Stephen Fleming v. Linda Metrish

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0068p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Petitioner-Appellee, -

STEPHEN MICHAEL FLEMING,

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No. 07-2311

v.

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Respondent-Appellant. -

LINDA METRISH, Warden,

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Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 04-72365—Arthur J. Tarnow, District Judge.

Argued: October 30, 2008

Decided and Filed: February 25, 2009

Before: CLAY, GILMAN, and ROGERS, Circuit Judges.

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COUNSEL

ARGUED: Janet A. VanCleve, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. Douglas W. Baker, STATE APPELLATE DEFENDER

OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Raina I. Korbakis, OFFICE OF

THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Douglas

W. Baker, STATE APPELLATE DEFENDER OFFICE, Detroit, Michigan, for Appellee.

GILMAN, J., delivered the opinion of the court, in which ROGERS, J., joined.

CLAY, J. (pp. 24-55), delivered a separate opinion concurring in part and dissenting in part.

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OPINION

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RONALD LEE GILMAN, Circuit Judge. Stephen Michael Fleming was convicted

of second-degree murder and a related firearm offense. He was sentenced to life in prison

on the two charges. Fleming then petitioned for state postconviction relief, but was turned

down at all levels of the state judiciary. He subsequently sought habeas corpus relief in

1

No. 07-2311 Fleming v. Metrish Page 2

federal court, arguing that the state trial court erred by denying a motion to suppress his

confession and by not allowing him to call a witness who purportedly would have aided his

defense. The district court conditionally granted his petition for a writ of habeas corpus. For

the reasons set forth below, we REVERSE the judgment of the district court and REMAND

the case with instructions to deny Fleming’s petition.

I. BACKGROUND

A. Factual background

Scott York was found dead in the woods of Moffat Township, Michigan on

October 21, 1999. York had been shot both in the face and in the back of the head. In early

November 1999, Fleming’s brother provided Detective Robert Lesneski with information

that led Lesneski to conclude that Fleming was involved in York’s death. Fleming’s brother

persuaded Fleming to explain his connection with York to Lesneski. Lesneski subsequently

arranged a meeting with Fleming.

During the meeting, Fleming told Detective Lesneski that he had picked up a

hitchhiker on October 21, 1999. The hitchhiker and Fleming proceeded to a store to

purchase alcoholic beverages and then left to drink together. Fleming told Lesneski that he

later dropped off the hitchhiker somewhere near Sterling, Michigan. Lesneski showed

Fleming a photograph of a man and asked whether it depicted the hitchhiker. After Fleming

said that it did, Lesneski identified the man in the photo as York.

The police subsequently obtained a search warrant for Fleming’s residence and other

buildings on his farm in mid-November 1999. Upon arriving at Fleming’s residence,

Detective Lesneski said that Fleming was “very cooperative” and even told the officers about

illegal drugs that were located on the property. After finding the drugs, Lesneski approached

Fleming to “read him his rights” and to ask if Fleming would speak with him. Fleming

refused to answer “questions about that fucking homicide or homosexual activity,” and then

said that he was “not going to be one of the guys that you hear about in 60 minutes, that went

to jail for something he didn’t do.” Lesneski subsequently placed Fleming under arrest for

possessing illegal drugs and had him put in the back seat of a police squad car. The detective

No. 07-2311 Fleming v. Metrish Page 3

estimated that Fleming was placed in the car between 1:00 and 1:30 p.m. A search continued

on Fleming’s property for evidence relating to York’s death.

Approximately one hour later, Fleming was taken from the squad car to a narcotics

van to sit with Officer Robert Clayton, where Fleming would sit for roughly two hours.

Fleming and Officer Clayton engaged in “small talk” until Detective Lesneski approached

the van and smiled. Clayton surmised that something “positive” had happened. Indeed, the

police had found the murder weapon and were therefore “quite excited.”

Officer Clayton next told Fleming that things did not look good for him and that

“maybe he needed to do the right thing.” Fleming testified, on the other hand, that Clayton

told him that “it’s obviously not a good sign for you,” and that “[i]f you have a chance at

anything, . . . I would [] strongly recommend that you get with the program is my advice.”

Clayton denied ever telling Fleming “[t]o get with the program.” There is no dispute,

however, that between one and five minutes later Clayton asked whether Fleming wished to

speak with Detective Lesneski. Fleming agreed to do so. Shortly thereafter, Lesneski took

Clayton’s place in the van.

Detective Lesneski testified that he did not ask any questions or begin an

interrogation when he entered the van. He said that Fleming began to weep. Lesneski then

moved the van out of view of the other officers who were in the vicinity because Fleming

did not want them to see him crying. After Lesneski moved the van, Fleming said that he

felt hot and nauseous. Lesneski opened the van’s doors for Fleming so that he could get

some air. After asking for “a couple of minutes” to “get [his] head straight,” Fleming

confessed to York’s murder. Fleming then asked Lesneski whether the police had found the

gun. Lesneski replied that they had.

Detective Leskneski maintains that he let Fleming speak without interruption until

he was finished. Lesneski said that he then told Fleming the following:

I read you your rights once today, . . . and you didn’t want to talk to me . . . .

Now I am required by law to read you your rights. I have to protect you.

My job is to protect you and I need to do that. I don’t want you waking up

tomorrow feeling sorry for something you did or didn’t say.

No. 07-2311 Fleming v. Metrish Page 4

Lesneski proceeded to read Fleming his Miranda rights for the second time. Fleming

acknowledged that he understood his rights. Lesneski then questioned Fleming about York’s

death. In response, Fleming provided “far more information” about the circumstances

surrounding the killing. Approximately an hour later, Detective Lesneski tape recorded

Fleming’s confession at a police station. Lesneski read Fleming his Miranda rights a third

time before recording the statement. The recording was played for the jury at trial.

Fleming offered a different version of the conversation that took place inside the van

with Detective Lesneski. According to Fleming, Lesneski initiated the conversation and

claimed to have

found a weapon and that it [would] be within my best interests to cooperate.

He told me that I did need to—he told me to be careful of what I say, that

don’t be sorry for —you don’t want to be sorry for something you have or

haven’t said. I don’t remember the exact words, but there was a

conversation before I had—I didn’t come right out and say, “Yeah, I done

it.”

B. Procedural background

Fleming’s counsel filed a pretrial motion to suppress the statements Fleming made

to Detective Lesneski. In April 2000, the trial court conducted a so-called Walker hearing,

which under Michigan law refers to a “phase of motion practice in which all issues of

admissibility of a defendant’s statements are resolved.” People v. Ray, 430 N.W.2d 626, 631

(Mich. 1988) (discussing People v. Walker, 132 N.W.2d 87 (Mich. 1965)). Fleming’s

counsel framed the issues at stake in the hearing as follows: “[W]e have both questions

regarding the right to remain silent and the Fifth Amendment, also got [sic] the right to an

attorney. Both of those things were asserted on behalf of the defendant.” The prosecutor

framed the issue, in contrast, as “nothing but voluntariness.” Accepting the prosecutor’s

statement of the issue, the state trial court held, without explaining why, that “[t]he only

issue . . . is whether or not [the confession] was voluntary.”

In May 2000, Fleming stood trial in the state court. He maintained that he had killed

York in self-defense, thinking that York was going to harm him. In support of this claim,

Fleming testified that York bragged about robbing drug dealers and that he had asked

Fleming for “a couple hundred dollars” to buy crack cocaine. Fleming also claimed that

No. 07-2311 Fleming v. Metrish Page 5

York became furious when he refused, telling Fleming that “I am going to kick your fucking

teeth right through your head.” He further alleged that he shot York twice before York hit

the ground because York would not stop advancing toward him after Fleming warned him

to stop. In addition to his own testimony, Fleming presented two witnesses who said that

York had a reputation for being violent. The trial court refused, however, to allow Fleming

to call a witness who allegedly saw York rob a drug dealer the week before York was killed.

After exhausting his state-court remedies, Fleming sought a writ of habeas corpus

in federal district court, alleging that he was being held in a state prison in violation of his

constitutional rights. The district court conditionally granted Fleming’s petition, holding that

his Fifth Amendment right to remain silent had been violated and that he was denied his

constitutional right to mount a defense because the trial court did not permit Fleming to call

a witness who purportedly would have bolstered his self-defense claim. This timely appeal

followed.

II. ANALYSIS

A. Standard of review

“In a habeas corpus appeal, we review the district court’s legal conclusions de novo,

but will not set aside its factual findings unless they are clearly erroneous. The standard for

reviewing state-court determinations on habeas, by contrast, is governed by the Antiterrorism

and Effective Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254(d).” Ivory v.

