel.” ward ... C., 707, 724-25, Fare v. Michael 442 U.S. Ozbolt: Mmm-mmm. straight up. It’s (1979). And, 99 S.Ct. 61 L.Ed.2d 197 Simpson: Straight up, just stated, its ... as Miranda “any itself evidence Kallay true, 4. Detective later admitted that the offi Kallay if it was not re- cers never intended to sponded, release "Because we had not had him take passed reinstate the polygraph bond if he took and yet, test and we still wanted polygraph. (A508-09.) why When asked he would tell him to take it.” threatened, tricked, essentially To all true statements. the accused was will, course, sure, they very strong into be had a influence cajoled a waiver the defendant did voluntari- his show that decision to waive Miranda, 384 U.S. ly privilege.” repeatedly waive on June 20th—he indicated that (A521, 86 S.Ct. 1602. he felt if he did not a choice have 526) even said that he felt that was re argument Beginning with (A527). being “railroaded” But the state release, Kallay’s promise garding false court court were correct that and district decision Simpson points to our Williams telling the officers were truth (6th Withrow, Cir.1991), F.2d predicament. light about his In part grounds, on other 507 U.S. rev’d statement, already June 16th the officers 123 L.Ed.2d enough charge evidence to him the (1993). Williams, In we addressed a situ essence, the arson. officers were mere- stated, in which a officer ation “I’lL ly informing Simpson options before everything a tell us you make deal. You him. he Simpson So was correct that did us happened you and tell the truth that choice, not of a have much but polygraph you’re and I confirm on a that simply acknowledgment reality. an Yeah, you the walk.” 944 telling us truth. subsequently Simpson authority, 286. for cites no much less F.2d at The officer clearly immunity Supreme into if authori promise malized this a established Court ty, indicating involuntary took the that a waiver if suspect passed polygraph. the is truth, prisoner hearing We was made after the or that offi Id. at 287. held that cers an may reality entitled to habeas relief because “an evalu inform interviewee police bright ation of ‘the entire course of con when that is reality Yukins, cheery. E.g. in this case that duct’ establishes Williams’ McCalvin (6th Cir.2006) (“We voluntary. were not His state F.3d are not statements prepared police on his that to forbid conveying ments conditioned belief from be if he suspects he would released talked. seriousness of the crime leniency they are promises being investigated.”). officers’ were intend which to induce at Though ed Williams’ admissions.” Id. the case exist in which the distinguishable ugly presented truth could be in such an Williams because, case, way in that that explicitly overwhelming the officer and combative will, taking suspect in return for would lose his the cir promised immunity free contrast, By passing interrogation cumstances of the June 20th polygraph. here, Simpson not that Accordingly, the officers never told that do strike us as case. charged promise regarding he would not be in the if he neither the false arson passed polygraph. They simply polygraph said nor the blunt statements re Simpson’s options garding that re-instate bond on are sufficient to Thus, previous, crime. warrant habeas relief. unrelated not like the suspect Williams who Right b. to Counsel doing confessed because he believed that get any charges. so could him out of next contends suggesting that the Miranda by As claim officers’ violated threatening aggravated attorney only murder if he an if he was charges lying. needed examiner, polygraph did not in the When the Officer participate polygraph Walker, voluntary, began discussing Simpson’s Mi rendered waiver the state randa court and district court held that these indicated right present, had the to have counsel there’s been a shooting involved and “Oh, Simpson replied, I can an have attor- charge. that’s serious (A528.) ney present?” responded, Walker Officer: itYes is but we’re investigating. any-anytime, you always ‘You c-can can We’re saying you not anybody. shot attorney present. my have an It is under- just Now, We’re investigating. if standing you wanted take the test.” you’ve hide, got something to I can (Id.) Simpson understandably seems to you understand wanting sign have taken this to if mean he wanted you hide, that. got nothing ain’t If attorney present, he would not be able know, you you can answer ques- our Furthermore, to take the test that day. tions. already he had been told that if he did not I Kyger: got ain’t nothing to hide. polygraph take the that day, he would be Okay. Officer: you But don’t want to charged with aggravated murder immedi- questions answer our without an at- But, ately. above, for the reasons stated torney present now? problematic this is not under Miranda be- know, Kyger: You I’ll answer a certain cause it was essentially the truth. The amount, you know. problem arises in happened what next: Officer: Okay, you know you well know you Walker: Do sayin’? follow what I’m you have to stop time. you’re That’s ... if telling me the (inaudible) That’s ... truth, then won’t problem have a Kyger: Where do I sign at? then, you’re the test. If lying, Officer: Just where it says “sign.” uh, yeah, if I lying, was I probably would, probably I’d get attorney, an I Kyger: Okay [Kyger signs], then probably wouldn’t take the test. added). 146 F.3d at 376-77 (emphasis In Simpson: Oh. light of this colloquy, we found Ky- Yea, ger’s statement well, request counsel, was a for Walker: that’s me. But that’s such that know, interrogation should yeah, a decision have you you stopped immediately. Id. Impor- have to at 379. part make. This of the form tantly, however, we wordy went on to state lengthy. and is-is What that: this is, says you giving are me per- if Kyger’s request equivocal, [Even] mission give you to the exam. the subsequent by statement the police (“Now, you’ve hide, if got something to I (A531-32.) can you understand not wanting sign Simpson claims that we have held a you that. If got nothing hide, ain’t materially identical exchange to violate know, you you can ques- answer our Miranda. In Kyger, we a addressed situ- tions.”) was an inappropriate effort at following ation which the transpired: answer, pressuring Kyger to rather than Steve, Officer: you do understand them appropriate an attempt to get Kyger to rights? clarify response. This would also Yes, Kyger: sir. render questioning this constitutionally Alright, having Officer: them Miranda, infirm. See at U.S. mind, you answer some of our (disapproving just 86 S.Ct. 1602 such questions, attorney without an pres- tactic); States, a Davis v. United ent? U.S. 114 S.Ct. just (1994) Kyger: I’d as soon have an attor- L.Ed.2d 362 (approving the use of [jcause, ney you know ya’ll say clarifying questions). in- omitted). discourage not (citation a rule that Kyger As the Court

