Andrew Maurice Randolph v. Matt Macauley

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 25a0291p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ANDREW MAURICE RANDOLPH,

│

Petitioner-Appellant, │

> No. 24-1202

│

v. │

│

MATT MACAULEY, Warden, │

Respondent-Appellee. │

┘

Appeal from the United States District Court for the Eastern District of Michigan at Flint.

No. 4:21-cv-10456—Shalina D. Kumar, District Judge.

Argued: May 16, 2025

Decided and Filed: October 21, 2025

Before: THAPAR, BUSH, and MATHIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Eve Brensike Primus, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, for

Appellant. Scott R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellee. ON BRIEF: Eve Brensike Primus, UNIVERSITY OF

MICHIGAN, Ann Arbor, Michigan, Michael L. Mittlestat, STATE APPELLATE DEFENDER

OFFICE, Detroit, Michigan, for Appellant. Scott R. Shimkus, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

BUSH, J., delivered the opinion of the court in which THAPAR, J., concurs except for

Part III.C., and MATHIS, J., concurs except for Part II.B. THAPAR (pp. 16–22) and MATHIS,

(pp. 23–26), JJ., delivered separate opinions concurring in part and in the judgment.

No. 24-1202 Randolph v. Macauley Page 2

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. Andrew Maurice Randolph was convicted of second-

degree murder and weapons charges in state court and sentenced to life in prison. The case

hinged largely on ammunition found in his father’s home and a firearm found in his brother’s

home. Randolph’s trial counsel did not move to suppress this evidence. In state court, Randolph

contended that the failure to file the suppression motion and several other alleged deficiencies

rendered trial counsel ineffective. The state courts rejected his claims, and he now seeks federal

habeas relief.

Randolph now comes before our court asserting four bases for habeas relief. But after

seeking a COA from the district court, a single judge of our court, a panel, and the en banc court

Randolph comes before our court asserting four bases for habeas relief. But after seeking a COA

from the district court, a single judge of our court, a panel, and the en banc court, this court

granted the COA on only one of his grounds for relief. Despite this denial, he briefed all four

issues anyway and asked us to expand the COA.

Mindful of our limited role under AEDPA, we AFFIRM the district court’s denial of the

petition because the state court’s factual findings were not unreasonable, and its legal

conclusions were neither contrary to nor an unreasonable application of Supreme Court

precedent. We also DENY the motion to expand the COA because we, as a panel of this court,

cannot and will not reconsider the decisions of the motions panel and the en banc court.

I. Background

A. Factual Background

In 2012, Randolph lived with his girlfriend, Kanisha Fant. On December 9, 2012,

Randolph and Fant had several arguments, and Randolph threatened Fant’s family. People v.

Randolph, 917 N.W.2d 249, 250–51 (Mich. 2018) (Randolph II). At this point, Fant decided to

end the relationship with Randolph, and she told him to pack his things. Early the next morning,

No. 24-1202 Randolph v. Macauley Page 3

Fant and Randolph got into another argument, and Randolph struck Fant. Fant responded by

grabbing a steak knife out of the drawer and ordered Randolph to leave while telling her son to

call 911. Randolph then ran from the house, leaving behind all of his belongings. Police officers,

Fant’s mother, and the mother’s fiancé (Collin Miller) arrived at Fant’s home, and law

enforcement began the investigation. Miller and Fant’s mother then took Randolph’s belongings

to Randolph’s father (Alphonso Taylor).

Later that night, gunfire rang out at Fant’s home. Fant’s mother was shot and killed.

Randolph was arrested soon after.

Officers then went to Taylor’s house, where Taylor consented to a search. They found

firearm ammunition in Randolph’s bags. Randolph was a felon, so police sought and received an

arrest warrant for felon in possession of such ammunition. Randolph was arrested at his

brother’s house. Based on the brother’s parolee status, officers searched his home pursuant to

the conditions of his parole. This search found a handgun that turned out to be the murder

weapon.

B. Procedural History

After a trial in state court, a jury convicted Randolph of second-degree murder and

firearms offenses. People v. Randolph, No. 321551, 2015 WL 7574328, at *1 (Mich. Ct. App.

Nov. 24, 2015) (per curiam) (Randolph I). As is relevant here, Randolph contended on appeal

that his trial counsel was ineffective for failing to move to suppress the gun and ammunition.

Randolph argued that the motion to suppress would have succeeded because Taylor could not

have consented to the search, and the police did not have a warrant to search Randolph’s

belongings. In Randolph’s first appeal, the Michigan Court of Appeals rejected this claim

without explanation. See Randolph I, 2015 WL 7574328, at *10. The Supreme Court of

Michigan then reversed in part and remanded for unrelated reasons. Randolph II, 917 N.W.2d at

16. On remand, the Michigan Court of Appeals affirmed the conviction because Randolph failed

to demonstrate that he subjectively held an objectively reasonable expectation of privacy.

People v. Randolph, No. 321551, 2019 WL 286678, at *7 (Mich. Ct. App. Jan. 22, 2019) (per

No. 24-1202 Randolph v. Macauley Page 4

curiam) (Randolph III). The Supreme Court of Michigan denied leave to appeal. People v.

Randolph, 949 N.W.2d 714 (Mich. 2020) (Randolph IV).

Randolph then petitioned for a writ of habeas corpus in the Eastern District of Michigan.

He claimed that his trial counsel was constitutionally ineffective for four reasons: (1) trial

counsel failed to object to testimony about gunshot residue; (2) trial counsel failed to move to

suppress the firearm and ammunition; (3) trial counsel failed to object to certain hearsay

testimony; and (4) trial counsel failed to object to certain character evidence.

The district court denied the writ. The district court noted that trial counsel did object to

the testimony about the gunshot residue and that, in any event, trial counsel would have had valid

strategic reasons for declining to object. The district court determined that the motion to

suppress the firearm and the ammunition would have failed because Randolph would not have

had standing to make the objection, meaning that trial counsel’s failure to file the motion to

suppress was not ineffective. As to the failure to make the hearsay objection, the district court

found that the testimony would have been admissible. Finally, the district court concluded that

trial counsel’s failure to object to the admissibility of the character evidence was not ineffective

because trial counsel wanted to use the evidence to discredit the State’s case, and that was a valid

strategic decision. The district court declined to issue a COA.

Randolph then came to this court seeking a COA. A single judge denied the COA.

Randolph next sought panel rehearing and rehearing en banc. A panel granted rehearing in part,

issuing the COA to review Randolph’s claim “that trial counsel was ineffective for failing to

move to suppress evidence obtained from a search of his belongings without his consent” but

denying the COA “as to the other claims.” 6th Cir. ECF Doc. 18 at 1. Finally, Randolph sought

rehearing en banc, which was denied.