Jackson, 509 F.3d 284, 291 (6th Cir. 2007) (citation omitted). AEDPA provides that a

federal court

may not grant a writ of habeas to a petitioner in state custody with respect

to any claim adjudicated on the merits in state court unless (1) the state

court’s decision ‘was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court’ or

(2) the state court’s decision ‘was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.’

Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254(d)) (citation

omitted).

A state-court decision is considered “contrary to . . . clearly established federal law”

if the two are “diametrically different, opposite in character or nature, or mutually opposed.”

No. 07-2311 Fleming v. Metrish Page 6

Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotation marks omitted).

Alternatively, to be deemed an “unreasonable application of . . . clearly established Federal

law,” a state-court decision on the merits must be “objectively unreasonable,” not simply

erroneous or incorrect. Id. at 409-11. The state court’s findings of fact are presumed to be

correct unless they are rebutted by clear and convincing evidence. Benge v. Johnson, 474

F.3d 236, 241 (6th Cir. 2007).

B. Alleged Fifth Amendment violation

1. Procedural default

The district court held that the Michigan Court of Appeals unreasonably applied

Supreme Court precedent in concluding that Fleming’s Fifth Amendment right to remain

silent was not violated during the investigation of York’s murder. As a threshold matter,

however, the state argues that the district court should not have even reached the issue

because the same was procedurally defaulted. But the state’s counsel, according to the

district court, “acknowledged at oral argument [that] the issue had been raised in state court.”

The state nevertheless argues that the Fifth Amendment issue was not properly raised

during the pretrial Walker hearing because, according to the state, the sole purpose of such

hearings is to address whether a particular confession was provided voluntarily. Fleming

responds that, even if the Michigan courts originally created Walker hearings to assess

voluntariness, “the profession [came] to use the term[] ‘Walker hearing’ to refer to that phase

of motion practice in which all issues of admissibility of a defendant’s statements are

resolved.” See People v. Ray, 430 N.W.2d 626, 631 (Mich. 1988).

We find no error in the district court’s adoption of Fleming’s persuasive response

regarding the scope of a Walker hearing. Moreover, the state’s concession that the Miranda

issue “had been raised in state court” negates a finding of procedural default. We therefore

turn to the merits of Fleming’s Fifth Amendment Miranda claim.

No. 07-2311 Fleming v. Metrish Page 7

2. Admissibility of Fleming’s confession

Under Miranda v. Arizona, 384 U.S. 436, 473-74 (1966), law enforcement officers

must cease questioning a suspect who invokes his right to remain silent or to have an

attorney present. This does not mean that statements obtained after a suspect invokes that

right are necessarily inadmissible in all cases. Instead, “the admissibility of statements

obtained after the person in custody has decided to remain silent depends . . . on whether his

‘right to cut off questioning’ was ‘scrupulously honored.’” Michigan v. Mosley, 423 U.S.

96, 104 (1975).

We disagree with the district court’s conclusion that the Michigan Court of Appeals

unreasonably applied Mosley. The district court’s analysis turned on its determination that

Officer Clayton “interrogated” Fleming while he was in custody. We will therefore address

the issue of whether there was an interrogation before turning to the Michigan Court of

Appeals’s application of Mosley.

a. Whether Fleming was interrogated by the police

In Rhode Island v. Innis, 446 U.S. 291 (1980), the Supreme Court defined the term

“interrogation” in the Miranda context as follows:

“Interrogation,” as conceptualized in the Miranda opinion, must reflect a

measure of compulsion above and beyond that inherent in custody itself.

We conclude that the Miranda safeguards come into play whenever a person

in custody is subjected to either express questioning or its functional

equivalent. That is to say, the term “interrogation” under Miranda refers not

only to express questioning, but also to 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. . . . But, since the police surely cannot be held accountable

for the unforeseeable results of their words or actions, the definition of

interrogation can extend only to words or actions on the part of police

officers that they should have known were reasonably likely to elicit an

incriminating response.

Id. at 300-02 (emphasis in original). Police officers placed Innis under arrest, advised him

of his Miranda rights, and took him to a police station in a patrol car. Innis, 446 U.S. at 293-

94. “The respondent stated that he understood [his Miranda] rights and wanted to speak with

a lawyer.” Id. at 294. While in the car, however, the officers began to speak to each other

No. 07-2311 Fleming v. Metrish Page 8

about the murder weapon, which they had not yet located. Id. at 294. One of the officers

testified as follows:

I was talking back and forth with [a second police officer] stating that I

frequent this area while on patrol and [that because a school for handicapped

children is located nearby,] there’s a lot of handicapped children running

around in this area, and God forbid one of them might find a weapon with

shells and they might hurt themselves.

Id. at 294-95 (second alteration in original).

The second officer “apparently shared his fellow officer’s concern,” indicating that

he “more or less concurred with [the first officer] that it was a safety factor and that we

should, you know, continue to search for the weapon and try to find it.” Id. at 295.

Sometime during the course of this discussion, Innis “interrupted the conversation, stating

that the officers should turn the car around so he could show them where the gun was

located. . . . The respondent then led the police to a nearby field, where he pointed out the

shotgun under some rocks by the side of the road.” Id.

After considering the above facts, the Supreme Court held that the officers’

conversation was not reasonably likely to elicit an incriminating response. Id. at 302. The

court noted that nothing in the record indicated that the suspect was “peculiarly susceptible

to an appeal to his conscience,” and further elaborated that

[t]he case thus boils down to whether, in the context of a brief conversation,

the officers should have known that the respondent would suddenly be

moved to make a self-incriminating response. Given the fact that the entire

conversation appears to have consisted of no more than a few off hand

remarks, we cannot say that the officers should have known that it was

reasonably likely that [the suspect] would so respond. This is not a case

where the police carried on a lengthy harangue in the presence of the

suspect. Nor does the record support the respondent’s contention that, under

the circumstances, the officers’ comments were particularly “evocative.” It

is our view, therefore, that the respondent was not subjected by the police to

words or actions that the police should have known were reasonably likely

to elicit an incriminating response from him.

Id. at 302-03.

In the case before us, the Michigan Court of Appeals similarly concluded that Officer

Clayton’s brief remarks did not constitute an interrogation within the meaning of Miranda.

No. 07-2311 Fleming v. Metrish Page 9

Accepting Fleming’s account of the events as true, the Michigan court characterized Officer

Clayton’s comments as “(i) a mild admonition to ‘do the right thing’ or ‘get with the

program’; and (ii) an inquiry as to whether [Fleming] now wished to talk to the lead

investigating officer.” The court stated:

As to (i), given the defendant’s repeated denials of involvement in the

instant offense, as well as his general familiarity with the justice system, we

are not convinced that these comments were ‘reasonably likely to elicit an

incriminating response,’ as necessary to constitute an interrogation. In

regard to (ii), we have also recognized that it is appropriate to present new

information to an individual so that ‘an informed an intelligent assessment’

of his or her options may be made.

We find nothing unreasonable about the Michigan appellate court’s application of

the interrogation standard set forth in Innis. The record reasonably supports a finding that

Fleming was not subject to “a measure of compulsion above and beyond that inherent in

custody itself.” See Innis, 446 U.S. at 300. Nor is this a case “where the police carried on

a lengthy harangue in the presence of the suspect.” See id. at 303. There is no evidence,

moreover, indicating that Fleming was “peculiarly susceptible to an appeal to his

conscience.” See id. Instead, just as in Innis, Officer Clayton’s comments involved a “brief

conversation” that including nothing more than “a few off hand remarks” that were not

“particularly ‘evocative.’” See id.

We recognize that Innis is arguably distinguishable on the basis that the conversation

in Innis occurred between two police officers, and was not directed toward the suspect

himself. See id. at 294-95. Officer Clayton’s brief remarks were, in contrast, clearly aimed

at Fleming. Such a distinction might be significant if an officer’s brief remarks morphed

into, for example, a “lengthy harangue” because, other things being equal, extended

comments directed toward a suspect are more likely to elicit an incriminating response. But

this court has previously rejected a constitutional challenge to cursory comments aimed at

a suspect in an analogous context. See United States v. Hurst, 228 F.3d 751, 760

(6th Cir. 2000) (holding that “the mere statement by [a law-enforcement official] that ‘we’ve

got good information on you,’ viewed in context, contains no compulsive element suggesting

a Fifth Amendment violation under the circumstances.”).