Id. their re- persisting with an inter- terviewees from noted, ill of spoke itself already they have counsel interroga- quest for in which the rogation technique after counsel, may preemptively but speak- requested suspect a from tries to dissuade tor advice “Joe, seeking from discourage I’m them attorney by saying an ing with them of the truth, informing after you’re of counsel and if only looking for actually truth, counsel but before right it. You can handle that’s telling no 454-55, The warden offers request counsel. by yourself.” 384 U.S. none, en- authority, and we are aware of S.Ct. 1602.5 strange proposition. a dorsing such that the statement The warden concedes essence, accept the warden’s distinction to the statement Kyger is similar altera- following approve would be to However, the in this case. Officer Walker ‘You have warnings: of the Miranda tion cases on distinguish seeks to warden attorney, you only need right to an but Kyger basis that involved temporal guilty if are to exercise he wanted to suspect who had stated that an unreasonable lying.” are This would be attorney Simpson had speak to an whereas Mi- reading unreasonable rule and an two counsel. We find yet requested not randa, expressly disapproved which at distinc- attempt faults with the warden’s Miranda, at 454- a tactic. 384 U.S. such tion. First, stated that Kyger expressly Here, Officer indicated to Walker even inappropriate

officer’s statement was only lawyer if he Simpson that he needed equivocal an re- Kyger if made lie, and such a had lied or intended to counsel, opposed to a clear quest for likely taint an interview- highly tactic is F.3d at 379. request for counsel. 146 decision-making calculus. The obvi- ee’s Here, though Simpson’s statement takeaway perspective from the ous request certainly unequivocal is if he Simpson’s position someone in counsel, equivocal an ex- it was least attorney, an he would be admit- requested considering speaking that he was pression in his Indeed, ting lying, to which would result to counsel. that Officer Walker immediately charged aggravat- being responded clarifying with a statement (‘You Thus, as always only option, ed murder. other any-anytime, you c-can can Walker, was to take the my by It under- stated Officer attorney present. have an is day the assistance polygraph take the without standing wanted to test.”) under of counsel. appropriate —which Davis, 461, 114 2350- 512 U.S. at S.Ct. way is inher- Framing the issue in this thought shows Officer Walker ently coercive and violative of Miranda. requesting have been coun- Simpson might Furthermore, doing, Officer in so Walker Thus, sel. because statement stating from the truth to crossed the line equivocal an statement about his de- and, arguably, giv- to distorting the truth counsel, all fours. Kyger sire for is on ing legal high advice. Officers run a risk

Second, offering move into the realm of troubling, accept to when and more that, accept quite possible to advice. It is the warden’s distinction would be violation of question was a clear Kyger under AEDPA be- statement 5. was not decided application Supreme precedent. This petition prior Court cause the had been filed to by the subse- of Miranda was not affected immaterial because is quent passage AEDPA. proposition Kyger is that the the relevant from of the attorney, suspect, police- with an the at- not from that of a Simpson spoken arranged for a man be he torney poly- could have ever so well intentioned. Un- occurs, simply impossible til this at a Officer Walker is to graph later date. predict be; what advice Simpson to the counsel’s would essentially advised con- were, right and even if it to advice of trary. As the Fifth Circuit—in a case in surely counsel is the to advice to from responded equivocal which officers an counsel, interrogator. not from the by stating that request for counsel “an attorney suspect’s] not relate [the could Thompson Wainwright, 601 F.2d story police, to the ex- [the officer] (5th Cir.1979). attorney plained probably that an Thompson’s reasoning applies with say nothing” explained: advise him to — force equal correctly here. permissible after inquiry limited [T]he having superior viewed Officer Walker as legal equivocal request an counsel knowledge op- about his circumstances and may argument not take the form an tions. Officer crossed the line sep- Walker suspect interrogators between about arating adversary advisor when from he would be in having whether counsel said that needed Simpson only attorney an suspect’s best interests not. Nor if lying. he was was this Not not true presumption by it incorporate a strategy, as a matter of legal lawyers interrogator suspect to tell what routinely instruct even innocent clients not him if counsel’s advice to would be but, speak police, even if it are present. were Such measures for- true, it was not Officer Walker’s clarification, eign purpose to the Thus, place give the advice. because which but to discern. persuade is Miranda itself expressly disapproved of here, tactics used as confirmed Kyger,6 and because the warden’s attempt Cunningham’s explanation

