David McKinney v. Nick Ludwick

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0227p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellant, -

DAVID DENNARD MCKINNEY,

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No. 10-1669

v.

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Respondent-Appellee. -

NICK LUDWICK,

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Appeal from the United States District Court

for the Eastern District of Michigan at Ann Arbor.

No. 08-14834—John Corbett O’Meara, District Judge.

Argued: July 22, 2011

Decided and Filed: August 19, 2011

Before: KENNEDY, SILER, and McKEAGUE, Circuit Judges.

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COUNSEL

ARGUED: Raymond G. Mullins, Ypsilanti, Michigan, for Appellant. Jon P. Wojtala,

WAYNE COUNTY PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellee.

ON BRIEF: Raymond G. Mullins, Ypsilanti, Michigan, for Appellant. Jon P. Wojtala,

WAYNE COUNTY PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellee.

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OPINION

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CORNELIA G. KENNEDY, Circuit Judge. Petitioner David Dennard McKinney

is a Michigan prisoner sentenced to life imprisonment on a felony-murder conviction

stemming from his participation in the robbery and arson of a gun shop. He now

petitions for a writ of habeas corpus on the grounds that the admission at trial of

incriminating statements he gave to police violates the rights established by the Supreme

1

No. 10-1669 McKinney v. Ludwick Page 2

Court in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S.

477 (1981). We AFFIRM the district court’s denial of habeas relief.

FACTUAL AND PROCEDURAL BACKGROUND1

On August 3, 2004, emergency personnel responded to a fire at Alexander’s Gun

Shop in Inkster, Michigan. Several hours passed before firefighters were able to

suppress the fire, which caused large quantities of ammunition kept in the store to

explode and the roof to collapse. Once the police were able to access what remained of

the building, they discovered the body of Clyde Alexander, one of the store’s owners,

with tie-cuffs attached to one of his wrists. An autopsy confirmed that he had died from

smoke inhalation and extensive burns, but it also indicated that he had been beaten

before his death and was possibly unconscious when the fire started. Additionally,

investigators determined that approximately ninety guns were missing from the store and

accelerants had been used to set the fire. The Inkster Police Department and the U.S.

Department of Justice, Bureau of Alcohol, Tobacco, and Firearms (“ATF”)2 began a

joint investigation into the death of Alexander and the suspected robbery and arson of

the gun shop.

Law enforcement officers received information implicating McKinney in the fire

as early as August 17, 2004, at which time he submitted to a polygraph examination

when briefly in police custody on other charges. At this time, McKinney retained

counsel. On November 20, 2004, McKinney was again arrested on unrelated charges,

and Detective Anthony Delgreco used the opportunity to interrogate McKinney about

his possible involvement in the Alexander’s case. Delgreco read McKinney his rights

under Miranda, obtained his written waiver of those rights, and confronted him with the

evidence against him. Though McKinney initially denied any participation in or

knowledge of the crimes, he eventually said “I planned it.” Immediately thereafter,

1

The facts recounted here were either undisputed in the state court proceedings or found to be true

by the Wayne County Circuit Court.

2

ATF became involved in the investigation because Alexander’s had been a federally licensed

arms dealer.

No. 10-1669 McKinney v. Ludwick Page 3

McKinney asked for his lawyer and Delgreco stopped the interrogation. While escorting

McKinney back to his cell, Delgreco informed him that the Alexander’s case might be

prosecuted by the federal government and, in that event, McKinney could face the death

penalty for his role in the crimes.

Around 7:15AM the following morning, November 21, 2004, Delgreco entered

McKinney’s cellblock to perform a routine head count of the prisoners. McKinney

called out to Delgreco and said, according to Delgreco, that “he wanted to talk to me and

the ATF agent to see what the Feds had against him and how the case was going to

proceed.” Delgreco reminded McKinney that they could not speak due to McKinney’s

prior request for his attorney, but McKinney persisted and agreed to talk without his

lawyer. In the presence of Delgreco and ATF Agent Ray Tomaszewski, McKinney

signed a letter stating “I, David Dennard McKinney, saw Detective Delgreco in the cell

block and asked Detective Delgreco if I could hear what the ATF agent had to say about

the case. Detective Delgreco contacted the ATF agent and then read me my Miranda

rights.” Delgreco also re-read McKinney the Miranda warnings and McKinney signed

another waiver. McKinney then gave a written statement and affidavit admitting that he

had both planned the robbery and served as a lookout during it. However, he insisted

that starting the fire and killing Alexander had not been part of his plan and, in fact, he

had not learned of these events until he later saw them on the news.