No. 07-2311 Fleming v. Metrish Page 10

There are strong arguments both for and against construing Officer Clayton’s

comments as an interrogation. Indeed, were Fleming’s appeal a direct one to be reviewed

de novo, the possibility exists that we might have agreed with Fleming’s position. But the

fact that a federal court might disagree with the Michigan Court of Appeals’s application of

Innis does not justify the conclusion that the Michigan court unreasonably applied the

Supreme Court’s decision. See Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (holding

that “a federal habeas court may not issue the writ simply because that court concludes in its

independent judgment that the state-court decision applied [a Supreme Court case]

incorrectly”); see also Hereford v. Warren, 536 F.3d 523, 528 (6th Cir. 2008) (“Our task is

not to determine whether the state court reached the correct outcome, but rather to determine

whether the court’s application of clearly established federal law is objectively

unreasonable—‘a substantially higher threshold.’”) (quoting Schriro v. Landrigan, 127 S. Ct.

1933, 1939 (2007)). We conclude that the Michigan Court of Appeals’s determination

regarding a lack of interrogation by Officer Clayton was not an “unreasonable application

of . . . clearly established Federal law.” See Williams v. Taylor, 529 U.S. 362, 376 (2000).

Finally, we note that Fleming disputed Detective Lesneski’s account of the in-van

interview that took place after Officer Clayton’s remarks. Although Lesneski claimed that

he said nothing material to Fleming when Lesneski entered the van, Fleming asserts that

Lesneski encouraged him to cooperate. The state trial court failed to resolve this factual

dispute. But even if Fleming’s version of the events is assumed to be true, we would still not

conclude that the Michigan Court of Appeals unreasonably applied Mosley. We will explain

why in the course of the discussion immediately below.

b. Whether the Michigan Court of Appeals unreasonably applied

Mosley

The district court’s finding that Officer Clayton interrogated Fleming fueled its

analysis of Michigan v. Mosley, 423 U.S. 96 (1975), and, in turn, its conclusion that the

Michigan Court of Appeals unreasonably applied that case. In Mosley, the Supreme Court

discussed the circumstances under which a police officer may resume questioning a suspect

who has previously exercised the right to remain silent under Miranda. The Court held that,

when a defendant invokes the right to remain silent, the officers have the duty to

No. 07-2311 Fleming v. Metrish Page 11

immediately cease questioning under Miranda. But the Court sought to avoid two extreme

interpretations of that obligation:

To permit the continuation of custodial interrogation after a momentary

cessation would clearly frustrate the purposes of Miranda by allowing

repeated rounds of questioning to undermine the will of the person being

questioned. At the other extreme, a blanket prohibition against the taking

of voluntary statements or a permanent immunity from further interrogation,

regardless of the circumstances, would transform the Miranda safeguards

into wholly irrational obstacles to legitimate police investigative activity,

and deprive suspects of an opportunity to make informed and intelligent

assessments of their interests.

Mosley, 423 U.S. at 102. Seeking to avoid these extremes, the Court adopted the following

standard: “[T]he admissibility of statements obtained after the person in custody has decided

to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was

‘scrupulously honored.’” Id. at 104.

The Supreme Court did not adopt a bright-line rule for determining whether law

enforcement officials have satisfied this standard. But the Court did provide guidance on the

issue by explaining that the police “fail[] to honor a decision of a person in custody to cut

off questioning, either by refusing to discontinue the interrogation upon request or by

persisting in repeated efforts to wear down his resistance and make him change his mind.”

Id. at 105-06 (brackets added). Factors favoring a finding that the police have scrupulously

honored a defendant’s rights include where “[1] the police . . . immediately ceased the

interrogation, resumed questioning only after [2] the passage of a significant period of time

and the provision of a fresh set of warnings, and [3] restricted the second interrogation to a

crime that had not been a subject of the earlier interrogation.” Id. at 106 (brackets added).

Mosley “neither elevates any one factor as predominant or dispositive nor suggests that the

enumerated factors are exhaustive, but instead directs courts to focus on whether the

confession ‘was obtained in a manner compatible with the requirements of the

Constitution.’” United States v. Schwensow, 151 F.3d 650, 659 (7th Cir. 1998) (quoting

Miller v. Fenton, 474 U.S. 104, 112 (1985)).

In holding that Fleming’s confession was admissible under Mosley, the Michigan

Court of Appeals emphasized that there was no evidence indicating that the police

endeavored to “wear down [Fleming’s] resistance and make him change his mind.” See

No. 07-2311 Fleming v. Metrish Page 12

Mosley 423 U.S. at 105. Although Fleming confessed before receiving a fresh set of

Miranda warnings, the Michigan court’s conclusion was premised upon its finding that the

police did not actually interrogate Fleming a second time before he voluntarily chose to

confess.

But the district court disagreed. In contrast to the state court’s opinion, which

emphasized that the police officers did nothing to “wear down” Fleming’s resistance, the

district court emphasized other Mosley factors. The district court did not think that the police

waited long enough before “questioning” Fleming a second time about the murder (even

though the purported questioning of Fleming by Officer Clayton occurred three hours later).

It also observed that Fleming did not receive fresh Miranda warnings before Clayton made

his comment that Fleming should “do the right thing,” or before Clayton allegedly told

Fleming to “get with the program” (which assumes, contrary to the reasonable determination

of the Michigan Court of Appeals, that these comments constituted an “interrogation” that

should have been accompanied with new warnings). The district court noted that the

purported interrogation concerned the same crime that was the subject of the earlier

interrogation (a factor that indeed favors Fleming under Mosley). Its application of these

factors led the district court to conclude that the Michigan Court of Appeals unreasonably

applied Mosley.

In conducting its analysis under Mosley, the district court apparently assumed that

Detective Lesneski did not encourage Fleming to cooperate. The district court’s opinion in

fact contains no discussion of Lesneski’s alleged comments. Nor did Fleming seek to

resolve the factual dispute by requesting a hearing on the matter. See 28 U.S.C. § 2254(e)

(stating the conditions under which federal courts are permitted to hold hearings on factual

disputes in state-court habeas proceedings).

In addition to assuming that Officer Clayton interrogated Fleming a second time

before Fleming voluntarily confessed, and that Detective Lesneski did not encourage

Fleming to cooperate, the district court failed to explain why the state court’s ultimate

conclusion—that the officers scrupulously honored Fleming’s right to remain silent where

there was no evidence that they tried to “wear down” Fleming’s resistance—was contrary

to Mosley. As previously noted, “Mosley neither elevates any one factor as predominant or

No. 07-2311 Fleming v. Metrish Page 13

dispositive nor suggests that the enumerated factors are exhaustive, but instead directs courts

to focus on whether the confession ‘was obtained in a manner compatible with the

requirements of the Constitution.’” Schwensow, 151 F.3d at 659 (quoting Miller, 474 U.S.

at 112). Even Fleming concedes that Mosley does not provide a per se rule for determining

whether the police have sufficiently honored the suspect’s exercise of his right to remain

silent, and that Mosley does not require in every case the passage of a fixed length of time,

the provision of fresh Miranda warnings, or a change of subject.

The fact that the district court reached a contrary outcome after emphasizing different

Mosley factors than those relied on by the Michigan Court of Appeals does not suffice to

justify the granting of a habeas petition pursuant to AEDPA, especially in light of our

conclusion that the state court’s determination regarding a lack of interrogation by Officer

Clayton was not objectively unreasonable. See Hereford, 536 F.3d at 528. In sum, despite

the closeness of the question on the merits, we are of the opinion that the Michigan Court

of Appeals’s decision on this issue was not an unreasonable application of Miranda, Innis,

or Mosley.

Our dissenting colleague, on the other hand, believes that the Michigan Court of

Appeals’s plain-error review of the claim is not entitled to AEDPA deference because such

a review does not amount to consideration ‘on the merits’ for purposes of 28 U.S.C.

§ 2254(d). We respectfully disagree for two reasons.

First, none of the cases cited by the dissent decide the question of whether a claim

reviewed for plain error by a state court dispenses with our obligation to apply AEDPA

deference to the merits of the decision reached by that court. They instead discuss the

analytically prior question of whether a federal court is permitted to hear an issue in the first

place under the doctrine of procedural default. See, e.g., Jells v. Mitchell, 538 F.3d 478, 511

(6th Cir. 2008) (holding that a claim not raised before the Ohio Court of Appeals was

procedurally defaulted even though the Ohio Supreme Court reviewed the claim for plain

error on direct appeal); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) (holding that

“a state court’s plain error analysis does not save a petitioner from procedural default”);

Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (holding that habeas petitioners

cannot resurrect procedurally defaulted claims on the sole basis that a state court has applied

No. 07-2311 Fleming v. Metrish Page 14

plain-error review to the issue on direct appeal). We of course agree with these cases to the

extent that they stand for the well-established rule that a state court’s application of plain-

error review does not revive a habeas petitioner’s otherwise procedurally defaulted claim on

collateral review. But we disagree with our colleague’s view that they control not only this

court’s ability to address a habeas petitioner’s claim, but also the appropriate standard of

review to apply once we have determined that the claim is reviewable on the merits.