Officer distinguish Kyger unpersuasive, we consequences suspect’s talking find that innocuous, the state court’s admission of the might counsel have been even June 20th statement was unreasonable proper, had it been correct.... But application Supreme precedent. Court and, perilous even such are explanations if be given, materially must not incor- April B. Statements

rect. Here simply preced were incorrect: was The June statements were true, told, by April, that “if ed two in on Thompson interrogations as the 27th, during he he could not tell 24th and the which attorney told his time Simpson The in a story.”.... point jail separate side of the is that for offense. Acting tip Simpson might counsel’s advice about what is best for on a that have counsel, arson, for suspect something the to not the known the Detec do about tive interrogator, give. Kallay Agent arranged to And it is for him Ozbolt to give Simpson jail. April after with his client meet with in In his consultation statements, suspect’s Simpson any after where the denied involve weighing claimed, the ment at all in He point best interests lie from of view the arson. already "Although only Supreme interpreted the 6. Court case law is reviewed and relevant examining Supreme to determine relevant under the AEDPA in what court case law whether established,' legal 'clearly principle clearly a has been Federal law is the deci- Appeals by Supreme sions of the States Courts of established the Court." Hill v. United 706, (6th Cir.2003). Hofbauer, the extent we 337 716 be informative to have F.3d 440 Kelly and it held that error in admit-

however, that further “Pumpkin” to know the was harmless ting evidence because day the before the incident. and Leah met April inculpatory the were not Kelly called statements that He also claimed on their face. a ride around the time Simpson request that, picked Kelly he when of the fire and that, although The state court held like was excited smelled up, Kelly at the the Simpson prison was in time of did not administer gasoline. The officers statements, in April custody he was not the Miranda warnings at outset of either and, thus, purposes of Miranda warn- no interview. ings In so the required. holding, were string state court cited a of from eases suppress moved to both

Simpson later circuits, various the primarily Ninth Cir- due to the officers’ failure April statements Walker, v. Cervantes cuit’s decision in 589 Miranda warnings. The state give (9th Cir.1978),7 have F.2d 424 conclud- the motion on the basis court overruled not, incarcerated being ed simply does in “custody” was not under itself, Miranda custody for constitute Miranda during interrogations, the so no Instead, purposes. question under trial, required. were At warnings these there cases is whether has been the two statements prosecutor introduced “change surroundings in the prison- showing for the purpose imposition er which in an added results with in police had not been truthful Id. freedom of movement.” at 428. April. sought to show prosecutor upon The state reliance line court’s Simpson lied to because the officers contrary circuit to factually cases was in- April by denying complete- involvement law, distinguishable Supreme Court case ly, similarly lied his June statements States, Mathis v. United 391 U.S. 88 when involve- he admitted limited (1968). S.Ct. L.Ed.2d 381 20 words, the prosecutor ment. In other credit jury asked the June Mathis, Supreme Court ad- point to the up impli- statements that he admissibility dressed statements However, cated at all. the prose- case, himself without Miranda given warnings in a cutor not to urged jury one, credit the June like this in which the individual was in as statements insofar minimized prison serving a sentence on unrelated arson, his involvement in the Id. pointed state crime. S.Ct. 1503. The proof why to the April government statements that the contended statements jury should so conclude. The appel- petitioner state admissible because “the ruling, jail by late court affirmed the trial had not put court’s been officers applied We reasoning ap- prison- the Cervantes to find noted Cenantes did so that a Ozuna, proval in dicta in United States er who v. initiated contact was not (6th Cir.1999). custody F.3d n. at the time of the contact. Black, (8th substantially E.g. Cervantes deals with different 843 F.2d Leviston There, Cir.1988) pattern custody fact case. (prisoner than this and in not in Miranda every prisoner police almost other federal circuit court case when called to a discuss Cervantes, crime). So, may to the applied prisoner persua- have was while Cenantes be being questioned something hap- involving in questioning pris- about that sive the cases of pened prison. E.g. v. Singletary, prison in Garcia oners that occurred in about events (11th Cir.1994) (prisoner initiating F.3d prisoners 1490-92 instances contact with of custody guard police, not when prison inapposite police in Miranda in cases of the is responding prisoner’s initiating prisoner interrogation to a fire in cell asked of a about fire"). prisoner "why something completely he set the a different offense or Cenantes prison actually distinguished happened beyond Mathis that the on this basis. walls. The other 589 F.2d at 427. cases to have Mathis controls in those circumstances. him, but there questioning summarize, for an en- equivocal: “To we hold that offense,” id. tirely at when an separate 88 S.Ct. individual is taken into custody 1508, or, words, or otherwise peti- deprived in other because the of his freedom the authorities in Miranda custody any significant not in during way tioner was subjected and is to questioning, priv- the interviews. The Supreme Court con- ilege against self-incrimination argument jeopar- cluded this was “too minor dized.” shadowy justify departure from the well-considered conclusions of Mi- Miranda, Id. at (quoting S.Ct. 1503 randa with reference to warnings to be 1602). at Indeed, U.S. 86 S.Ct. in Id. given person to a held in custody.” dissent, objected Justice White to the ma- The Court went on to state that restricting jority’s “cavalier” extension of the defini- Miranda protections to those that are in Miranda tion of Id. custody. 88 S.Ct. custody for the case under investigation (White, J., dissenting). go “against the whole purpose of the There is no relevant factual distinction Miranda decision” and that there was between Mathis and the circumstances of Miranda “nothing in the opinion which Simpson’s April Quite statements. telling- warnings calls for curtailment of the ly, the state court never cited Mathis. given persons be under interrogation by Here, Mathis, as in state agents unaffiliat- why officers based on the reason the per- prison ed with the isolated an inmate and Id. at 4-5. And to custody.” son is in questioned him about an unrelated inci-