To sum up, Randolph asked for a COA four times, and the COA was granted as to only

one claim. Despite this, in his merits briefing, Randolph now asks the merits panel to expand the

COA.

No. 24-1202 Randolph v. Macauley Page 5

II. Scope of Review

Before we decide the merits of Randolph’s case, we must determine the appropriate

scope of this appeal. Recall that Randolph asserts four grounds for relief: that trial counsel failed

to (1) object to testimony about gunshot residue, (2) move to suppress the firearm and

ammunition, (3) object to certain hearsay testimony, and (4) object to certain character evidence.

Within the second one, Randolph asserts two theories: (1) that the searches violated Randolph’s

reasonable expectation of privacy, which we will call “the Katz theory”1; and (2) that the

searches constituted an unreasonable trespass on his property, which we will call “the Jones

theory.”2 And recall that, after en banc review, our court granted the COA only on the

suppression issue.

We will consider only the Katz theory. Randolph failed to present the Jones theory to the

state courts, so that claim fails for lack of exhaustion. And because there is neither a mechanism

nor a basis for expanding the COA at this point, we cannot review the remaining claims.

A. Exhaustion of the Jones Theory

Federal courts cannot grant a writ of habeas corpus to a state prisoner unless “the

applicant has exhausted the remedies available in” state court. 28 U.S.C. § 2254(b)(1)(A). A

claim must be “fairly presented to the state courts. This includes a requirement that the applicant

present the issue both to the state court of appeals and the state supreme court.” Wagner v.

Smith, 581 F.3d 410, 414 (6th Cir. 2009) (cleaned up). The prisoner “must have argued the

claim’s factual and legal basis at each level of the state court system.” Whitman v. Gray, 103

F.4th 1235, 1238 (6th Cir. 2024), cert. denied sub nom. Whitman v. Smith, 145 S. Ct. 1060

(2025).

We have reviewed the record in the state courts, and we do not see even a single citation

to Jones or any discussion of that theory in the state court briefing. We cannot say that this

1Katz v. United States, 389 U.S. 347 (1967).

2United States v. Jones, 565 U.S. 400 (2012).

No. 24-1202 Randolph v. Macauley Page 6

theory was “fairly presented to the state courts” without any discussion of the theory in

Randolph’s state court briefing. Wagner, 581 F.3d at 414.

At oral argument, Randolph tried to shoehorn the Jones theory into this case by relying

on Miller v. Genovese, 994 F.3d 734 (6th Cir. 2021). There, the prisoner argued that the state

courts violated the Confrontation Clause by admitting a witness’s testimony on direct at a prior

trial while excluding the cross-examination of that same witness. Id. at 738–39. The State

argued that, because the prisoner presented only a theory invoking the requirement in Crawford3

that the defendant be allowed to cross-examine that absent witness, the prisoner could not rely on

the holding of Van Arsdall4 that allows a defendant to conduct the cross-examination necessary

to demonstrate a witness’s bias. Id. at 743.

But Miller provides no such support. The Van Arsdall rule is a narrower formulation of

the Crawford rule. Put differently, if the Confrontation Clause requires that the defendant have a

chance to cross-examine a witness generally, then it necessarily follows that the Confrontation

Clause will require that the defendant have a chance to cross-examine a witness to determine the

witness’s bias. In Miller, then, we held that a prisoner exhausts a claim that he was denied a

chance to cross-examine a witness for bias when he argues that he was denied the opportunity to

cross-examine the witness at all because the former is fundamentally the same as the latter.

Here, though, the Jones theory and the Katz theory are two different and independent

claims. The Katz theory presumes that Randolph retained his expectation of privacy when his

belongings went to Taylor’s house and that Taylor could not waive it for Randolph. Meanwhile,

the Jones theory presumes that the “police physically intruded on [Randolph’s] personal

belongings.” Appellant’s Brief at 38.

Unlike in Miller, the claims here do not rise and fall together. We could imagine a

situation where someone lacks a reasonable expectation of privacy but the government would be

trespassing anyway—perhaps if a woman’s handbag is left open on the floor where the officers

can see into it but cannot search it without physically reaching into the bag. As a result, the

3Crawford v. Washington, 541 U.S. 36 (2004).

4Delaware v. Van Arsdall, 475 U.S. 673 (1986).

No. 24-1202 Randolph v. Macauley Page 7

Jones theory is independent of the Katz theory and should have been exhausted. But the Jones

theory was not raised in the state courts. We therefore will not consider it any further.

B. Claims Outside the Scope of the Certificate of Appealability

We now move to the motion to expand the COA. Randolph asked for a COA four times

from this court and the district court. After the district court, a single judge of this court, a

motions panel from this court, and the en banc court all reviewed the application, we agreed to

grant the COA on just one claim: that trial counsel was ineffective because he did not move to

suppress the firearm and ammunition. We explicitly denied the COA on all other bases. Despite

this, Randolph now asks the merits panel for a COA, essentially making this his fifth application

for a COA. We deny the request.

We have not considered the question of whether the merits panel can expand a COA to

include issues for which review has already been denied,5 but four considerations convince us we

lack that authority. First, neither AEDPA nor our local rules provide a mechanism for a merits

panel to reconsider the denial of a COA. Second, the law-of-the-case doctrine precludes us from

reconsidering matters already decided. Third, merits panels cannot question the rulings of the en

banc court. Fourth, even circuits that would allow this maneuver would deny the motion.

We acknowledge the case law from our sister circuits suggesting that a merits panel can

reconsider a motions panel’s decision to deny the COA, see Villot v. Varner, 373 F.3d 327, 337

n.13 (3d Cir. 2004); Olivas v. Neven, 329 F. App’x 70, 73 (9th Cir. 2009), but we do not find it

5Randolph cites Post v. Bradshaw, 621 F.3d 406 (6th Cir. 2010), but it provides no support for his request.

In Post, we denied the appellant’s motion to expand the COA, but the State later withdrew its opposition, so this

court deemed the motion impliedly granted. Id. at 412–13. That says nothing about the very different situation we

have here, where the State has consistently opposed the requested expansion of the COA and this court has

consistently denied it.

