UNITED STATES of America, Plaintiff-Appellee, v. David E. BROWN, Defendant-Appellant.
No. 10-6458.
United States Court of Appeals, Sixth Circuit.
Nov. 1, 2011.
661 F.3d 957
SUTTON, Circuit Judge.
The Honorable Robert Jonker, United States District Judge for the Western District of Michigan, sitting by designation.
There are at least two problems with this approach. First, the district court‘s evaluation of the nature and sufficiency of the evidence supporting Plaintiffs’ claims against the Kentucky Defendants went beyond the inquiry contemplated by the limited pleading-piercing exception recognized as appropriate where an undisputed factual inaccuracy or insufficiency in the plaintiff‘s claim against the in-state defendant is the basis of removal. The fact-based, summary-judgment-type inquiry contemplated in such a case is the inquiry that is necessary to bring the true undisputed facts to the court‘s attention. An inquiry into the facts is not permitted in ruling on a motion on the pleadings; therefore, some piercing of the pleadings and factual presentation must be permitted if the court is to be informed of undisputed facts that undermine the well-pleaded claim that is otherwise colorable on its face. This piercing permits consideration of such undisputed facts that negate the claim. It is not intended to provide an opportunity to test the sufficiency of the factual support for a plaintiff‘s claim, as is done in a Rule 56 motion.
This leads to the second problem. In rejecting Plaintiffs’ evidence as insufficient to overcome the Kentucky Defendants’ affidavits, the court went beyond the relevant inquiry—whether Plaintiffs have a colorable claim under Kentucky law—and instead inquired whether Plaintiffs had adequate evidentiary support for their claim, the traditional Rule 56 inquiry. But Rule 56 motions for summary judgment are decided after discovery, not shortly after filing. Plaintiffs were made subject to a higher standard by Defendants’ removal.
Here the district court effectively decided that there were no genuine issues of material fact on a motion to remand, before discovery. Had Defendants not removed the case, the sufficiency of Plaintiffs’ factual support would have been evaluated much later, after discovery.
Because there was no fraudulent joinder, there was no diversity. Thus, the district court lacked subject matter jurisdiction to address the merits of Plaintiffs’ claim. We therefore VACATE the district court‘s orders of dismissal, and remand for entry of an order remanding the case to state court.
SUTTON, Circuit Judge.
David Brown appeals his conviction and sentence for being a felon in possession of a firearm. We affirm.
I.
When a Glock .40 caliber pistol and a silver necklace disappeared from his home, Jason Helms suspected David Brown was the culprit. Detective Robert Harbison located Brown and brought him to the station for questioning. Harbison read Brown his Miranda rights and, after securing a written waiver, asked him about
Two months later, a federal grand jury indicted Brown for being a felon in possession of a firearm. After taking Brown back into custody, Detective Carl Maskew again read Brown his Miranda rights, and Brown again waived his rights in writing. After denying that he knew anything about the robbery, Brown told Maskew a different story: Brown claimed that two other individuals took the gun from Helms’ house and gave it to him. He then traded the gun to his cousin for methamphetamine. Brown again promised to help retrieve the gun.
Before trial, Brown moved to suppress both statements. Finding no evidence that the police “engaged in any sort of threatening or coercive behavior” or that Brown did not understand his rights, the district court denied the motion. The jury convicted Brown, but the district court granted his post-verdict motion for acquittal, holding that the only pieces of evidence linking him to the crime were his uncorroborated confessions, which could not sustain the conviction by themselves. The United States appealed and we reversed, holding that “sufficient independent evidence establishe[d] the trustworthiness of Brown‘s statements.” United States v. Brown, 617 F.3d 857, 859 (6th Cir.2010).
On remand, the district court concluded that Brown‘s three prior state convictions for aggravated burglary made him an armed career criminal, subjecting him to a mandatory minimum sentence of 180 months.
II.
Corroboration. With respect to his conviction, Brown seeks to relitigate whether sufficient evidence corroborated his confessions, but that ship has sailed. In the first appeal, we held that other evidence adequately corroborated Brown‘s confessions, 617 F.3d at 863-64, and if Brown thought our decision “overlooked or misapprehended” any questions “of law or fact,” he could have filed a petition for rehearing.