punctuate the matter with clarity, dent without first giving Miranda warn- Court stated: . ings. Supreme The Court ruled that such

In of speaking “custody” language action improper and that any resulting the opinion is clear and un- suppressed.8 statements must be As there But, Supreme recently 8. We note that the process Court in the making holding, Simpson’s made clear that an inmate in situa- Supreme Court ques- stated that one ”[n]o custody being tion is Miranda when he is tions that custody Shatzer was in for Miranda questioned by authorities on an unrelated purposes during the interviews” with officers Shatzer,-U.S.-, Maryland crime. jail. while in 130 S.Ct. at 1224. inAnd —1213, L.Ed.2d-(2010), holding period that the of time between the when, ever, question Court addressed the if interviews, during two but which Shatzer re- police re-initiate contact with a sus- offense, mained incarcerated on the unrelated pect right after he has invoked his to counsel. custody, did not constitute Miranda the Court Simpson, jail. Like Shatzer was in Officers stated, distinguish "[w]e the duration of in- jail sought came to the question him might carceration from the duration of what offense, about an unrelated and he invoked interrogative be termed custody. When a to counsel. The interview ceased prisoner general prison is removed from the prison and Shatzer was popu- returned to the population separate and taken to a location later, years lation. Two and one half another questioning, separa- duration jail sought officer came again back to the assuredly dependent upon tion is his interro- question Shatzer about the crime. This gators” period "interrogative such time, he waived his Miranda and made custody” custody. constitutes Miranda Id. at incriminating sought statements. He later (emphasis original). Though 1225 n. 8 suppress his statement on the basis that he controlling post-dates because custody had never left Miranda after Shatzer the first and, thus, case, interview state improperly re-ini- court’s decision it is interrogation tiated Supreme violation of Edwards. clear that the Court would find that Supreme disagreed, holding Court Simpson’s April interviews occurred while he custody there had been a break in Miranda custody. was in Miranda gener- once Shatzer had been returned to the prison population. al distinction, we be- April against Simpson, and evidence material factual the the is no Su- contrary beyond question were admitted to lieve that the errors statements it precedent. preme harmless, Court at to some of were not least as against Simpson. the convictions Analysis Harmless Error C. was, lack The 20th statement for of June review of On collateral a state place. description, all over the better error not prosecution, constitutional will actually poly- the Simpson never took if the court be deemed harmless concludes at with the man graph, spoke length but injurious it “had and effect that substantial who the examiner. At polygraph would be determining jury’s the ver or influence point, one he retracted his admissions of Pliler, Fry v. 116, 127 dict.” 551 U.S. 16th, returning position June the he to (2007). 2821, 168 L.Ed.2d 16 If the S.Ct. took in that he involved at April was not finds grave court itself with doubt as However, pressure all. after further from error, of the error not the effect an Ozbolt, Kallay admitted to Bradshaw, Simpson Franklin v. harmless. (6th Cir.2008) being even more involved than he had O’Neal (citing F.3d McAninch, in his June 16th He 513 U.S. admitted statement. (1995)). 992, 130 (1) Kelly L.Ed.2d 947 Leah and hearing admitted: hap- the arson one week before discuss case, In this the Ohio of Court (2) (A638-39); pened day on the of noted, were, Appeals Simpson’s statements arson, Kelly the he heard tell Leah far, by damning against the most evidence (A632); up” she wanted the house “blown 1625559, *5, Simpson, him. 2002 WL (3) * Kelly heard how that he Leah tell (“Without App. at Ohio LEXIS (A642-44). to make a Molotov cocktail incriminating the question, most evidence were, Simpson’s admissions on June 20th against were presented appellant trial far, only strongest the evidence of statements.”) own There was phys no arson, in the also his involvement but the or eyewitness ical evidence him to linking extent of his knowledge and involvement statements, the arson. from his Aside before, after during, and the arson. pieces two other potential of evidence (1) ly implicated Simpson: depu a sheriffs However, even in state- the June 20th ty jail at the local testified that over ment, Simpson still maintained that he had “why they heard ask didn’t not been involved in planning the the charge bitch too. It her idea to cocktails, arson making or in Molotov fire.”; (2) start inmate from a Thus, anyone. and had no intent to kill to Simpson cell next testified that prove purpose with the acted him that three people told were in there another, causing the death the State fire, them, volved he was one of something needed more than (A2249). they used cocktails. Molotov Creatively, own admissions. the State above, As set forth we have found Simpson’s April prove turned to denials April that both statements and the June this element. 20th statements admitted in violation state- April state court found the of Miranda and its progeny, but that simple ments be harmless rea- June 16th properly statement was admit facially inculpatory. son that were not against light ted Simpson. Again, role misses strong played point. the statements Kyger both the case presentation State’s is instructive: tion.”) added). appeals state court and the district (emphasis The The Kyger con- ... court held that the error of admit- currence echoed this sentiment: ting Kyger’s November 14 statements Kyger’s comments during interroga- was harmless because the statements tion in my opinion were highly inculpato- exculpatory. The state continues showed, ry they because in light of the argument. argument to make this Their facts, real that he was lying. prose- The is that the admission of these statements cution took full advantage of these lies prejudicial Kyger, was not trial, repeatedly at juxtaposing Ky- what helpful to him. We are unpersuad- ger told the physi- what the by argument. ed this We know better cal actually evidence showed. than to think that prosecution admit- Kyger, (Merritt, 146 F.3d J., at 383-84 ted emphasized evidence and it in its concurring). Accordingly, it is well-estab- opening closing purely statements April lished that the statements were not out of such a benign Kyger’s motive. merely harmless because were facial- statements contradicted physical hard ly exculpatory. evidence and him made look like a liar. argues