Nor does Kraus v. Taylor, relied upon by Judge Mathis, support the idea that a merits panel can expand the

COA once a motions panel has denied rehearing on the merits of a COA expansion request. See 715 F.3d 589, 594

(6th Cir. 2013). In Kraus, the motions panel had denied a rehearing request to expand the COA simply because the

request was untimely. Id. at 594. The merits panel treated the renewed request as a petition for panel rehearing of

the timeliness determination, which it then granted and reconsidered the denial of the COA decision. See id. The

case did not involve a situation where, as here, the motions panel actually ruled on the merits of the COA expansion

request as the basis for its denial of rehearing. Randolph does not seek rehearing of the motions panel’s timeliness

ruling; he seeks yet another review of the very substantive issue raised in a rehearing petition that the motions panel

denied. Specifically, this earlier panel expressly denied panel rehearing on the application for a COA outside of the

Katz theory. So Kraus provides no support for expanding the COA, either.

No. 24-1202 Randolph v. Macauley Page 8

persuasive for two reasons. First, those cases relied on local rules that we do not have. Second,

AEDPA’s text and structure preclude letting the merits panel expand a COA.

To start, in Villot and Olivas, the Third and Ninth Circuits relied on local rules to hold

that the merits panel can expand the COA. See Villot, 373 F.3d at 337 n.13 (citing 3d Cir. App.

R. 22.1(b)); Olivas, 329 F. App’x at 73 (citing 9th Cir. R. 22-1(e)). In the Third Circuit, “the

merits panel may expand” the COA “as required in the circumstances of a particular case.” 3d

Cir. App. R. 22.1(b). Meanwhile, in the Ninth Circuit, an appellant can raise issues outside the

scope of the COA, and they “will be addressed by the merits panel to such extent as it deems

appropriate.” 9th Cir. R. 22-1(e). Our Local Rules contain no such provision.6 See 6th Cir. R.

22. Accordingly, there is no means for a Sixth Circuit merits panel to expand a COA. Cf.

Bittner v. United States, 598 U.S. 85, 94 (2023) (“When Congress includes particular language in

one section of a statute but omits it from a neighbor, we normally understand that difference in

language to convey a difference in meaning (expressio unius est exclusio alterius).”).

Additionally, the text of AEDPA states that a COA “shall indicate [the] specific issue or

issues” that the petitioner may address on appeal. 28 U.S.C. § 2253(c)(3). This makes clear that

a merits panel may not consider issues outside the scope of the COA. And regardless of whether

§ 2253(c)(3) is jurisdictional, it is still mandatory when invoked by the opposing party (as it was

here). Gonzalez v. Thaler, 565 U.S. 134, 146 (2012) (noting that “a timely objection” to

consideration of an issue outside the scope of the COA “can[not] be ignored”); see also Pillow v.

Burton, 852 F. App’x 986, 991 (6th Cir. 2021). The State argued that we should not consider

any matters outside the scope of the COA. Given this objection, we must respect the guardrails

around the scope of our review established by the COA approved by the motions panel.

At three levels of appellate review—by a single judge, the motions panel, and the en banc

court—the conclusion was unanimous that the COA should be limited to the single search-and-

6Judge Mathis suggests that we do have a mechanism for expanding COAs because motions panels are not

necessarily binding on us, but the only case he relies on for that proposition described two mechanisms available for

reconsidering a motions panel’s decision—a petition for panel rehearing or rehearing en banc. See Wallace v.

FedEx Corp., 764 F.3d 571, 583 (6th Cir. 2014). Not only did Randolph exhaust both of those options in this case,

but Wallace actually undermines Judge Mathis’s position because Wallace explicitly contemplates the need for a

mechanism through which we could review a motions panel’s decision. And, unlike the Third and Ninth Circuits,

we do not have such a mechanism.

No. 24-1202 Randolph v. Macauley Page 9

seizure issue. The only remaining option to expand the COA was for Randolph to seek relief

from the Supreme Court. See Hohn v. United States, 524 U.S. 236, 238–39 (1998); see also

§ 2253(c)(1)(A). He did not do that, so we, as a merits panel, now cannot consider any

arguments objected to by the State that are outside the scope of the COA.

AEDPA’s structure reinforces our holding.7 At its core, AEDPA is designed to limit a

state prisoner’s ability to seek habeas relief from the federal courts. That is why a prisoner must

exhaust his state court remedies, § 2254(b), has only one year to file his petition, § 2244(d)(1),

and generally cannot file a second petition, § 2244(b), or claim that habeas counsel was

ineffective, § 2254(i). And, most importantly for our purposes, it is why a prisoner cannot

appeal the denial of a writ of habeas corpus without first seeking a COA. § 2253(b). If we were

to conclude that a prisoner could ask the merits panel to expand the COA, then there would be

little reason for the motions panel because all arguments would end up proceeding to the merits

panel. At some point, the challenges to a prisoner’s conviction must come to an end. See

Jimenez v. Quarterman, 555 U.S. 113, 120–21 (2009) (discussing AEDPA’s underlying goals of

achieving finality in convictions). One of the ways AEDPA seeks to achieve this is by forcing a

prisoner seeking leave to present an argument to the court of appeals before merits briefing

begins. We, therefore, hold that AEDPA does not allow a prisoner to ask the merits panel to

expand the COA.

Additionally, the law-of-the-case doctrine precludes the relief Randolph seeks. “The law

of the case [sic] doctrine provides that when a court decides upon a rule of law, that decision

should continue to govern the same issues in subsequent stages in the same case. Put another

way, the law-of-the-case doctrine precludes reconsideration of issues decided at an earlier stage

of the case.” Daunt v. Benson, 999 F.3d 299, 308 (6th Cir. 2021) (cleaned up). And a motions

panel’s decisions will ordinarily be the law of the case: “Later panels cannot simply choose to

disregard motions-panel decisions, and if a litigant wishes to challenge a motions panel’s

7It is not sufficient to argue, as does Judge Mathis, that because AEDPA does not expressly deprive merits

panels of the ability to expand COAs, we have that ability. See Mathis Concurrence at 24. His logic works both

ways: because AEDPA does not expressly grant us the authority to expand COAs, we necessarily lack that

authority. And if anything, we think the latter interpretation of AEDPA would most faithfully apply the Supreme

Court’s guidance on statutory interpretation. See West Virginia v. EPA, 597 U.S. 697, 724–25 (2022) (explaining

that extraordinary grants of power must be supported by clear language).

No. 24-1202 Randolph v. Macauley Page 10

decision on a dispositive motion, the proper course of action is to request panel rehearing or

rehearing en banc.” Wallace v. FedEx Corp., 764 F.3d 571, 583 (6th Cir. 2014).

The issue is not whether law-of-the-case doctrine applies—it does because we are being

asked to reconsider a decision from a prior stage of the case. See, e.g., Rouse v. DaimlerChrysler

Corp., 300 F.3d 711, 715 (6th Cir. 2002); Edmonds v. Smith, 922 F.3d 737, 739 (6th Cir. 2019).