On August 24, 2005, a jury in Wayne County Circuit Court found McKinney

guilty of felony murder, Mich. Comp. Laws § 750.316(1)(b), and accessory after the fact

to arson, id. § 750.505, for his role in the robbery, fire, and homicide at Alexander’s Gun

Shop. The only evidence presented at trial to link McKinney to those crimes was his

written confessions of November 21, 2004. On September 7, 2005, the circuit court

sentenced him to a mandatory term of life imprisonment for the felony murder

conviction and a concurrent term of two-to-five years on the accessory conviction.

Before trial, the circuit court had denied McKinney’s motion to suppress his

November 21, 2004 statements as products of an unlawful interrogation. McKinney

renewed this objection in a post-judgment motion for a new trial, and the circuit court

No. 10-1669 McKinney v. Ludwick Page 4

declined to overturn its previous ruling. On McKinney’s direct appeal of his conviction

and sentence, the Michigan Court of Appeals concluded that the circuit court had not

erred by allowing McKinney’s statements into evidence. People v. McKinney, No.

269823, 2007 WL 2807961 (Mich. Ct. App. Sept. 27, 2007). The Michigan Supreme

Court denied McKinney leave to appeal. People v. McKinney, 750 N.W.2d 590 (Mich.

2008).

On November 18, 2008, McKinney filed a habeas corpus petition in the United

States District Court for the Eastern District of Michigan under 28 U.S.C. § 2254, again

arguing that admission of his November 21, 2004 statements at trial violated his

constitutional rights. The district court denied his petition, holding that the state court

had not unreasonably applied clearly established federal law in determining that

McKinney’s Fifth Amendment rights had not been violated. McKinney v. Ludwick, No.

08-14834, 2010 WL 1753106 (E.D. Mich. Apr. 29, 2010). The district court issued a

certificate of appealability, and McKinney timely appealed.

STANDARD OF REVIEW

In a habeas case, this court reviews the district court’s legal conclusions de novo

and its factual determinations for clear error. Lovell v. Duffey, 629 F.3d 587, 593-94 (6th

Cir. 2011), petition for cert. filed, No. 10-10543 (May 16, 2011). Under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”):

An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State

court proceeding.

No. 10-1669 McKinney v. Ludwick Page 5

28 U.S.C. § 2254(d). AEDPA thus imposes a “‘highly deferential standard for

evaluating state-court rulings,’ which demands that state-court decisions be given the

benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation omitted)

(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

A state-court decision is “contrary to . . . clearly established Federal law,”

28 U.S.C. § 2254(d)(1), “if the state court arrives at a conclusion opposite to that reached

by [the Supreme Court] on a question of law or if the state court decides a case

differently than [the Supreme Court] has on a set of materially indistinguishable facts,”

Williams v. Taylor, 529 U.S. 362, 413 (2000). A state-court decision is “an unreasonable

application of[] clearly established Federal law,” 28 U.S.C. § 2254(d)(1), if it “correctly

identifies the governing legal rule but applies it unreasonably to the facts of a particular

prisoner’s case,” Williams, 529 U.S. at 407-08. That is, “a federal habeas court may not

issue the writ simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or

incorrectly,” id. at 411; rather, that application must be “objectively unreasonable,” id.

at 409. “‘[C]learly established Federal law’ under § 2254(d)(1) is the governing legal

principle or principles set forth by the Supreme Court at the time the state court renders

its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “However, the court may

look to lower courts of appeals’ decisions to the extent they illuminate the analysis of

Supreme Court holdings in determining whether a legal principle had been clearly

established by the Supreme Court.” Goodwin v. Johnson, 632 F.3d 301, 308 (6th Cir.

2011).

The habeas petitioner has the burden of rebutting, by clear and convincing

evidence, the presumption that the state court’s factual findings are correct. 28 U.S.C.