Second, the question of whether a claim should be addressed on collateral review

under the judicially created doctrine of procedural default is independent of the question of

whether Congress requires deference pursuant to AEDPA. This court declines to review

procedurally defaulted claims out of respect for state-court enforcement of state procedural

rules. Clinkscale v. Carter, 375 F.3d 430, 441 (6th Cir. 2004) (citing Coleman v. Thompson,

501 U.S. 722, 722 (1991)) (observing that the purposes of the procedural-default rule include

concerns of comity and federalism). Similarly, Congress enacted AEDPA “to further the

principles of comity, finality, and federalism.” Williams v. Taylor, 529 U.S. 420, 436

(2000). But the fact that similar concerns motivate both the procedural-default doctrine and

AEDPA does not permit us to ignore the latter simply because the former doctrine is deemed

inapplicable. Instead, we believe that this court’s jurisprudence is reasonably clear about

when a state-court’s consideration of a claim is to be considered “adjudicated on the merits”

for the purpose of triggering our review under AEDPA. See 28 U.S.C. § 2254(d).

This court’s decisions in Maples v. Stegall, 340 F.3d 433 (6th Cir. 2003), and

Danner v. Motley, 448 F.3d 372 (6th Cir. 2006), are instructive on this point. In Maples, this

court followed the Supreme Court’s lead in Wiggins v. Smith, 539 U.S. 510 (2003), in

holding that, to the extent that no state court had decided the claim in question, the claim

would be subject to de novo review. Maples, 340 F.3d at 437. AEDPA deference was

deemed inappropriate in Maples because the Michigan courts simply declined to evaluate

the merits of the petitioner’s federal ineffective-assistance-of-counsel claim at all. See id.

at 435-36; see also People v. Maples, No. 196975, 1997 WL 33339368, *1 (Mich. Ct. App.

Nov. 4, 1997), aff’d, People v. Maples, 584 N.W.2d 738 (Mich. 1998).

In the total absence of any such evaluation, there was no need in Maples to specify

the precise form of analysis would suffice to constitute an adjudication on the merits of a

No. 07-2311 Fleming v. Metrish Page 15

claim under AEDPA. See Maples, 340 F.3d at 437. But Danner, 448 F.3d at 376, provides

further clues, indicating that federal courts will not apply AEDPA deference to a state court’s

adjudication if the state court “confined its analysis . . . to state law” or failed to examine

applicable constitutional law. Id. Both Maples and Danner therefore focus on the legal

reasoning provided by the state court in disposing of a claim to determine whether AEDPA

applies—not the standard of review through which that claim is viewed. And both clearly

imply that AEDPA deference would apply if the state court conducts any reasoned

elaboration of an issue under federal law.

This court’s decision in Benge v. Johnson, 474 F.3d 236 (6th Cir. 2007), is not to the

contrary. In Benge, a jury instruction was held to be erroneous under state law, but not

plainly so, by the Ohio Supreme Court. Id. at 245-46. On that basis the state appellate court

declined to reverse the defendant’s conviction. Id. The habeas petitioner claimed, on

collateral review, that his counsel was constitutionally ineffective for failing to object to the

instruction during trial. Id. at 246. This court reviewed the ineffective-assistance claim de

novo because the question of whether the jury instruction was plainly erroneous, as

determined by the Ohio Supreme Court under purely state law, could not serve as a substitute

for the entirely different inquiry of whether the petitioner’s trial counsel had been

constitutionally ineffective for failing to object to the instruction in the first place. See id.

But Benge does not demonstrate, as the dissent suggests, that the state court’s application of

plain-error review per se insulates the claim from AEDPA deference. Instead, this court

declined to defer in Benge because the state court did not provide a “reasoned adjudication”

of the federal ineffective-assistance-of-counsel claim at issue. See id. at 247.

The case before us is not like Benge or Maples. There is little question that

Fleming’s Fifth Amendment claim was “adjudicated on the merits” for AEDPA purposes by

the Michigan Court of Appeals. We note as an initial matter that Fleming has never

contested AEDPA’s applicability. This issue has instead been raised sua sponte by our

dissenting colleague. Moreover, the Michigan Court of Appeals analyzed Fleming’s claim

pursuant to Mosley’s “scrupulously honored” standard, as amply indicated by the above

discussion of the Michigan court’s opinion. Its use of the plain-error standard of review, as

opposed to the clearly erroneous or de novo standards, simply made reversal of the state trial

No. 07-2311 Fleming v. Metrish Page 16

court’s judgment less likely, but did not cause the Michigan Court of Appeals to bypass the

merits of Fleming’s claim and thereby avoid triggering AEDPA deference.

Nor are we persuaded by our dissenting colleague’s distinction between federal

constitutional issues that a state court “merely addresses” on the merits and those that are

“‘adjudicated’ on the merits.” (Dissenting Op. p. 25) This appears to us to be a distinction

without a difference. See Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006) (“Where a

state court fails to address federal law, § 2254 does not apply, and the decision is reviewed

de novo,” which clearly implies that AEDPA deference would have applied if the state court

had addressed the claim). Furthermore, the first step of the Michigan Court of Appeals’s

plain-error review essentially required addressing whether an error had occurred—an inquiry

which, in this case, could not be accomplished without first adjudicating the merits of

Fleming’s claim. This is not a case where the state court simply assumed, without deciding,

that there was a constitutional error and then proceeded to determine that the error was not

plain. To the contrary, the case before us is one where plain-error review itself played no

practical role in the resolution of Fleming’s Fifth Amendment claim at the state level.

The heart of the disagreement between ourselves and our dissenting colleague thus

boils down to whether a federal constitutional claim reviewed by a state court for “plain

error” can be considered “adjudicated on the merits” for the purpose of receiving deference

under AEDPA. To our knowledge, there is no authority squarely on point that decides this

key question. We are persuaded, however, that we would be acting contrary to Congress’s

intent to have AEDPA “further the principles of comity, finality, and federalism,” Williams,

529 U.S. at 436, if we simply ignored the Michigan Court of Appeals’s evaluation of

Fleming’s Fifth Amendment claim by reconsidering the issue de novo. In sum, we see no

inherent contradiction in applying AEDPA deference to the Michigan Court of Appeals’s

reasoning on the merits of Fleming’s claim despite our disagreement with its ruling that the

issue was procedurally defaulted. The state court’s substantive reasoning does not simply

vanish along with its erroneous procedural-default determination. Nor does AEDPA.

We therefore believe that the dissent’s de novo analysis of Fleming’s Fifth

Amendment claim is inappropriate, and we further disagree with its conclusory statements

to the effect that Officer Clayton’s brief comments (or even Detective Lesneski’s alleged

No. 07-2311 Fleming v. Metrish Page 17

encouragement to cooperate) “demonstrate a persistent and not-so-subtle effort to persuade

Fleming to discuss the homicide.” (Dissenting Op. at 49) The facts before us are simply far

removed from cases like Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), where the

police were found to have engaged in an interrogation that failed to scrupulously honor the

suspect’s Miranda rights. See id. at 574-75, 586-88 (granting habeas where the police

officers questioned the petitioner continuously for nearly three hours, and where the

interrogation was “very, very one-sided”). We have already discussed why Officer

Clayton’s comments came nowhere close to that characterization.

Detective Lesneski’s alleged comments are similarly not inconsistent with Mosley,

a case that provides no set formula for determining whether the police have scrupulously

honored a suspect’s right to remain silent. See Mosley, 423 U.S. at 104. Mosley permits the

police, as Fleming acknowledges in his brief, to present new information to a suspect so that

he is able “to make informed and intelligent assessments of [his] interests.” See id. at 102.

Detective Lesneski’s alleged comments did precisely this: he disclosed to Fleming that the

police had discovered a weapon on the premises, which permitted Fleming to reassess his

situation. True, Lesneski’s alleged comments included a suggestion to “cooperate.” But this

suggestion was accompanied by—again, according to Fleming himself—a warning to

Fleming “to be careful” about what he said, and a caution not to say anything about which

he would be “sorry.” No doubt a complete and fresh recitation of the Miranda warnings

would have been preferable to these shorthand reminders. But in the context of this case,

where there is no dispute that Fleming fully understood his Miranda rights, such cautionary

language bolsters the view that those rights were scrupulously honored under Mosley.