The only question is whether we should disregard the law of the case for one reason or another.

See Hanover Ins. Co. v. Am. Eng’g Co., 105 F.3d 306, 312 (6th Cir. 1997). We are aware of no

explanation as to why Randolph’s request to expand the COA or any other would constitute one

of the circumstances listed in Hanover Insurance.

Here, a motions panel considered whether to grant the COA. In so doing, the motions

panel considered whether Randolph could “demonstrate ‘that jurists of reason could disagree

with the district court’s resolution of his constitutional claims or that jurists could conclude the

issues presented are adequate to deserve encouragement to proceed further.’” Dennis v. Burgess,

131 F.4th 537, 539 (6th Cir. 2025) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).

Randolph now asks the merits panel for the same relief. The law-of-the-case doctrine exists

because “courts generally refuse to reopen what has been decided.” Musacchio v. United States,

577 U.S. 237, 245 (2016) (quoting Messenger v. Anderson, 225 U.S. 436, 444 (1912)). We do

not see why now should be any different. A single judge, a motions panel, and the en banc court

granted the COA on a single issue and nothing else: whether trial counsel was ineffective for

failing to move to suppress the firearm and ammunition. Law-of-the-case bars us from

reopening that COA decision.

This is particularly true because the en banc court declined to expand the COA in this

case. The en banc court sets the law of the circuit, and en banc decisions supersede panel

decisions. See, e.g., Wright v. Spaulding, 939 F.3d 695, 700 (6th Cir. 2019) (discussing how the

en banc court can overrule panel opinions); Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 7 F.4th

478, 506 (6th Cir. 2021) (en banc) (Moore, J., dissenting) (“[A]fter all, a panel decision . . . does

not bind the en banc court.”).8 Our merits panels cannot reconsider prior panel decisions. See,

8Abrogated by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

No. 24-1202 Randolph v. Macauley Page 11

e.g., United States v. McKinnie, 24 F.4th 583, 589 (6th Cir. 2022). It necessarily follows that

merits panels cannot reconsider en banc decisions.

Finally, we note that even the circuits that would allow a merits panel to reconsider the

denial of a COA likely would not do so here. The Third Circuit has explained that “a merits

panel should ‘not lightly overturn a decision made by a motions panel during the course of the

same appeal.’” Duka v. United States, 27 F.4th 189, 196 (3d Cir. 2022) (quoting Council Tree

Commc’ns, Inc. v. FCC, 503 F.3d 284, 292 (3d Cir. 2007)). So, when a prisoner “present[s]…a

nearly identical brief to the one they filed with the motions panel,” the Third Circuit will not

expand the COA. Id. As in Duka, Randolph’s brief on the merits is substantively identical to his

petition for rehearing en banc. Without any materially new argument explaining why the court

was wrong to deny the COA the first four times, we see no reason why we should revisit that

conclusion now.

* * *

We therefore hold that a merits panel of this court lacks the authority to expand a COA

beyond what was granted by the motions panel and deny Randolph’s request to expand the COA.

III. Analysis

We now turn to the merits. We conclude that the state court’s rulings on the Katz theory

were reasonable as a matter of fact and law and affirm the district court.

A. Standard of Review

We review the district court’s factual findings for clear error and its legal conclusions de

novo. E.g., Cvijetinovic v. Eberlin, 617 F.3d 833, 836 (6th Cir. 2010). Under AEDPA, we must

deny the writ unless the state court’s decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme court of the United

States” or “was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2). If, however, the state

court’s decision was based on unreasonable factual findings, we review the state court decision

de novo. See Rice v. White, 660 F.3d 242, 257 (6th Cir. 2011). We review the last reasoned

No. 24-1202 Randolph v. Macauley Page 12

decision from the state courts, see Wilson v. Sellers, 584 U.S. 122, 125–26 (2018); here, that is

the 2019 Michigan Court of Appeals decision.

B. The State Court’s Factual Conclusions

We start by reviewing the state court’s factual findings because our conclusions about

them will guide our legal analysis. When we review the state court’s factual findings under

AEDPA, we ask whether they are “unreasonable…in light of the evidence presented in the State

court proceeding.” § 2254(d)(2). “In other words, state court factual findings are presumed

correct and federal courts may displace them only when the findings are shown to be ‘objectively

unreasonable by clear and convincing evidence.’” Hodge v. Plappert, 136 F.4th 648, 666 (6th

Cir. 2025) (en banc) (quoting Miller-El v. Cockrell, 537 U.S. 322, 341 (2003)). This is “a

substantially higher threshold for obtaining relief” than arguing that the state court’s factual

findings were “incorrect.” Hale v. Cool, 122 F.4th 637, 645 (6th Cir. 2024) (quoting Shoop v.

Twyford, 596 U.S. 811, 819 (2022)) (quotation marks omitted). A state court’s factual findings

are objectively unreasonable only if the prisoner’s interpretation of the facts is “the only

conclusion that can be fairly drawn” from the state court record. Rice v. White, 660 F.3d 242,

254 (6th Cir. 2011). Finally, the prisoner “must show that the unreasonable factual

determination was the but-for cause of the state court’s decision.” Hale, 122 F.4th at 645

(quoting Rice, 660 F.3d at 250) (quotation marks omitted).

Randolph contests two of the state court’s factual determinations:

• That Randolph left Fant’s house because he feared the police. See

Randolph III, 2019 WL 286678, at *7 (“Put in the plainest terms,

defendant’s argument depends on his presupposition that after beating

Fant up, then fleeing from her house (and leaving his bags behind in his

haste to avoid the police), it was objectively reasonable for him to expect

that those bags and their contents would be left where he had placed them,

undisturbed.”).

• That Randolph failed to timely retrieve his belongings. See Randolph III,

2019 WL 286678, at *7 (“In any event, . . . there is no evidence that he

had a subjective expectation that the contents of his bags would remain

private after he left them and failed, on a timely basis, to come back and

retrieve them.”).

No. 24-1202 Randolph v. Macauley Page 13

We are not persuaded. Randolph’s factual conclusions may well be reasonable interpretations of

the evidence, but the state court’s interpretations of the evidence are just as reasonable as

Randolph’s, if not more so. Additionally, the state court’s factual findings were not the but-for

cause of its decision.

Start with the state court’s finding that Randolph left Fant’s house because he feared the

police. Randolph asserts that this factual finding is unreasonable because Randolph “left” Fant’s

house “before 911 was called” and after Randolph “promised to leave” if Fant dropped the knife.

Appellant’s Brief at 35. But Fant told her son to call 911 before Randolph left. Thus, the

prospect of being caught by the police was already in play by the time Randolph left.