§ 2254(e)(1). Under § 2254(d)(2), “a decision adjudicated on the merits in a state court

and based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court

proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

No. 10-1669 McKinney v. Ludwick Page 6

ANALYSIS

On appeal, McKinney challenges the district court’s ruling that he is not entitled

to habeas relief based on his claim that the Michigan courts unreasonably applied clearly

established federal law in admitting his November 21, 2004 statements at trial. In

essence, he argues that the government’s use of these statements violates the procedural

protections designed by the Supreme Court to safeguard his Fifth and Fourteenth

Amendment right against self-incrimination from the “inherently compelling pressures”

of custodial interrogation. See Miranda, 384 U.S. at 467. Specifically, he claims that,

after he invoked his right to counsel during the November 20, 2004 custodial interview,

Delgreco impermissibly continued to interrogate him by commenting that he might face

the death penalty for his involvement in the fire at Alexander’s. He argues that, under

the Supreme Court’s decision in Edwards, this interrogation renders invalid his apparent

waiver of his right to counsel the following morning, and therefore his confessions were

inadmissible at trial.

In its watershed decision in Miranda, the Supreme Court held that, prior to

questioning, police must warn an individual “that he has a right to remain silent, that any

statement he does make may be used as evidence against him, and that he has a right to

the presence of an attorney, either retained or appointed.” Id. at 444. After being

informed of these rights, the individual may nevertheless choose to speak with police.

In that case, any of his subsequent statements may be used as evidence against him,

provided the government can demonstrate that he “waived his privilege against

self-incrimination and his right to retained or appointed counsel . . . [under the] high

standards of proof [set] for the waiver of constitutional rights.” Id. at 475 (citing

Johnson v. Zerbst, 304 U.S. 458 (1938)). This requires proof that the individual

relinquished his rights voluntarily—as a “product of a free and deliberate choice rather

than intimidation, coercion, or deception”—and knowingly—“with a full awareness of

both the nature of the right being abandoned and the consequences of the decision to

abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).

No. 10-1669 McKinney v. Ludwick Page 7

However, if an individual wishes to assert either the right to remain silent or the

right to the presence of counsel, Miranda requires the police to scrupulously honor this

decision. “If the individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation must cease.” Miranda,

384 U.S. at 473-74. And, “[i]f the individual states that he wants an attorney, the

interrogation must cease until an attorney is present.” Id. at 474. The “interrogation”

precluded by an individual’s invocation of his rights under Miranda includes not only

express questioning by police, but also “any words or actions on the part of the police

(other than those normally attendant to arrest and custody) that the police should know

are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island

v. Innis, 446 U.S. 291, 301 (1980) (footnote omitted).

In Edwards, the Supreme Court strengthened the protection available to an

individual who invokes his right to have counsel present during a custodial interrogation

by holding that “a valid waiver of that right cannot be established by showing only that

he responded to further police-initiated custodial interrogation even if he has been

advised of his rights.” 451 U.S. at 484. Instead, “an accused . . . having expressed his

desire to deal with the police only through counsel, is not subject to further interrogation

by the authorities until counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or conversations with the police.”

Id. at 484-85; see also Minnick v. Mississippi, 498 U.S. 146, 150-53 (1990). In other

words, after an individual asks for counsel during interrogation, the government cannot

demonstrate a valid waiver of this right absent the “necessary fact that the accused, not

the police, reopened the dialogue with the authorities,” Edwards, 451 U.S. at 486 n.9,

by “evinc[ing] a willingness and a desire for a generalized discussion about the

investigation,” Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (plurality opinion);

accord id. at 1055 (Marshall, J., dissenting) (“[I]n order to constitute ‘initiation’ under

Edwards, an accused’s inquiry must demonstrate a desire to discuss the subject matter

of the criminal investigation.”).