C. Fleming’s constitutional right to present a defense

We now turn to Fleming’s alternative habeas claim regarding the exclusion of Scott

Fowler’s testimony as a defense witness. The state trial court expressly refused to consider

Fleming’s Sixth and Fourteenth Amendment claims relating to his right to mount a defense

because it considered the issue to be one of state evidentiary law. We therefore review de

novo Fleming’s right-to-present-a-defense claim. See Danner v. Motley, 448 F.3d 372, 376

(6th Cir. 2006) (utilizing the de novo standard of review where the state court failed to

consider the habeas petitioner’s constitutional claim).

No. 07-2311 Fleming v. Metrish Page 18

1. Relevant state and federal court proceedings

At trial, Fleming presented evidence showing that he killed York in self defense.

Michigan law required Fleming to show that he honestly and reasonably believed that he was

in danger of serious bodily harm or death at the hands of York. See People v. Helfin,

456 N.W.2d 10, 18 (Mich. 1990). Fleming testified that he believed York was going to kill

him because York had previously bragged about robbing drug dealers. He also called two

witnesses who stated that York had a reputation for violence.

Fleming further tendered Fowler as a witness because Fowler allegedly saw York

rob a crack cocaine dealer the week before York’s murder. The Michigan trial court refused

to allow Fowler to testify because the court deemed the evidence to be irrelevant, or so

nearly irrelevant that, under Rule 403 of the Michigan Rules of Evidence, the prejudicial

effect of such evidence substantially outweighed its probative value. On appeal, the

Michigan Court of Appeals affirmed the judgment of the state trial court because it agreed

that the testimony of the excluded witness was likely irrelevant. The state appellate court

held that the witness’s testimony would not have been relevant to Fleming’s self-defense

theory because “[i]f evidence is used to show the defendant’s state of mind and support his

apprehensions, the defendant must have known of the evidence.” See People v. Harris, 583

N.W.2d 680, 683-84 (Mich. 1998). But there was no evidence in the record that Fleming’s

alleged apprehension of York was based on anyone’s having witnessed York rob a drug

dealer in the past. In fact, Fleming testified that, at the time of the incident, he did not know

anything about York’s propensity for violence. The state appellate court therefore found that

“to whatever extent [Fleming] had knowledge of [York’s] prior conduct, it was not based

whatsoever on the excluded evidence.” Such evidence was thus excluded because it was

deemed irrelevant to establishing Fleming’s state of mind before York’s death.

To the extent that the witness’s testimony served to establish character evidence of

York’s propensity for violence, the Michigan Court of Appeals also held that such testimony

would only have been allowed in the form of “testimony as to reputation or by testimony in

the form of an opinion.” See Mich. R. Evid. 404(a)(2) and 405(a). The state appellate court

noted, moreover, that Fleming had already presented the testimony of two witnesses

No. 07-2311 Fleming v. Metrish Page 19

regarding York’s reputation for violence. This led the Michigan Court of Appeals to

conclude that the trial court had not abused its discretion.

The federal district court took issue with the Michigan Court of Appeals’s “failure

. . . to recognize the Constitutional dimension of the [trial court’s] error,” and considered this

purported error to be “an unreasonable application of federal law.” Quoting Taylor v.

Illinois, 484 U.S. 400, 409 (1988), the court observed that “[t]he right to offer testimony is

. . . grounded in the Sixth Amendment even though it is not expressly described in so many

words.”

2. Merits of the claim

Fleming argues that the Michigan trial court erred in excluding Fowler’s testimony

on the basis of relevancy. And even if the court did not err as a matter of state law, Fleming

maintains that the exclusion nonetheless violated his constitutional right to present witnesses

in his own defense. The district court agreed. We respectfully disagree.

“[T]he Constitution guarantees criminal defendants a meaningful opportunity to

present a complete defense, including the right to present relevant evidence . . . subject to

reasonable restrictions.” Varner v. Stovall, 500 F.3d 491, 499 (6th Cir. 2007) (citations and

internal quotation marks omitted) (alterations in original). This court, however, has also

stated that “[i]t is well settled that the Constitution does not guarantee a defendant the

opportunity to present any evidence he desires.” Alley v. Bell, 307 F.3d 380, 396 (6th Cir.

2002). Indeed, “[o]nly if an evidentiary ruling is so egregious that it results in a denial of

fundamental fairness [does] it . . . violate due process and thus warrant habeas relief.” Baze

v. Parker, 371 F.3d 310, 324 (6th Cir. 2004) (internal quotation marks omitted) (alterations

in original). Issues of state law, however, are ordinarily not properly subjected to collateral

review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a

federal habeas court to reexamine state-court determinations on state-law questions. In

conducting habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.”).

Fleming argues that the Michigan trial court erred in finding that Fowler’s testimony

was irrelevant and duplicative. As to relevancy, Fowler would have testified that he had

No. 07-2311 Fleming v. Metrish Page 20

previously witnessed York rob a drug dealer. This testimony was intended to bolster

Fleming’s specific account of what happened immediately before he shot York. In

particular, if the jury was more likely to believe, due to Fowler’s testimony, that York tried

to rob Fleming, then the jury might have in turn believed that Fleming feared a serious risk

of bodily injury at the hands of York. Absent Fowler’s testimony, however, the jury was

more likely to conclude that Fleming just made up the whole thing. Fowler’s testimony is

therefore arguably relevant to Fleming’s self-defense claim.

Fleming also contends that Fowler’s testimony did not duplicate the testimony of the

two witnesses who testified that York was prone to violence. Instead, Fowler’s testimony

would have arguably added credibility to Fleming’s account of the specific events leading

up to York’s death. Fleming contends that the Michigan Court of Appeals therefore erred

in excluding Fowler’s testimony.

Despite the initial plausibility of these arguments, they essentially address issues of

Michigan evidentiary law that are not as such subject to collateral review. See Estelle, 502

U.S. at 67-68. Fleming therefore faces an uphill battle in characterizing his evidentiary

concerns as constitutional in nature. In particular, Fleming must show that the state trial

court’s evidentiary ruling was “so egregious” that it effectively denied Fleming a fair trial.

See Baze, 371 F.3d at 324. Fleming has not met this burden.

In support of his contention that the state trial court’s evidentiary ruling raises

constitutional concerns, Fleming cites two cases: Chambers v. Mississippi, 410 U.S. 284

(1973), and Washington v. Texas, 388 U.S.14 (1967). Fleming argues that these cases

support the proposition that “[t]he right to present a defense is so fundamental that defense

evidence must sometimes be allowed even though it technically violates an evidentiary rule.”

Even assuming the accuracy of this broad proposition, neither case supports Fleming’s

conclusion that the trial court’s ruling violated his constitutional rights.

In Chambers, the state trial court permitted the defendant, who was accused of

murder, to call as a witness someone who initially confessed to the murder but later

repudiated his own confession and claimed to have an alibi. Id. at 291. But the defendant

was “denied an opportunity to subject [the witness’s] damning repudiation and alibi to

cross-examination” based on the state court’s rigid application of the so-called “voucher

No. 07-2311 Fleming v. Metrish Page 21

rule” that prevents a party from impeaching the credibility of his own witness. Id. at 295-98.

The trial court also refused to allow other witnesses to testify that they had heard someone

else confess to the murder because the court concluded that such testimony would be

inadmissible hearsay. Id. at 298. These two factors together were held to constitute

reversible error on habeas corpus review. Id. at 302.

Washington v. Texas involved an eyewitness to a shooting who was excluded as a

defense witness because he was allegedly an accomplice to the same shooting. In

concluding that this witness was unconstitutionally excluded, the Supreme Court directed

its attention to the nature of the evidentiary rule the state court used to exclude the witness:

The rule disqualifying an alleged accomplice from testifying on behalf of the

defendant cannot even be defended on the ground that it rationally sets apart

a group of persons who are particularly likely to commit perjury. The

absurdity of the rule is amply demonstrated by the exceptions that have been

made to it.

Washington, 388 U.S. at 22. As a result, the Supreme Court held that

the petitioner . . . was denied his right to have compulsory process for

obtaining witnesses in his favor because the State arbitrarily denied him the

right to put on the stand a witness who was physically and mentally capable

of testifying to events that he had personally observed, and whose testimony

would have been relevant and material to the defense.

Id. at 23.

The evidentiary rulings in Chambers and Washington are simply not on par with the

exclusion at issue here. Unlike the witnesses who were excluded in Chambers, Fowler was

not prepared to testify that he had overheard someone claiming to have seen York’s killing.

Nor was Fowler himself an eyewitness at the scene. Finally, the Michigan trial court did not

rely on an evidentiary rule that irrationally excludes an entire category of witnesses from

testifying on behalf of defendants, as in Washington.