warden that the June state- As the Second Circuit has noted: ments and the other evidence are sufficient A defendant’s false exculpatory state- to convict for the crimes of which ment is admissible at trial to show his charged he was had admitted to see- guilt may consciousness of be an —he ing Kelly cocktails, make the Molotov important part government’s of the vaguely knowing Kelly that and Leah had proof. If the statement was taken in problem Bell, a with Aleta driving the car violation of the defendant’s constitu- when Kelly got out with the Molotov cock- rights, tional the fact it was tails, driving away the car when Kelly exculpate meant to does not make it returned. any subject warden suppression. less makes argument assumption under the Kyger, 146 F.3d at n. (emphasis both June statements were properly ad- original) (quoting Quiroz, United States v. mitted, whereas we have already conclud- (2d Cir.1993) (citations 13 F.3d ed that the June 20th statement should omitted));9 Innis, see also 446 U.S. at 301 have suppressed. event, been any n. (“By 100 S.Ct. 1682 ‘incriminating Simpson contends regardless response’ we refer response— evidence, other the admission of the April whether inculpatory or exculpatory—that appear statements made him to the jury to the prosecution may seek to introduce at liar, be a trial.”) casting thus heavy doubt on the Miranda, (emphasis original); (“[The full truth of his June statements. This U.S. 86 S.Ct. 1602 harmful, prosecution statements, specifically claims, not use regard whether to the exculpatory inculpatory, charges aggravated stem- murder, murder, ming from custodial interrogation of the and the five counts of murder, attempted defendant unless it demonstrates the use which the jury was in- procedural safeguards crimes, effective to se- specific structed were intent mean- cure the privilege against ing self-inerimina- that Simpson must have acted with the Kyger majority ultimately 9. The constitutionally found harm- obtained statement made unconstitutionally less error because the days ob- several later and was contradicted exculpatory had, fact, tained Ky- parafin false showing Kyger statement —that test ger gun night had not fired a weapon night. on the Kyger, fired 146 F.3d question subsequent, identical to a at 382 & n. 4. —was Never- finding Simpson. as to credibility to opposed death as causing of purpose that, if theless, contends even the warden likely death was a knowing that merely out of the are taken (A926-34.) April the statements was defined Purpose result. enough evidence picture, a “con- there was still proof of jury requiring as for the The war- was a liar. Simpson show that specific the producing of objective scious the Simpson lie that told points to a pur- den result,” specific “a intention here whereabouts, but this Kelly’s of another.” officers as the death cause posely all, relevant, if at as it only marginally (A928-29.) if the was contends Simpson Simpson’s concern the extent does not purpose the element not found jury had and, trial, at this in the crime acquitted have involvement it would proven, have been jury to the be- played was not mur- statement attempted murder and him of all the did not believe prosecutor cause the agree. der counts. We (A267.) Thus, jury the anything.” “added no direct evidence The State offered make its rely upon this lie to likely did not any- to kill Simpson’s purpose was that it credibility determination. adverse as, revealing state- even in his most one that, in 20th, points out his The warden also Simpson specifical- ment of June statement, Simpson point at one June 20th Kelly that intended to ly knowing denied (A679.) Instead, claiming no involvement reverted back to house. the up blow the But, we have now in the arson. as tending to es- at all introduced evidence State found, 20th statement was inad- Bell10 the June Kelly’s purpose to kill Aleta tablish missible, rely upon not so the warden jury Simpson that the infer that and asked Thus, purposes adverse jury whether the that statement shared this intent. Furthermore, credibility determination. depend- to make this inference willing was have made an jury that the could ed, jury saying the large part, whether credibility determination based June statements admit- adverse Simpson’s believed against solely goes on the June statements disclaiming but knowl- ting participation words, weight progressed of how matters In other the the edge purpose. or themselves, upon The June interviews depended of the inference trial. strength played jury, were to the contained credibili- which jury’s appraisal the notes, many by accusing the officers correctly jury statements ty. As lying April of time— in his statements. long period for a deliberated 561.) Furthermore, (A446, 484, days— over three approximately 28 hours verdict, and, emphasized point reaching prosecutor a few hours before jury. questioning was difference be- of the officers before asked whether there (“Were (A326, 328, always con- caused the death” and “purposely tween (A994), might that he have minimized his killing,” indicating that cerned “purposeful his minimization wrestling concept upon with the involvement based jury inter- prior of involvement denial purpose. views?”).) the war- argument, At counsel for oral reflects, sum, could conceded, although jury perhaps the record den credibility requisite adverse of its have made the support the State’s evidence April notwithstanding Kelly’s shared intent determination theory interviews, likely it much more based on an adverse purpose was police, acquitted to the Though especially relevant statements because charges having interesting jury as an element separate, to note of all it is trials specific cause the death of another. given any intent to Kelly, who had not material juror in allow a reasonable to convict on light not in fact so the the jury did do general Simpson, therefore, the officers and intent heavy emphasis placed crimes. April on lies. We prosecution is not entitled to relief as to those convic- admission of the therefore hold that the grant tions. in Accordingly, part we and not harmless as to April statements was deny part request for Simpson’s a writ required those convictions that es- of corpus. Simpson’s habeas convictions of intent to specific sential element a cause murder, murder, aggravated attempt- and murder, aggravated the death of ed murder are void. must still another — murder, and murder. This attempted serve the remainder of sentence im- finding when the error in is reinforced posed for aggravated on his convictions admitting the statements is com- April arson and felonious assault.11 admitting bined with the error in June together, viewed