No. 10-1669 McKinney v. Ludwick Page 8

In this case, the parties do not dispute that McKinney invoked his right to counsel

in a custodial interrogation during his November 20, 2004 interview with Delgreco. At

issue is whether Delgreco’s subsequent remark to McKinney that he could possibly face

the death penalty constituted an interrogation in violation of Edwards and, if so, whether

that interrogation renders invalid McKinney’s confessions on November 21, 2004. The

Michigan Court of Appeals—whose opinion we look to as the last reasoned state-court

determination of McKinney’s Fifth Amendment claim, see Davie v. Mitchell, 547 F.3d

297, 315 (6th Cir. 2008)—determined, over the dissent of one judge, that Delgreco’s

statement did amount to an impermissible interrogation. Nevertheless, all three judges

agreed that the coercive effect of this interrogation had subsided by the time McKinney

asked to speak with Delgreco the next morning. Therefore, they reasoned, the initiation

exception articulated in Edwards applied and McKinney had validly waived his right to

counsel before giving his statements. This decision did not reflect an unreasonable

application of relevant Supreme Court precedent.

Nothwithstanding the Michigan court’s decision, it is by no means clear that

Delgreco’s death-penalty comment to McKinney qualified as the functional equivalent

of interrogation, as opposed to a type of “subtle compulsion” to cooperate that is not

foreclosed by Miranda and Edwards. See Innis, 446 U.S. at 303. As the Seventh Circuit

has held, a law enforcement officer’s “statement regarding the evidence and the possible

consequences of the charges [a suspect] faced,” including a statement that the suspect

may face the death penalty, does not necessarily “r[i]se to the level of interrogation

under existing United States Supreme Court precedent.” Easley v. Frey, 433 F.3d 969,

974 (7th Cir. 2006); cf. United States v. Payne, 954 F.2d 199, 203 (4th Cir. 1992)

(“[S]tatements by law enforcement officials to a suspect regarding the nature of the

evidence against the suspect [do not] constitute interrogation as a matter of law.”).

Nevertheless, the determination that Delgreco’s remark qualified as interrogation is not

unreasonable and we will therefore defer to it under AEDPA.

Even if Delgreco impermissibly interrogated McKinney on the night of

November 20, 2004, the Michigan court reasonably held that the initiation exception to

No. 10-1669 McKinney v. Ludwick Page 9

Edwards covered McKinney’s request to discuss his case with Delgreco and

Tomaszewski on the morning of November 21, 2004. There is no question that, on that

morning, McKinney waved Delgreco down and asked to talk about how his case was

going to proceed, signaling “a willingness and a desire for a generalized discussion about

the investigation.” See Bradshaw, 462 U.S. at 1045-46 (1983) (plurality opinion);

United States v. Williams, 612 F.3d 417, 421-22 (6th Cir.) (holding that suspect, not

police, initiated conversation under Edwards “by asking to talk about the case”), cert.

denied, 131 S. Ct. 614 (2010). Delgreco at first refused, citing McKinney’s invocation

of his right to counsel the previous night, but McKinney would not be deterred. See

Bradshaw, 462 U.S. at 1046 (plurality opinion) (noting that fact officer told defendant

he did not have to talk about his case supported decision that defendant initiated

communication with police under Edwards). McKinney then signed a written statement

indicating that he had asked Delgreco to discuss his case.

Nevertheless, McKinney contends that his request to talk to police was

precipitated by Delgreco’s death-penalty comment, which we construe as an improper

interrogation, and Edwards dictates that we therefore must presume that his subsequent

confession was involuntary. The Michigan court was not unreasonable to reject this

argument. As the Supreme Court has recently explained, “[t]he Edwards presumption

of involuntariness ensures that police will not take advantage of the mounting coercive

pressures of prolonged police custody by repeatedly attempting to question a suspect

who previously requested counsel until the suspect is badgered into submission.”

Maryland v. Shatzer, 130 S. Ct. 1213, 1220 (2010) (citations and internal quotation

marks omitted). Recognizing this justification for Edwards, this Court in Hill v.

Brigano, 199 F.3d 833 (6th Cir. 1999), held that, even when police impermissibly

interrogate an individual after he invokes his right to counsel, that individual can still

initiate communication with police and waive his previously asserted right when

“‘enough time . . . elapse[s] between the impermissible further interrogation and the

“initiation” [such] that the coercive effect of the interrogation . . . subside[s],’” id. at 842

(quoting United States v. Gomez, 927 F.2d 1530, 1539 n.8 (11th Cir. 1991)). In Hill,

state police repeatedly questioned the petitioner in violation of Edwards, but he did not

No. 10-1669 McKinney v. Ludwick Page 10

give any incriminating statements until the day after the last improper interrogation;

further, in the interim the petitioner appeared before a magistrate judge, who informed

him of his Miranda rights and appointed him counsel. This Court decided that, “[t]aking

into account both the time lapse between the impermissible interrogation and the

incriminating statements by the defendant and the fact that the defendant was aware that

he had been assigned counsel,” the trial court had correctly applied the initiation

exception to Edwards. Id.