Fleming might have had a stronger claim if, for example, he had been completely

barred from presenting any witnesses to corroborate his contention that York was known to

be violent. But that is not the case here. Fleming has failed to provide any persuasive reason

why the Michigan trial court’s evidentiary ruling was “so egregious that it results in a denial

of fundamental fairness . . . and thus warrant[s] habeas relief.” See Baze, 371 F.3d at 324.

No. 07-2311 Fleming v. Metrish Page 22

The district court therefore erred in granting Fleming’s petition for a writ of habeas corpus

on the basis of a purported violation of his right to present a defense.

3. Harmless error

Moreover, even if the state trial court’s ruling had violated Fleming’s constitutional

right to present a defense, that constitutional error would be harmless. To determine whether

an error is harmless on collateral review, “we ask whether the error ‘had [a] substantial and

injurious effect or influence in determining the jury’s verdict.’” Hereford v. Warren, 536

F.3d 523, 528 (6th Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).

The district court held that the purportedly unconstitutional exclusion of Fowler’s

testimony was not harmless because the exclusion “allowed the prosecutor to argue [that

Fleming’s] testimony of fear of Scott York was not corroborated.” We respectfully disagree

with the district court’s analysis because there is no indication that barring Fowler had a

substantial and injurious effect on the jury’s finding that Fleming was guilty. As the

Michigan Court of Appeals observed:

[D]efendant’s testimony was damaging to his claim of self-defense,

suggesting that, even if the proposed testimony was erroneously excluded,

the error was harmless. For example, defendant testified that he had an

opportunity to drive “probably sixty yards” away from the victim, before

turning around to attempt to pacify the victim. Moreover, defendant[’s]

testimony[] established that the victim approached him menacingly at a

“steady walk”; however, defendant testified that he had sufficient time to

retrieve his shotgun from his truck, load the shotgun with bullets that were

in his pocket, and then warn the victim to stop at least twice before shooting

him. Although defendant claimed that the shooting was “self-defense,” he

testified that he shot the victim twice. Further, defendant testified that the

victim was not armed with any weapons as he approached the defendant;

nevertheless, defendant testified that he shot the victim in the face and head.

In light of the defendant’s testimony, we believe that there was an ample

basis for the jury to conclude that defendant’s use of deadly force was

unreasonable, regardless of the victim’s history of robbing crack dealers or

defendant’s honest belief that those stories were true.

The district court simply failed to consider the Michigan Court of Appeals’s

harmless-error analysis, an analysis that we find persuasive. We would elaborate on only

one detail. Not only was York shot twice, but one of those shots entered York’s skull in the

back of his head. A reasonable jury could easily conclude that shooting someone in the back

No. 07-2311 Fleming v. Metrish Page 23

of the head is inconsistent with a claim of self defense. In sum, even if excluding Fowler as

a witness was a constitutional error, it was a harmless one because there is no indication that

the error had a substantial and injurious effect or influence in determining the jury’s verdict.

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district

court and REMAND the case with instructions to deny Fleming’s petition for a writ of

habeas corpus.

No. 07-2311 Fleming v. Metrish Page 24

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

CLAY, Circuit Judge, concurring in part and dissenting in part. Respondent Linda

Metrish, Warden of Michigan’s Kinross Correctional Facility, appeals from the district

court’s judgment granting Petitioner Stephen Fleming’s application for a writ of habeas

corpus under 28 U.S.C. § 2254. In his habeas petition, Fleming challenges his convictions

for second-degree murder and possession of a firearm during the commission of a felony on

the grounds that: (1) the trial court should have excluded his confession under Michigan v.

Mosley, 423 U.S. 96 (1975), because the police failed to “scrupulously honor” his assertion

of his Fifth Amendment right against self-incrimination; and (2) the trial court’s exclusion

of certain witness testimony denied him his fundamental right to present a defense. The

district court conditionally granted habeas relief on both claims.

Although I concur in the majority’s holding that the district court improperly granted

Fleming habeas relief on his claim regarding the exclusion of Fowler’s testimony, I

respectfully dissent from the majority’s conclusion regarding Fleming’s Mosley claim.

When considered in context, the numerous exhortations by the police encouraging Fleming

to “get with the program” and “cooperate” rose above the level of mere admonition. At the

time, Fleming was handcuffed in a police vehicle, and police officers were celebrating the

discovery of the murder weapon right in front of him, allegedly shouting and pointing in his

direction. Although Fleming made clear that he did not want to answer questions related to

the homicide, the record indicates that the police repeatedly pressured him to “do the right

thing” and “get with the program,” comments plainly aimed at wearing down Fleming’s

resistance to questioning. In other words, despite Fleming’s prior invocation of his right to

remain silent, the officers at the scene failed to “scrupulously honor” his decision to cut off

questioning.

No. 07-2311 Fleming v. Metrish Page 25

I.

Although acknowledging that there are “strong arguments” on both sides, the

majority reverses the district court’s ruling with respect to Fleming’s Mosley claim based

primarily on its conclusion that the deferential standard of review required under AEDPA

applies. By its very terms, however, AEDPA applies only to “any claim that was

adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d) (emphasis

added); see Danner v. Motley, 448 F.3d 372, 376 (6th Cir. 2006). AEDPA thus requires

deference only where the defendant’s federal claim was “adjudicated” on the merits, not,

more broadly speaking, whenever a state court merely addresses—or, in the parlance of the

majority, “evaluates”—the merits of the claim. Conversely, where the state courts do not

rule on the merits of a claim, this Court reviews the claim de novo. See Maples v. Stegall,

340 F.3d 433, 436 (6th Cir. 2003) (“Where, as here, the state court did not assess the merits

of a claim properly raised in a habeas petition, the deference due under AEDPA does not

apply. Instead, this court reviews questions of law and mixed questions of law and fact de

novo.” (internal citation omitted)). Because the Michigan courts reviewed Fleming’s claim

for plain error only, the majority’s conclusion that the decision of the Michigan Court of

Appeals, nevertheless, is entitled to deference under AEDPA is improper. In fact, the

majority’s insistence on deference is, under the circumstances, contrary to controlling

authority, illogical, and manifestly unjust. Having properly raised his Mosley claim before

the trial court, and pressed that claim at every stage of his state court proceedings, Fleming

is entitled to a full review of the merits of his claim.

Because it concluded that Fleming had “forfeited” his Mosley claim, the Michigan

Court of Appeals did not rule on the merits of that claim, but instead reviewed the claim for

plain error only. People v. Fleming, No. 228731, 2002 WL 988568, at *1 (Mich. Ct. App.

May 14, 2002) (per curiam). Under the plain-error framework, Fleming was required to

show not only that the police failed to honor his decision to remain silent, but also that the

trial court’s error was “plain” and affected his “substantial rights.” Id.; see also Cristini v.

McKee, 526 F.3d 888, 901 (6th Cir. 2008) (describing petitioner’s burden under the plain-

error standard). Regardless of whether the Michigan Court of Appeals explored some

aspects of the merits of Fleming’s Mosley claim in conducting its inquiry, it is undeniable

that the court did not consider the merits of Fleming’s claim outside the context of its plain-

No. 07-2311 Fleming v. Metrish Page 26

error inquiry. Indeed, the Michigan Court of Appeals made clear that, even had Fleming

satisfied the requisite elements of the plain-error inquiry, reversal would be “warranted” only

if he also could show that “the plain, forfeited error . . . seriously affected the fairness,

integrity or public reputation of judicial proceedings independent of the defendant’s

innocence.” Fleming, 2002 WL 988568, at *1; see also Cristini, 526 F.3d at 901 (“If all

three [plain-error] conditions are met, we may then exercise our discretion to notice a

forfeited error, but only if . . . the error seriously affected the fairness, integrity or public

reputation of the judicial proceedings.” (citing United States v. Johnson, 488 F.3d 690, 697

(6th Cir. 2007)). The Michigan court’s application of the plain-error standard thus placed

significant burdens on Fleming that he otherwise would not have had to bear to establish a

violation under Mosley. See Benge v. Johnson, 474 F.3d 236, 246 (6th Cir. 2007)

(recognizing that it was “less burdensome” for petitioner to satisfy the elements of his

Strickland claim than to demonstrate plain error); Caver v. Straub, 349 F.3d 340, 348 (6th

Cir. 2003) (noting that the plain-error standard of review is “a highly deferential standard,

to put it mildly”).

Under these circumstances, the controlling rule in this circuit is that AEDPA does

not apply and the claim is reviewed de novo. In the habeas context, this Court does not

construe a state court’s plain-error review as negating the determination that a claim has been

procedurally defaulted. See Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)

(“Controlling precedent in our circuit indicates that plain error review does not constitute a

waiver of state procedural default rules.”); Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir.