To be sure, Randolph left right after Fant dropped the knife, as promised, but Randolph

took the knife with him after he left. That Randolph took the knife with him could suggest that

he was preparing for a confrontation with someone. See District of Columbia v. Heller, 554 U.S.

570, 584 (2008) (carrying a weapon is usually done “for a particular purpose—confrontation”).

Accordingly, we disagree with Randolph that leaving out of fear of Fant is the only

conclusion we can fairly draw from this record. We therefore conclude that the state court’s

factual findings on this score were not unreasonable under AEDPA.

We come to the same conclusion for Randolph’s contention that he timely sought to

collect his belongings from Fant. Randolph relies heavily on his repeated calls to Fant after he

left to talk about retrieving his stuff, suggesting that this proved he wanted to retain control over

his belongings. But, in the next paragraph, Randolph asserts that he was Fant’s co-tenant. Under

Michigan law, a co-tenant has the absolute right to enter the property at any time, see, e.g.,

Quinlan Inv. Co. v. Meehan Co., 430 N.W.2d 805, 806–07 (Mich. Ct. App. 1988) (per curiam),

so there is no reason he would have needed to call Fant about retrieving the belongings.

Moreover, Randolph could have retrieved the belongings when he left or soon after—Fant was

not a threat to Randolph after dropping the knife. Given these facts, we cannot say that the state

court’s factual findings on this score were unreasonable.

Furthermore, the state court would have made the same decision even without these

factual findings, so Randolph cannot obtain relief under § 2254(d)(2). See Hale, 122 F.4th at

No. 24-1202 Randolph v. Macauley Page 14

645. The state court said that Randolph provided no evidence that he subjectively held the

expectation of privacy that he asserts before us. See Randolph III, 2019 WL 286678, at *7.

Meanwhile, the factual findings that Randolph challenges relate to the state court’s determination

of whether Randolph had an objectively reasonable expectation of privacy. The Katz test

includes both a subjective and objective prong. See, e.g., United States v. Rogers, 97 F.4th 1038,

1041–42 (6th Cir. 2024), cert. denied, 145 S. Ct. 1424 (2025). Because the state court would

have held that Randolph did not prove that he subjectively held a reasonable expectation of

privacy, it would have made the same decision anyway.

Therefore, the state court’s factual findings were not unreasonable under AEDPA, so its

legal conclusions are subject to AEDPA deference.9

C. The State Court’s Legal Conclusions

On federal habeas review, a state court’s decision to deny relief will be disturbed only if

it “was contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme court of the United States.” 28 U.S.C. § 2254(d)(1). “In this

context, ‘clearly established law’ signifies ‘the holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions.’” Howes v. Fields, 565 U.S. 499, 505 (2012) (quoting Williams v.

Taylor, 529 U.S. 362, 412 (2000)). That means a prisoner cannot receive relief under AEDPA if

“‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington

v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Rather, “[t]he state court decision must be ‘so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded

disagreement.’” Woods v. Etherton, 578 U.S. 113, 117 (2016) (per curiam) (quoting White v.

Woodall, 572 U.S. 415, 420 (2014)). Finally, state court’s decision “is not an unreasonable

application of clearly established Federal law” if the state court “decline[s] to apply a specific

9Randolph purports to contest the state court’s claim that the .38-caliber ammunition “provided an

independent basis for obtaining a warrant,” Appellant’s Brief at 39, but the state court said no such thing. Instead,

the state court said that Randolph waived any argument that the ammunition would not have provided an

independent basis for obtaining the warrant. See Randolph III, 2019 WL 286678, at *6. We therefore need not

address the argument because it was not exhausted. See 28 U.S.C. § 2254(b)(1)(A); Wagner v. Smith, 581 F.3d 410,

414 (6th Cir. 2009).

No. 24-1202 Randolph v. Macauley Page 15

legal rule that has not been squarely established by” the Supreme Court. Knowles v. Mirzayance,

556 U.S. 111, 122 (2009) (quotation marks omitted).

The parties extensively addressed whether the searches for the firearm and ammunition

were constitutional, but that issue is not dispositive for our AEDPA review. In arguing that the

search was unconstitutional, Randolph relies entirely on our decision in United States v. Waller,

426 F.3d 838 (6th Cir. 2005), and a handful of other Sixth Circuit decisions. Although his

argument might have some force if we were reviewing the case de novo, we are applying

AEDPA’s standard of review. And a prisoner cannot demonstrate entitlement to habeas relief

simply by arguing that the state court rejected lower federal court case law. Johnson v. Williams,

568 U.S. 289, 305 (2013).10 Instead, the state courts are required only to reasonably apply

Supreme Court precedent, see, e.g., id.; see also Carruthers v. Mays, 889 F.3d 273, 290 (6th Cir.

2018), and Randolph points to no Supreme Court precedent that was misapplied. Therefore, the

state court’s rulings are not unreasonable under AEDPA as a matter of law.

IV. Conclusion

We AFFIRM the district court’s decision and DENY the motion to expand the COA.

10 We question whether Randolph would have been able to show that his trial counsel was deficient.

Although we do not need to squarely address the issue in this case, we would hesitate to call trial counsel ineffective

for failing to cite Waller to the state courts. Because we cannot bind the Michigan courts, they could have simply

rejected Waller, and Randolph would be back to square one. See, e.g., People v. Roy, 12 N.W.3d 183, 188 (Mich.

Ct. App.) (rejecting lower federal court precedent), appeal denied, 994 N.W.2d 265 (Mich. 2023); Johnson v.

Williams, 568 U.S. 289, 305 (2013). So failing to cite Waller probably is not constitutionally deficient.

No. 24-1202 Randolph v. Macauley Page 16

__________________

CONCURRENCE

__________________

THAPAR, Circuit Judge, concurring. Andrew Randolph murdered his girlfriend’s

mother by shooting into her house. Randolph believes that his attorney should have moved to

suppress the murder weapon. He claims the weapon was the fruit of an unlawful search that

occurred two months before its discovery. Those two months severed any causal link between

the first search and the second. Thus, while I agree with the majority’s thoughtful opinion, I

would decide the Fourth Amendment issue on attenuation grounds.

I.

In December 2012, Andrew Randolph lived with his girlfriend, Kanisha Fant. They had

a “very tumultuous” relationship marked by frequent arguments. R. 6-8, Pg. ID 702. Randolph

often physically abused Fant—sometimes choking her until she almost lost consciousness.