20th statement. When IV. person these statements who ini- show tially above, but who then denied involvement For the forth reasons set we more steadily admitted to involvement GRANT IN DENY IN PART PART juror interview. A subsequent with each Simpson’s petition writ of for habeas cor- faced with progression this successive pus and REMAND to district court for involvement deeper revelations would proceedings opinion. consistent this with very extrapolate not have far to from to Simpson’s June 20th admissions WHITE, HELENE N. Judge, Circuit theory Remove purpose. State’s dissenting part, concurring part.

April June 20th statements and the state- I concur in majority opinion except ment, however, juror would have regard 16th the June statement. I leap to make a rather blind to infer the grant as to habeas relief this state- theory purpose solely State’s based ment as well. the June 16th statement. agree I majority with the However, when though we find the errors not statement, Simpson made the “Mmmm- crimes, harmless as to the intent specific I mmmm. ain’t up the same true done—nah—I messed gener- does not hold that,” I last time did two giving al intent variations aggravated convictions of arson “no,” of the word along accompanying and five counts of felonious assault. This negative body and then language, is so because June 16th state- followed up with the properly against ment was introduced statement “it [couldn’t] him. statement, help,” he standing unequivocally His admissions in that invoked his Mi- alone, than adequate rights.1 however, would be more to randa agree, I do not Judg- your rights, 11. willing Based on our review amended Officer: You waive (Al016 19), Entry appears talking ment it continue to us? — Simpson's Simpson: be revised sentence will seventeen I Mmmm-mmmm. ain’t done— years eight years (with up on each felonious assault nah —I messed time I did last — other, concurrently conviction run to each slight dismissive wave of his hand and aggravated plus years nine head) on the arson con- shake of his consecutively. viction to So, run we you Officer: want don’t to talk to us? properly leave it to the Ohio authorities You do or to talk to don’t want us? Simpson’s remaining recalculate sentence. Simpson: help I can’t ... mean ... ... ... Officer: mmm-hmm Simpson: you exchange The on June 16th I mean ... relevant took know what (silence) place of about over the course six minutes: to talk I do want to me you If [Officer]: for the officers permissible that it was you you must whatever to the issue.” advise later Miranda “eircle[ ] back 431.) against you say will be used (Opinion at can and that? Do understand court. its conclusion on majority bases 1) three rationales: Yeah. [Smith]: the offi- apply interrogation, here to consult You have [Officer]: “material Simpson any cers ask did not have lawyer with and to a lawyer a they “revisited” whether questions” until you’re being when present you rights, he wished to waive Miranda questioned. you Do understand that? 2) consented; after an offi- which Uh, to yeah. I’d like do that. [Smith]: “clarifying ques- may up cer follow Okay. [Officer]: of am- rights tions” an invocation is after [] States, v. 512 biguous, Davis United see 2350, L.Ed.2d U.S. 114 S.Ct. 129 you lawyer ... want a and If [Officer]: 3) (1994); suspect’s voluntary, a 362 and you’re pay lawyer to for one a unable after an invocation

unsolicited statements represent you appointed will be excluded, need not rights be cost, that? you free do understand Arizona, 477, 451 see v. 486 Edwards U.S. Okay. [Smith]: (1981). 9, 1880, n. 68 L.Ed.2d 378 101 S.Ct. to talk at you Do wish to me [Officer]: Simpson’s I Because invocation disagree. lawyer pres- a being this time without (or pre- of his to remain silent more right ent? cisely, of the invitation to his declination unequivocal, waive was I find right) no, uh, I and don’t know Yeah [Smith]: distinguishable Davis and Smith v. Illi- what, really. what’s nois, 91, 490, 105 83 469 U.S. S.Ct. You either [to Well. have [Officer]: (1984), 488 and con- controlling, L.Ed.2d time agree] to talk to me this without clude after questioning that the continued present you and if do lawyer being Simpson’s un- invocation of agree talk with me without a law- constitutional. yer can being present you stop any at