1989) (“We would be loath to adopt an exception to the ‘cause and prejudice’ rule that

would discourage state appellate courts from undertaking the sort of [manifest injustice]

inquiry conducted by the Michigan court, and we do not believe that the state court’s

explanation of why the jury instructions resulted in no manifest injustice can fairly be said

to have constituted a waiver of the procedural default.”). Rather, we “view a state appellate

1

court’s review for plain error as the enforcement of a procedural default.” Hinkle v.

Randle, 271 F.3d 239, 244 (6th Cir. 2001); see also Keith v. Mitchell, 455 F.3d 662, 673-

1

The Michigan court’s “safety valve” review for plain error is not unique. “Many states have

procedural default rules with similar ‘safety valves’ for situations in which enforcing the procedural default

would work a serious injustice.” Campbell v. Burris, 515 F.3d 172, 178 (3rd Cir. 2008) (citing Neal v.

Gramley, 99 F.3d 841, 844 (7th Cir. 1996)).

No. 07-2311 Fleming v. Metrish Page 27

74 (6th Cir. 2006). For that reason, this Court does not construe a state court’s plain-

error review as an adjudication “on the merits” for purposes of § 2254.2 See, e.g.,

Thompkins v. Berghuis, 547 F.3d 572, 590 (6th Cir. 2008) (affording no deference to

state court’s plain-error review of petitioner’s prosecutorial-misconduct claim); Jells v.

Mitchell, 538 F.3d 478, 511 (6th Cir. 2008) (“The [state] court’s plain-error review is not

considered a review on the merits . . . .”); Benge, 474 F.3d at 246 (expressly applying

de novo review to prejudice prong of Strickland claim where state court reviewed claim

for plain error); see also Grayer v. McKee, 149 F. App’x 435, 442 (6th Cir. 2005)

(rejecting district court’s conclusion that state court’s plain-error analysis constituted a

review of the merits of petitioner’s claim).

As these cases demonstrate, the controlling rule in this circuit is that no deference

is due under AEDPA where a state court reviews a petitioner’s habeas claim for plain

error only, regardless of whether the court’s plain-error inquiry may have delved into the

merits of the claim.3 As this Court expressly and unequivocally held in Lundgren v.

Mitchell, 440 F.3d 754 (6th Cir. 2006), a state court’s plain-error review is not due

deference under AEDPA because “[p]lain error analysis is more properly viewed as a

court’s right to overlook procedural defects to prevent manifest injustice, but is not

equivalent to a review of the merits.” Id. at 765 (emphasis added). Accordingly, where

the state courts determine that a claim has been forfeited and thus review that claim for

plain error only, AEDPA does not apply and no deference is due. Rather, we are free

to exercise our independent judgment and review the claim de novo.

2

The majority argues that all of our cases holding that AEDPA deference does not apply in this

context resolved only the “analytically prior question of whether a federal court is permitted to hear an

issue in the first place[, or whether we are precluded from addressing the claim] under the doctrine of

procedural default.” Contrary to the majority’s argument, although each of these decisions obviously

addressed the default issue, even a cursory review demonstrates that they also proceeded to resolve what

standard of review applies in this context.

3

In Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003), the Tenth Circuit surveyed the various

approaches that the Courts of Appeals have adopted regarding this issue, concluding that there is a split

among the circuits and, significantly, identifying this Court as construing a state court’s plain-error review

as an application of state procedural default rules rather than an adjudication on the merits. Id. at 1205 n.7

(citing Hinkle, 271 F.3d at 244).

No. 07-2311 Fleming v. Metrish Page 28

Even if one were to ignore this litany of cases and accept the majority’s flawed

contention that “there is no authority squarely on point that decides this key question,”

the express language of AEDPA requires deference only where a defendant’s federal

claim has been “adjudicated” on the merits. 28 U.S.C. § 2254(d). Nothing in AEDPA

even remotely suggests that deference is required more broadly where a state court

merely addresses merits-related aspects of a defendant’s federal claim. Consequently,

because the Michigan courts resolved Fleming’s Mosley claim on the basis of a state

procedural rule—and, in fact, did so improperly—the “principles of comity, finality, and

federalism” noted in Williams v. Taylor, 529 U.S. 420, 436 (2000), are not implicated

here.4

Today’s decision marks an extraordinary and unjustified departure from that

controlling rule. In fact, to justify its conclusion, the majority goes to great lengths to

distinguish and cabin the holding of Benge and this Court’s other cases declining to defer

to a state court’s plain-error inquiry, but those efforts are unpersuasive. Contrary to the

majority’s suggestion, nothing in Benge indicates that it is relevant whether the state

courts may have tangentially considered the merits of petitioner’s claim in addressing

the “error” element of the plain-error inquiry. Rather, the decision in Benge to review

the defendant’s claim de novo was based entirely on the determination that the state

court’s plain-error inquiry imposed additional burdens on the habeas petitioner. See 474

F.3d 246-47. As the Benge Court explained, AEDPA’s mandate to defer to state court

judgments “does not factor into [the] resolution” of the actual prejudice prong of the

petitioner’s Strickland claim because the Ohio Supreme Court had analyzed the claim

“only in the context of plain error review, not under the governing – and less

burdensome – Strickland standard.” Id. at 246. In reaching that conclusion, the Benge

Court reasoned that, “[b]ecause [the petitioner] could have met his burden under

4

Underlying our decision in Vasquez v. Jones, 486 F.3d 135 (6th Cir. 2007), is the express

recognition that a state court’s consideration of a “claim” is distinct from its consideration of an “issue”

relevant to that claim. Id. at 141. If, according to Vasquez, only “modified AEDPA deference” is required

where a state court undoubtedly “adjudicated the claim [on the merits,] but with little analysis on the

substantive constitutional issue,” id., then there is even less justification to apply full AEDPA deference,

as the majority does here, where the state court adjudicated and resolved the federal claim on state

procedural grounds and merely addressed merits-related issues in the course of that discussion.

No. 07-2311 Fleming v. Metrish Page 29

Strickland despite not being able to demonstrate plain error, this analysis did not

constitute an ‘adjudication on the merits’ of [his] ineffective-assistance-of-counsel

claims.” Id. Nothing in Benge suggests that the Court’s ruling was affected by whether

any merits-related issues may have fallen within the scope of the state court’s plain-error

inquiry.

According to the majority, Benge does not control here because, in Fleming’s

case, the state court’s “use of the plain-error standard of review . . . simply made reversal

of the state trial court’s judgment less likely, but did not cause the Michigan Court of

Appeals to bypass the merits of Fleming’s claim and thereby avoid triggering AEDPA

deference.” The majority’s reasoning simply cannot be squared with Benge, where the

Court declined to defer to a state court’s plain-error inquiry precisely because that

standard made the defendant’s showing more “burdensome,” 474 F.3d at 246, a

conclusion which seems indistinguishable from the majority’s conclusion that Fleming’s

chance of success under the plain-error standard was “less likely.”

Nor can the majority’s position be reconciled with the holding of Lundgren that

a state court’s plain-error review, even though it may require the court to explore certain

aspects of the merits of the claim, “is not equivalent to a review of the merits.” 440 F.3d

at 765 (emphasis added). Indeed, as our sister circuits have recognized, “[t]o decide

whether an error is plain requires consideration of the merits—but only so far as may be

required to determine that issue. It does not open up the merits any wider for

consideration by the federal court.”5 Neal, 99 F.3d at 844; see also Roy v. Coxon, 907

F.2d 385, 390 (2d Cir. 1990) (“[E]ven if the state court has addressed the questions of

(a) whether there was error, and (b) whether the error was prejudicial, if these questions

were answered in the context of plain-error analysis, the decision was not sufficiently a

ruling on the merits to authorize the federal court to reach the merits.” (emphasis

added)). Despite the majority’s best efforts to distinguish Benge and Lundgren, the rule

announced in those cases controls our review here. And those decisions dictate that

5

It is important to stress that de novo review is appropriate here not because the Michigan Court

of Appeals reviewed Fleming’s claim for plain error, but rather because, unlike Neal, we have determined

that the state court’s procedural-default determination was in error.

No. 07-2311 Fleming v. Metrish Page 30

deference is not required here, regardless of whether the state court considered some

aspects of the merits of Fleming’s claim in reviewing his claim for plain error.