During one marathon argument, Randolph began packing his clothes and shoes into four

or five garbage bags. The argument eventually became physical when Randolph slapped Fant

across the face—in the presence of Fant’s four young children. To defend herself, Fant ran to

the kitchen and grabbed a small steak knife as she begged him to “just leave me alone” and “just

leave.” Id. at 718. But Randolph kept advancing towards her. He punched Fant in the head and

grabbed her arm, attempting to wrestle the knife out of her grip. Randolph then placed her in a

chokehold that stopped her from breathing. Randolph commanded, “[J]ust drop the knife and I’ll

leave.” Id. at 720. Fant complied, and Randolph fled the house. In the aftermath of this fight,

Fant’s family brought the bags of Randolph’s belongings to the home of his father, Alphonso

Taylor.

But Randolph was still itching to “do somethin[g] about” his fight with his girlfriend.

R. 6-10, Pg. ID 823. That day, he repeatedly called Fant’s mother, “threaten[ing] to kill the

family.” Id. at 790–91. Fant’s mother warned a relative that “we better watch out ‘cause he said

he’s goin’ get us, he’s goin’ kill us, he’s goin’ kill us.” Id. at 792. And she wasn’t exaggerating.

That evening, Randolph went to Fant’s mother’s house and began shooting indiscriminately.

No. 24-1202 Randolph v. Macauley Page 17

Tragically, one of the bullets struck Fant’s mother in the neck, killing her. Police arrested

Randolph at the scene but later released him.

Later that evening, police visited Taylor’s house to recover Randolph’s clothes and shoes.

Taylor consented to a search of his home. Near the front door, officers found Randolph’s “duffle

[sic] bag, a plastic bag and some loose items.” R. 6-13, Pg. ID 1107. Taylor told the officers

that the clothes belonged to Randolph and that he hadn’t touched them. But Taylor still allowed

officers to search the items. The officers then discovered a pair of jeans that contained eight

rounds of ammunition.

Almost two months later, the detective who found the ammunition in Randolph’s jeans

“brought the case to [the] attention” of Sergeant Bernritter, a member of the Flint Police

Department who was detailed to a federal firearms taskforce. R. 6-11, Pg. ID 935–37. Bernritter

was new to the case, so he studied the police file. Two facts immediately stood out:

(1) Ammunition had been found among Randolph’s belongings, and (2) Randolph was a

convicted felon. Based on that information, Bernritter obtained a warrant to arrest Randolph for

the federal crime of possessing ammunition as a felon.

Bernritter heard from a source that Randolph was staying at his brother’s home. So

almost two months after the shooting, Bernritter went to the brother’s house and arrested

Randolph.

Later that day, Bernritter discovered that Randolph’s brother was on parole. The

brother’s parole agreement allowed police to search his home, even without a warrant. Relying

on that parole agreement, Bernritter conducted a full search of the brother’s home. And that’s

when Bernritter discovered a handgun in one of the bedroom closets.

Michigan tried Randolph for murder. At trial, the prosecution introduced the handgun

that Bernritter recovered and presented expert testimony that the handgun was the murder

weapon. Randolph’s counsel never objected. The jury found Randolph guilty of four state-law

crimes, including second-degree murder. He timely appealed, arguing—for the first time—that

the murder weapon should’ve been suppressed and that his counsel was ineffective for failing to

No. 24-1202 Randolph v. Macauley Page 18

object at trial. Michigan state courts rejected that argument. Randolph then filed a habeas

petition in federal court, but the district court denied his petition.

Randolph now appeals that denial. He contends that the search of his clothes, which led

to the discovery of ammunition, was unlawful because his father didn’t have the authority to

consent to that search. Randolph further asserts that absent the discovery of the bullets, the

police wouldn’t have had probable cause to arrest him for possessing ammunition as a convicted

felon. And because the police located the murder weapon after executing that arrest warrant,

Randolph contends that his counsel should’ve moved to exclude the murder weapon as the fruit

of an unlawful search.

II.

Randolph must meet a “doubly” demanding standard to succeed on his ineffective-

assistance claim because it arises in a habeas petition. Harrington v. Richter, 562 U.S. 86, 105

(2011) (quotation omitted).

To prevail on his habeas petition, Randolph must establish that the Michigan courts’

decision either (1) “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” or (2) “was

based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Under this

demanding standard, we may issue habeas relief only when “there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts with [the Supreme Court’s]

precedents.” White v. Plappert, 131 F.4th 465, 477 (6th Cir. 2025) (alteration in original)

(quoting Richter, 562 U.S. at 102).

And to establish ineffective assistance, Randolph must show that his trial counsel’s

performance was deficient and that he was prejudiced by that deficiency. Strickland v.

Washington, 466 U.S. 668, 688, 692 (1984). Because Randolph’s theory of ineffective

assistance is based on his counsel’s failure to make a suppression motion, he must establish that

his suppression motion would’ve been meritorious. But that’s not all. The motion must be so

obviously meritorious that “no competent attorney would think a motion to suppress would have

failed.” Premo v. Moore, 562 U.S. 115, 124 (2011).

No. 24-1202 Randolph v. Macauley Page 19

Combining these two standards, we may grant relief only if “every fairminded jurist

would agree that every reasonable lawyer would have made a different decision” from

Randolph’s counsel when the murder weapon was introduced. Dunn v. Reeves, 594 U.S. 731,

740 (2021) (cleaned up).

But Randolph can’t meet that high bar. The discovery of the murder weapon was far too

removed from the allegedly illegal search. So the murder weapon would’ve been admitted, even

if Randolph’s attorney had objected. Since Randolph’s motion to suppress would’ve failed, he

can’t show he was prejudiced.

III.

The Fourth Amendment provides that “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be

violated.” U.S. Const. amend. IV. If the government collects evidence through an unreasonable

search or seizure, courts will sometimes exclude that evidence. Herring v. United States, 555

U.S. 135, 139 (2009). But exclusion is a “last resort,” not a “first impulse.” Id. at 140 (quotation

omitted). Because excluding evidence imposes a “costly toll upon truth-seeking and law

enforcement objectives,” defendants seeking exclusion face a “high obstacle.” Penn. Bd. of

Prob. & Parole v. Scott, 524 U.S. 357, 364–65 (1998) (cleaned up).

If the costs of excluding evidence outweigh its benefits, exclusion is inappropriate. Utah

v. Strieff, 579 U.S. 232, 235 (2016). This occurs, for example, when the causal connection

between the unconstitutional conduct and the discovery of the challenged evidence is too remote.

Id. In such cases, “the detrimental consequences of illegal police action become so attenuated

that the deterrent effect of the exclusionary rule no longer justifies its cost.” United States v.

Leon, 468 U.S. 897, 911 (1984) (quotation omitted).