Although police Davis holds time you want to. constitutionally pose clarifying questions you I’ll talk to then. right. All [Smith]: after equivocal ambiguous invocation 93, 105 (emphasis See 469 at S.Ct. 490 U.S. clear rights, Smith makes that where original). ambiguous, clarifica- invocation is unnecessary majority tion and must The held the unam- questioning is Smith not be following biguous cease. Smith involved the ex- invocation could rendered 2 ambiguous change: questioning. continued Well, you, you up to It difference Smith con Officer: it’s whatever makes no going not. want to talk to us or We’re not request cerned for counsel this case anything your to twist arm or like that. right involves remain silent. Ber See Simpson: y'all want to talk What about? U.S.-, ghuis Thompkins, 560 basically talking what Officer: Just we’re — L.Ed.2d-(2010) (standard about now. determining when a the same for defendant continued, few min- conversation and a right remain silent and when a has invoked "So, utes the Officer asked: are later at defendant has invoked counsel gonna about or not?” talk to us Davis). issue guess” eventually Simpson responded "I signed a waiver form. 99-100, The courts below were able to con Id. at 105 S.Ct. 490. It is not Smith’s request strue counsel as contended that events or preced- nuances “ambiguous” only by looking to Smith’s ing Simpson’s initial refusal to waive his subsequent responses to continued rights rendered the equivocal. refusal Be- questioning by concluding cause Simpson’s refusal unequivocal, total,” “considered in Smith’s “state Davis’, like Smith’s and unlike there was ” Ill.2d, ments were equivocal. 102 at no ambiguity necessitating clarifying ques- Ill.Dec., .792, N.E.2d, at at tions, subsequent responses added); (emphasis see also 113 Ill. cannot retrospectively render his earlier Ill.Dec., App.3d, at 447 invocation equivocal. N.E.2d, at 559. line analysis This Smith also makes clear that it is irrele unprecedented and untenable. As Jus vant whether further questioning seeks below, emphasized tice Simon state “[a] “clarifying” or “material” information. ment either is such an assertion [of The post-invocation-of-rights questions in Ill.2d, right to or it is not.” counsel] 102 Smith were fact, also not “material.” In 375, Ill.Dec., 789, N.E.2d, at 80 at 466 at simply officer continued giving Smith nothing Where about the request Yet, his rights. Miranda the continued for counsel or the circumstances leading questions impermissible constituted “po up request to the ambig render it uous, lice-initiated all custodial questioning interrogation.” must cease. In circumstances, Smith, these 98, 105 an accused’s subse U.S. at 469 S.Ct. 490. quent only statements are relevant Lastly, reject I the notion although question whether the accused waived Simpson initially invoked rights, his he right he had invoked. Invocation moments validly later waived that invoca- waiver entirely and are distinct inqui tion. Smith years was decided three after ries, and the two must not be blurred by Edwards and did not view Smith’s subse- merging them together. quent responses as a waiver of previ- (footnote 97-98, 469 U.S. at 105 490 S.Ct. ously Rather, right. invoked the Smith omitted) (emphasis original). Although Court importance reaffirmed the of Ed- ruling, Smith was a narrow its limitations prohibition wards’ question- continued correspond to the instant circumstances: ing: Our decision is a narrow one. We do An accused in custody, “having ex- not decide the circumstances in which pressed his desire to deal with request accused’s for counsel may counsel, only through subject is not ambiguous be characterized as or further interrogation by the authorities equivocal as a result of preced- events until counsel has been made available to ing the request or of nuances inherent him,” validly unless he waives his earlier itself, request in the nor do we decide request for the assistance of counsel. consequences of such ambiguity or Arizona, U.S., Edwards v. 451 at 484- equivocation. only We hold under S.Ct., 101 at “rigid” 1885. This logical the clear prece- force of settled prophylactic rule, C., Fare v. Michael dent, postrequest an accused’s respons- 707, 719, 2560, 2569, 442 U.S. 99 S.Ct. 61 es to interrogation may further not be (1979), L.Ed.2d 197 embodies two dis- retrospective