The facts of this case are markedly similar to those of Hill. An entire night

passed between Delgreco’s death-penalty comment and McKinney’s request to talk

about his case. Additionally, at the time of his November 20, 2004 arrest, McKinney

had already retained an attorney to represent him in this matter; that attorney had acted

on his behalf during his August 2004 arrest and interrogation. McKinney attempts to

distinguish his case by arguing that Delgreco’s remark about the death penalty was more

coercive than the improper interrogation to which the defendant in Hill was subject.

Thus, he asserts, it is unreasonable to conclude that McKinney no longer felt pressured

to talk the next morning. However, it is a close question whether Delgreco’s remark that

McKinney might be prosecuted federally, and might therefore be subject to the death

penalty, even amounts to interrogation. This uncertainty is reflected in the fact that,

even if McKinney felt some urge to confess after Delgreco’s comment, it was not so

strong as to induce him to do so immediately, therefore “reducing the likelihood that

[McKinney] was under any compulsion to confess.” Holman v. Kemna, 212 F.3d 413,

419 (8th Cir. 2000) (relying in part on Hill to conclude that Edwards did not invalidate

confession given day after police officer contacted suspect in police custody and told

him that his girlfriend had given confession implicating him in crime). It is difficult to

understand how Delgreco’s statement could be perceived as more likely to induce

McKinney to confess than the direct questioning endured by the defendant in Hill. This

seems especially true in light of precedent establishing that police can inform a suspect

about the potential legal consequences of his crime, Simpson v. Jackson, 615 F.3d 421,

436 (6th Cir. 2010)—or even promise that, by cooperating, a suspect can avoid the death

penalty, Anderson v. Terhune, 467 F.3d 1208, 1213 (9th Cir. 2006), or federal

No. 10-1669 McKinney v. Ludwick Page 11

prosecution, United States v. Redditt, 87 F. App’x 440, 444 (6th Cir. 2003)—without

engaging in behavior that is so inherently coercive as to render a suspect’s subsequent

confession involuntary.3

Accordingly, the Michigan court reasonably relied on Hill to conclude that any

coercive effect of Delgreco’s death-penalty comment had subsided by the time

McKinney asked to discuss his case, and Edwards did not invalidate his November 21,

2004 statements. For the reasons discussed by the district court, the record also supports

the conclusion that McKinney knowingly and voluntarily waived his Miranda rights

after asking to talk to Delgreco and Tomaszewski on November 21, 2004, McKinney,

2010 WL 1753106, at *7-8, and McKinney does not challenge this determination on

appeal. Therefore, the admission of McKinney’s confessions at trial was not contrary

to, or the result of an unreasonable application of, clearly established federal law, and

he is not entitled to habeas relief.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s denial of McKinney’s

petition for a writ of habeas corpus.

3

McKinney points to two other facts that he claims support his position that Delgreco’s remark

was unduly coercive: (1) that McKinney’s attorney had requested the Inkster Police Department to keep

him informed of developments in McKinney’s case, and Delgreco failed to contact him with news of

McKinney’s November 20, 2004 arrest; and (2) that Delgreco called Tomaszewski the night of November

20, 2004 and asked him to come to the police station the next morning because McKinney was in custody,

presumably so they could interrogate McKinney. First, these facts were not found to be true or, in the case

of the second claim, were explicitly rejected in the Michigan courts, and these factual determinations are

entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1). Second, it is unclear how, even if

these facts were true, they would effect the degree to which McKinney felt compelled to confess as a result

of Delgreco’s death-penalty comment, as McKinney was unaware of either occurrence. Cf. Moran, 475

U.S. at 422 (“Events occurring outside of the presence of the suspect and entirely unknown to him surely

can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”).