Suppression of Statements. Brown made two statements to police in which he confessed that, one way or another, he had possessed the gun that was stolen from Helms’ house. Brown made these statements two months apart, and the officers each time read the Miranda warnings to him and secured a written waiver, which “generally produce[s] a virtual ticket of admissibility.” Missouri v. Seibert, 542 U.S. 600, 609, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). Brown nevertheless argues that the district court should have suppressed these statements because his cognitive infirmities and the possibility that he was under the influence of drugs mean that he did not knowingly and intelligently waive his Miranda rights.
The district court found “nothing in the record whatsoever” suggesting that Brown “did not understand his legal rights” or “the gravity of his waiver of those rights,” R. 46 at 12, and Brown has not identified any evidence demonstrating clear error. The only evidence of cognitive impairments that Brown mentions is a psychological evaluation that the Bureau of Prisons performed to assess his competency to stand trial. Although the evaluation states that Brown has some “relatively mild intellectual limitations,” it found no “significant
As to drug use, Brown speculates that his status as an addict and his fidgeting during one of the interviews suggest that he might have been under the influence of methamphetamine when he made the statements. But Detectives Harbison and Maskew testified that Brown did not appear to be under the influence of drugs when they interviewed him. Brown‘s speculation—and that is all it is in the absence of any evidence on this score—does not show clear error in the district court‘s determination that he knowingly and intelligently waived his Miranda rights.
Brown also argues that his cognitive impairments and possible drug use rendered his waiver, and the confessions themselves, involuntary. But some kind of “coercive police activity” is required to establish that a waiver of Miranda rights, or a confession for that matter, was involuntary. Colorado v. Connelly, 479 U.S. 157, 167, 169-70, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The district court did not find, and Brown has not identified, any coercive or threatening behavior by the officers who took his statements. Brown contends only that he suffered “from a condition or deficiency that impaired his cognitive or volitional capacity,” but that “is never, by itself, sufficient to warrant the conclusion that his confession was involuntary for purposes of due process.” United States v. Newman, 889 F.2d 88, 94 (6th Cir.1989). “[S]ome element of police coercion” remains “necessary.” Id. In the absence of police coercion, we have affirmed the admission of confessions made by defendants who were actually (as opposed to possibly) under the influence of drugs, see, e.g., United States v. Dunn, 269 Fed.Appx. 567, 572-73 (6th Cir.2008); United States v. Chapman, 112 Fed.Appx. 469, 474 (6th Cir.2004), as well as confessions made by defendants who suffered from mental retardation, see, e.g., United States v. Macklin, 900 F.2d 948, 951-52 (6th Cir.1990). The district court did not err in admitting Brown‘s statements.
Armed Career Criminal Act. The district court correctly determined that Brown qualified as an armed career criminal. As relevant here, ACCA imposes a mandatory minimum sentence of 180 months on anyone who is convicted of being a felon in possession of a firearm and has three previous convictions for “violent felon[ies],” which the Act defines to include “burglary.”
Constitutionality of ACCA in this setting. Brown argues that ACCA‘s mandatory minimum as applied to him violates his Fifth Amendment right to due process and equal protection and his Eighth Amendment right to be spared cruel and unusual punishment. We have seen this movie before, and each time it ends badly for the defendant. See, e.g., United States v. Moore, 643 F.3d 451, 456 (6th Cir.2011); United States v. Jones, 52 Fed.Appx. 244, 247 (6th Cir.2002); United States v. Warren, 973 F.2d 1304, 1311 (6th Cir.1992). All for good reason: “Congress has the power to define criminal punishments without giving the courts any sentencing discretion,” Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991), and mandatory prison sentences are not cruel and unusual, Harmelin v. Michigan, 501 U.S. 957, 995-96, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). In the teeth of these precedents Brown has not identified, nor have we found, any decision from any court invalidating the application of ACCA‘s mandatory minimum to an individual on constitutional grounds. Brown gives no good reason for making this case the first.
III.
For these reasons, we affirm.