Three factors guide an attenuation analysis. First is how close in time the

unconstitutional search is to the discovery of the evidence. 579 U.S. at 239. Second is “the

presence of intervening circumstances” between the search and the discovery of evidence. Id. at

240. And finally we look to the flagrancy of the officer’s initial Fourth Amendment violation.

Id. at 241 (quotation omitted). If the misconduct was intentional or flagrant, courts might

No. 24-1202 Randolph v. Macauley Page 20

exclude the evidence because such police misconduct is “most in need of deterrence.” Id. But if

the officer’s misconduct is merely “negligent” or the product of good-faith “errors in judgment,”

then the evidence should be admitted. Id. Here, all three factors weigh in favor of admitting the

murder weapon.

Start with the gap in time between the search of Randolph’s belongings and the discovery

of the gun. Two months passed between these events. Officers searched Randolph’s bags of

clothes on December 10, 2012. But Sergeant Bernritter didn’t even become involved in the case

until late January 2013. And he didn’t discover the murder weapon until February 10, 2013—

two months after the shooting.

This two-month gap between the allegedly illegal search and the discovery of the

challenged evidence strongly supports admissibility. We have repeatedly held as much. See,

e.g., United States v. Elmore, 18 F.4th 193, 200–01 (6th Cir. 2021) (holding that a two-month

“gap between the illicit conduct and the challenged evidence’s discovery weighs in favor of the

evidence’s admissibility”); United States v. Gross, 662 F.3d 393, 402 (6th Cir. 2011) (same).

In contrast, the Supreme Court has concluded that temporal proximity favored

suppression only in cases where far less time elapsed. In Strieff, for instance, only a few

“minutes” separated the challenged conduct from the discovery of the evidence. 579 U.S. at 239.

And in Brown v. Illinois, the gap was “less than two hours.” 422 U.S. 590, 604 (1975). The two

months here is an eternity compared to those cases.

Next, the intervening circumstances between the search and the discovery of the

challenged evidence also support attenuation. Strieff, 579 U.S. at 240. Even if the search of

Randolph’s belongings was unlawful and thus the arrest warrant was invalid, Bernritter searched

Randolph’s brother’s home for an independent reason. As Bernritter testified, his discovery of

the brother’s parole status prompted his search of the residence. And that justification is

disconnected from the search of Randolph’s bags two months earlier. In other words, the

discovery of the brother’s parole status is a classic example of an intervening circumstance that

broke the causal chain between the search of Randolph’s bags and the discovery of the murder

weapon.

No. 24-1202 Randolph v. Macauley Page 21

Compare this case to Strieff. There, a police officer detained Strieff without reasonable

suspicion. Id. at 236. Everyone agreed that the stop was a Fourth Amendment violation. Id.

But then, during the unlawful stop, the police officer discovered a valid warrant for Strieff’s

arrest. Id. Pursuant to that valid warrant, the officer arrested Strieff. Id. at 235. And during a

search incident to that arrest, the officer found drugs that Strieff later sought to suppress. Id. at

236. The Supreme Court explained that the discovery of the arrest warrant qualified as an

intervening circumstance that supported admitting the drugs. Id. at 240. The arrest warrant was

“valid,” its existence “predated” the unlawful stop, and it was “entirely unconnected with” that

stop. Id.

So too here. Just as the officer in Strieff discovered a valid arrest warrant, Bernritter

discovered that Randolph’s brother was on parole and that his parole agreement permitted a

search of his home. That parole agreement predated and was “entirely unconnected with”

Bernritter’s decision to arrest Randolph. Id. Thus, it provided an independent basis for

Bernritter to search the house. In fact, the attenuation is even clearer here than in Strieff because

the brother freely told Bernritter that he was a parolee. That “act of free will” further attenuates

the search of the brother’s residence from the search of Randolph’s bags. Elmore, 18 F.4th at

201 (quoting Wong Sun v. United States, 371 U.S. 471, 486 (1963)). In short, the presence of

intervening circumstances “strongly favors the State” here. Strieff, 579 U.S. at 240.

Finally, the alleged Fourth Amendment violation (searching Randolph’s belongings at his

father’s house) was “at most negligent,” not “purposeful or flagrant.” Id. at 241. When officers

arrived at Taylor’s house on the night of the murder, they informed him that they “needed a

search warrant” to search his home, unless he consented. R. 6-13, Pg. ID 1109. Taylor then

allowed them to “search the home.” Id. Only after that did the officers enter the residence and

search Randolph’s clothes.

To be sure, before the officers looked through Randolph’s belongings, Taylor told them

that the bags belonged to Randolph and that he hadn’t opened them. But nothing suggests that

the officers “knew they lacked” authority to conduct that search. Strieff, 579 U.S. at 243.

Rather, the officers’ decision to inform Taylor that they needed a warrant to search his house and

No. 24-1202 Randolph v. Macauley Page 22

their solicitude in obtaining his consent demonstrated a consistent concern for the Fourth

Amendment.

What’s more, the search didn’t stem from a “suspicionless fishing expedition in the hope

that something would turn up.” Id. at 242 (quotation omitted). Rather, this was a logical step in

a “bona fide investigation” after officers learned that clothes and shoes belonging to Randolph—

the lead suspect in the murder—were at Taylor’s home. Id. And “there is no indication that this

unlawful [search] was part of any systemic or recurrent police misconduct.” Id.

Likewise, the search of Randolph’s bags wasn’t a “flagrant” violation of the Fourth

Amendment. As the Supreme Court has instructed, “[f]or the violation to be flagrant, more

severe police misconduct is required than the mere absence of proper” authority to conduct a

search. Id. at 243. Here, an officer testified that Taylor specifically allowed them to

“search . . . the property he was holding for [Randolph].” R. 6-9, Pg. ID 766. So, even if Taylor

didn’t have the authority to give that permission, his consent makes the resulting search less

flagrant. In other words, this isn’t the sort of grievous police misconduct that is “most in need of

deterrence.” Strieff, 579 U.S. at 241.

In sum, all three attenuation factors support admitting the murder weapon.

* * *

Randolph’s argument on appeal is the equivalent of a “constitutional triple bank shot.”

Elmore, 18 F.4th at 201. To justify suppression, he relies on a convoluted causal chain

connecting the allegedly illegal search of his bags in Taylor’s home to the ultimate discovery of

the murder weapon in a separate residence two months later. Because the attenuation doctrine

would’ve doomed any motion to suppress, Randolph wasn’t prejudiced by his counsel’s actions.

Thus, I agree with the majority that we should affirm.