used to cast doubt on the First, tinct inquiries. courts must de- clarity of the initial request itself. termine whether actually Such accused subsequent statements are rele- See, invoked only right vant to the distinct to counsel. question e.g., Arizona, U.S., waiver. Edwards v. supra, 451 at 448 (wheth- that a valid waiver emphasized have S.Ct.,

484-485, at 1884-1885 101 showing only for, be established “cannot his desire” “expressed er accused to, to further responded the assis- right accused] [the asserted” his “clearly Arizona, interrogation.” counsel); v. custodial police-initiated tance S.Ct., Arizona, U.S., 444-445, at U.S., 86 at 1612 v. 451 at Edwards 384 S.Ct., (whether “indicate[d] at 1885. accused process any stage at and manner 490; 98-99, at see also White Id. an attor- consult with he wish[ed] (7th Finkbeiner, F.2d Cir. Second, if the speaking”). ney before (“Courts 1979) (vacated grounds) on other counsel, right invoked his accused which follows soon have viewed waiver to fur- responses admit his courts request suspect.”).3 initial after the finding that questioning ther subsequent responses (a) with the initiated further discussions knowing constitute a questioning did not (b) intelligent- knowingly police, previously intelligent waiver of his invoked. Ed- right he had ly waived silent, it can- to remain invoked Arizona, U.S., at supra, 451 wards v. further fairly be said that he “initiated S.Ct., n. 9. n. at question- after police” with the discussions (footnote 94-95, 105 S.Ct. 469 U.S. invoking response ceased in to his ing had omitted). stressing the distinction be- rights. whether the questions tween the granted respect be The writ should subsequently it was invoked and whether all four statements. waived, explained: the Court keeping the two importance is manifest. Edwards inquiries distinct rule” that all “bright-line

set forth a must cease after an accused

questioning Stumes, v. 465 requests counsel. Solem SHANEBERGER, Richard 1338, 1343, 638, 646, 79 U.S. Petitioner-Appellant, (1984). In the absence of L.Ed.2d 579 the au v. bright-line prohibition, such a “over through “badgerfing]” thorities JONES, Respondent-Appellee. Kurt subtle, reaching” explicit or deliberate — No. 07-2211. wear might otherwise or unintentional — Appeals, States Court of United him to persuade the accused and down Sixth Circuit. notwithstanding incriminate himself request for counsel’s assistance. earlier 3, Argued: March 2010. Bradshaw, 462 Oregon v. U.S. July Decided and Filed: 2010. 2830, 2834, 77 L.Ed.2d S.Ct. Aug. Denied 2010. Rehearing C., U.S., (1983); Fare v. Michael S.Ct., respect at 2568. With inquiry, accordingly waiver we to the valid, Shatzer,-U.S.-, White, Maryland to be pre-Edwards case that concluded - - prohibit authorities from L.Ed.2d that Miranda did not S.Ct. initiating questioning the sus- (2010), renewed after court’s observation that the White attorney, of course pect requested an following attorney immediately re waiver light be- vacated in of Edwards. suspicious an intuitive and quest is remains waiver was the state must show that a cause logical point. intelligent, voluntary knowing, in order

Case Details

Case Name: Simpson v. Jackson

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 13, 2010

Citation: 615 F.3d 421

Docket Number: 08-3224

Court Abbreviation: 6th Cir.