No. 24-1202 Randolph v. Macauley Page 23

__________________

CONCURRENCE

__________________

MATHIS, Circuit Judge, concurring in part and concurring in the judgment. I agree with

the majority opinion that the district court did not err in denying Andrew Randolph’s petition for

a writ of habeas corpus. I also agree that we should deny Randolph’s motion to expand the

certificate of appealability that the motions panel granted him. But I would not, as the majority

opinion does, purport to foreclose all future merits panels from expanding a certificate of

appealability to additional issues when a motions panel declines to do so.

I begin by briefly recapping the procedural history of the certificate-of-appealability

dispute. When the district court denied Randolph’s habeas petition, it also denied him a

certificate of appealability. Randolph then sought a certificate of appealability in this court on

four issues. After a single judge denied Randolph’s request, a motions panel granted Randolph a

certificate of appealability on one issue: whether his trial counsel was ineffective for failing to

move to suppress evidence obtained from a search of his belongings without his consent. That

panel denied Randolph a certificate on the other three issues. The en banc court declined to

rehear Randolph’s request to expand the certificate of appealability. Still, Randolph addressed

all four issues in his appellate briefing, again asking us to expand his certificate of appealability.

The warden did not respond on the merits to the uncertified claims.

We should have simply denied Randolph’s request to expand his certificate of

appealability because he failed to “ma[k]e a substantial showing of the denial of a constitutional

right” for the uncertified claims. 28 U.S.C. § 2253(c)(2). But the majority opinion goes further.

It concludes that a merits panel can never expand a certificate of appealability to other issues

when a motions panel refuses to do so. In my view, merits panels retain the authority to expand

certificates of appealability.

AEDPA bars habeas petitioners from taking an appeal to the court of appeals “[u]nless a

circuit justice or judge issues a certificate of appealability.” Id. § 2253(c)(1). “The certificate of

No. 24-1202 Randolph v. Macauley Page 24

appealability . . . shall indicate which specific issue or issues” make a substantial showing of a

constitutional violation. Id. § 2253(c)(3).

Section 2253(c)(1) implicates our jurisdiction. We “lack jurisdiction to rule on the merits

of appeals from habeas petitioners” until they have secured a certificate of appealability. Miller-

El v. Cockrell, 537 U.S. 322, 336 (2003).

But “§ 2253(c)(3) is nonjurisdictional.” Gonzalez v. Thaler, 565 U.S. 134, 143 (2012).

So that provision “does not deprive us of subject-matter jurisdiction to consider issues that fall

outside the certificate of appealability that we granted.” Pillow v. Burton, 852 F. App’x 986, 991

(6th Cir. 2021). In a similar vein, the Supreme Court explained that “it would seem somewhat

counterintuitive to render a panel of court of appeals judges powerless to act on appeals based on

COAs that Congress specifically empowered one court of appeals judge to grant.” Gonzalez,

565 U.S. at 143–44.

AEDPA’s plain language does not prohibit us from expanding Randolph’s certificate of

appealability. This court has jurisdiction over Randolph’s appeal because the motions panel

granted him a certificate. And we can expand that certificate without creating any jurisdictional

problems. See id. at 143–46; Pillow, 852 F. App’x at 991.

This court’s precedent confirms that a merits panel has authority to expand a certificate of

appealability. In Kraus v. Taylor, we granted a certificate of appealability on certain issues.

715 F.3d 589, 593 (6th Cir. 2013). The habeas petitioner then sought to expand the certificate to

add another claim. Id. at 594. A motions panel denied the request. Id. Like Randolph, the

Kraus petitioner briefed the uncertified claim and asked the merits panel to expand the

certificate. The merits panel expanded it, noting that the court’s interlocutory orders are “subject

to revision.” Id.1 (quotation omitted); see also Post v. Bradshaw, 621 F.3d 406, 412–13 (6th Cir.

2010) (expanding the habeas petitioner’s certificate of appealability after the motions panel

denied that request); cf. Howard v. United States, 485 F. App’x 125, 127–28 (6th Cir. 2012)

1Under the majority opinion’s read of Kraus, if a habeas petitioner untimely or improperly seeks to expand

his certificate of appealability before a motions panel, then a merits panel can expand the certificate. But if the

petitioner timely and properly seeks to expand his certificate before a motions panel and is unsuccessful, then a

merits panel cannot expand the certificate.

No. 24-1202 Randolph v. Macauley Page 25

(holding that this court has “inherent authority to expand sua sponte the scope of a COA to

encompass additional issues briefed and addressed on the merits before the district court”).

The majority opinion’s contrary arguments fail.

First, the majority opinion suggests that no mechanism exists for a merits panel to

reconsider a motions panel’s denial of a certificate of appealability. But this court has held that

“the decisions of motions panels are generally interlocutory in nature (and, thus, not strictly

binding upon subsequent panels).” Wallace v. FedEx Corp., 764 F.3d 571, 583 (6th Cir. 2014);

see also Kraus, 715 F.3d at 594.

Second, the majority opinion suggests that the law-of-the case doctrine precludes us from

reconsidering a motions-panel decision. That doctrine prevents this court from reconsidering

issues that we “decided explicitly or implicitly by necessary inference at an earlier stage of the

case.” Kanuszewski v. Mich. Dep’t of Health & Hum. Servs., 141 F.4th 796, 803 (6th Cir. 2025)

(citation modified). “Application of the law-of-the-case doctrine has been historically limited to

fully briefed questions necessarily decided in an earlier appeal, and has traditionally been used to

enforce a district court’s adherence to an appellate court’s judgment.” Keahey v. Marquis, 978

F.3d 474, 481 (6th Cir. 2020) (citation modified). Even when the doctrine applies, it is “not an

inexorable command.” Kanuszewski, 141 F.4th at 803 (quotation omitted). And the doctrine

does not stop courts from “revisit[ing] their own rulings before final judgment.” Edmonds v.

Smith, 922 F.3d 737, 740 (6th Cir. 2019). Because motions-panel decisions are “interlocutory”

and “subject to revision,” Kraus, 715 F.3d at 594, the law-of-the-case doctrine does not apply to

those decisions.

Third, the majority opinion argues that merits panels cannot overturn rulings made by the

en banc court. That is true, but irrelevant. The en banc court never made a ruling on Randolph’s

request to expand his certificate of appealability. Instead, it simply declined to hear the request.

In the end, we have the authority to expand Randolph’s certificate of appealability. I, like

the majority, would deny his request. But that is all I would do. I see no reason to attempt to

cabin future merits panels from reaching a different conclusion based on different facts and

circumstances, particularly when the law does not support such a categorical bar. As Chief

No. 24-1202 Randolph v. Macauley Page 26

Justice Roberts has said: “If it is not necessary to decide more to dispose of a case, then it is

necessary not to decide more.” Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 348

(2022) (Roberts, C.J., concurring in the judgment).