The majority’s position is inconsistent not only with the express holdings of

Benge and Lundgren, but also with the logic underlying those decisions. In general, “a

federal court may not consider a claim for habeas corpus relief if the claim was

procedurally defaulted in state court.” Hargrave-Thomas v. Yukins, 374 F.3d 383, 387

(6th Cir. 2004). There are exceptions, however. For instance, the federal courts may

consider the merits of a claim that has been procedurally defaulted where the petitioner

demonstrates “cause and prejudice.” See Coleman v. Thompson, 501 U.S. 722, 750

(1991) (noting that a petitioner can overcome procedural default by demonstrating

“cause for the default and actual prejudice as a result of the alleged violation of federal

law,” or demonstrating “that failure to consider the claims will result in a fundamental

miscarriage of justice”). The federal courts also may consider a purportedly defaulted

claim where the state court’s procedural-default determination was wrong as a matter of

law. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (describing this circuit’s

four-part test for determining whether a claim in fact has been procedurally defaulted).

In the latter case, where a federal court finds error in the state court’s procedural-

default ruling, the federal courts are not bound by the state court’s adjudication of the

claim, even if the state court proceeded to review the claim for plain error or manifest

injustice, or under any other “safety valve” standard. See Campbell, 515 F.3d at 178.

And for good reason, because rejecting the state court’s underlying default ruling

necessarily implies that the state court’s application of a more burdensome “safety

valve” standard was improper. In light of such a determination, although it is true that

the “state court’s substantive reasoning does not simply vanish along with its erroneous

procedural-default determination,” as the majority quips, it is illogical to continue to

insist on deferring to a state court’s improperly-applied, and undoubtedly more

burdensome, plain-error inquiry. See Lundgren, 440 F.3d at 765.

This interplay between a state court’s default ruling and its application of plain-

error review also undermines the majority’s unsupported contention that “whether a

No. 07-2311 Fleming v. Metrish Page 31

claim should be addressed on collateral review [or whether review is precluded] under

the judicially created doctrine of procedural default is independent of the question

whether Congress requires deference pursuant to AEDPA.” If the federal courts have

rejected the state court’s “analytically prior” ruling that a claim has been procedurally

defaulted, then there is no justification for the federal courts to be bound by the effects

of that determination, i.e., the application of a more burdensome safety valve standard.

In fact, such a rule would be manifestly unjust as it would imply that a defendant who

has properly raised a federal claim in state court is never afforded a full review of the

merits of his claim at any stage. The majority’s baseless contention that we are obliged

to give deference to any state court adjudication where the state court “conducts any

reasoned elaboration of an issue under federal law” thus is fundamentally unfair to

criminal defendants who have properly raised their claims in state court, but, through no

fault of their own, have never been afforded a full review of the merits of their claims.

The majority’s insistence that deference is required whenever “the state court

conducts any reasoned elaboration of an issue under federal law” also is in tension with

other aspects of this Court’s habeas jurisprudence. For instance, in Joseph v. Coyle, 469

F.3d 441 (6th Cir. 2006), we recognized an important exception to the deference owed

state court adjudications under AEDPA, holding that de novo review is appropriate

“when a claim made on federal habeas review is premised on Brady material that has

surfaced for the first time during federal proceedings,” even where the state courts

ostensibly addressed that claim on the merits. Id. at 469. In such cases, we have

construed the development of new evidence as giving rise, in effect, to a new claim, and

thus have held that deference is not required under § 2254(d) in such cases. Id. In

Brown v. Smith, 551 F.3d 424 (6th Cir. 2008), we expanded the scope of that exception,

holding that the principle announced in Joseph “applies generally,” not just in the

context of Brady claims. Id. at 430 (applying de novo review to ineffective-assistance-

of-counsel claim that had been addressed “on the merits” by the state courts).

Although the majority’s insistence on deference in this case is not entirely

irreconcilable with this line of cases, it seems more than a little awkward that de novo

No. 07-2311 Fleming v. Metrish Page 32

review is appropriate where the state courts undeniably have addressed a petitioner’s

claim “on the merits” but improperly failed to consider critical evidence in conducting

that inquiry, and yet deference is required where the state courts undoubtedly reviewed

a claim for plain error only and we have rejected the state court’s entire premise for

applying that standard. Indeed, the majority’s insistence on deference whenever the state

courts conduct “any reasoned elaboration of an issue under federal law” is utterly

inconsistent with the logic and interests underlying our application of de novo review in

Joseph and Brown, both of which concluded that a state court’s consideration of issues

related to the merits of a defendant’s claim does not require deference under AEDPA.

If, as the majority insists, the “principles of comity, finality, and federalism”

identified in Williams, 529 U.S. at 436, were implicated not only where a state court

adjudicates a claim on the merits, but whenever a state court decision merely addresses

the merits of a defendant’s claim, then application of de novo review in Joseph and

Brown would be inconsistent with AEDPA. The Supreme Court, however, has assumed,

without deciding, that deference under AEDPA is not required and that de novo review

is appropriate in such cases. See Holland v. Jackson, 542 U.S. 649, 652-53 (2004)

(noting that “some Courts of Appeals have conducted de novo review [in such cases] on

the theory that there is no relevant state-court determination to which one could defer”

and “assuming, arguendo, that this analysis is correct”); see also Monroe v. Angelone,

323 F.3d 286, 297 (4th Cir. 2003); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002).

This is not, as the majority suggests, merely a linguistic distinction without any

substantive import. Rather, it is distinction dictated by the express terms of AEDPA, and

one that is necessary to draw if we are to make cohesive sense of the numerous decisions

by this Court and our sister circuits applying de novo review where a state court, despite

addressing and evaluating the merits of a party’s federal claim, has resolved the claim

on the basis of state procedural default rules.

In this case, therefore, the majority’s decision to reject the Michigan Court of

Appeals’ determination that Fleming forfeited his Mosley claim also negates the entire

basis for subjecting that claim to plain-error review in the first place. It is beyond

No. 07-2311 Fleming v. Metrish Page 33

dispute that the Michigan Court of Appeals’ premise for reviewing Fleming’s Mosley

claim for plain error was that Fleming had forfeited the claim. See Fleming, 2002 WL

988568, at *1. Now that the majority has rejected that underlying default ruling, there

no longer is any basis for limiting review of Fleming’s claim to plain error. Our policy

of providing an opportunity for state courts to correct constitutional errors before a

petitioner may seek relief in federal court, see Coleman, 501 U.S. at 730-31, simply is

not implicated under these circumstances. Thus, although—or, rather, because—I agree

with the majority’s determination that the Michigan Court of Appeals improperly found

that Fleming had defaulted on his Mosley claim, I dispute the majority’s conclusion that

AEDPA’s deferential standard of review continues to apply.

Absent de novo review by this Court, the merits of Fleming’s Mosley claim will

never have been fully considered by any court, state or federal, despite the majority’s

recognition that the claim was not procedurally defaulted. Such an outcome is

particularly unjust in this case because, as the majority acknowledges, “were Fleming’s

appeal a direct one to be reviewed de novo, the possibility exists that we might have

agreed with Fleming’s position.” Having properly raised his Mosley claim before the

trial court and pressed that claim at every stage of his state court proceedings, Fleming

is entitled to a full review of the merits of his claim. Fleming is entitled to de novo

review.

For these reasons, I do not agree with my colleagues’ analysis of Fleming’s

Mosley claim. At least until today, it seemed well-settled that a state court’s plain-error

review of a petitioner’s habeas claim did not constitute an adjudication “on the merits”

for purposes of 28 U.S.C. § 2254. In my opinion, that rule applies here and controls our

review of Fleming’s Mosley claim. Because the Michigan Court of Appeals reviewed

Fleming’s Mosley claim for plain error only, our review of that claim “is not

circumscribed by a state court conclusion.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).

And because there is no state court adjudication to which we must defer, we are free to

exercise our independent judgment and review Fleming’s claim de novo. See Maples,

340 F.3d at 436.

No. 07-2311 Fleming v. Metrish Page 34

II.

Applying de novo review, I conclude that Fleming’s confession should not have

been admitted at trial because the police ignored the rigid requirements of Mosley and

failed to “scrupulously honor” Fleming’s invocation of his right to remain silent.

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court established

certain procedural safeguards designed to protect the rights of a suspect, under the Fifth

and Fourteenth Amendments, to be free from compelled self-incrimination during

custodial interrogation. The Supreme Court specified, among other things, that if the

suspect “indicates in any manner, at any time prior to or during questioning, that he

wishes to remain silent, the interrogation must cease.” Id. at 473-74 (emphasis added).

The Court reasoned that, at this point, the suspect “has shown that he intends to exercise

his Fifth Amendment privilege,” and thus “any statement taken after the person invokes

his privilege cannot be other than the product of compulsion, subtle or otherwise.” Id.

at 474.

Although not all statements obtained after a suspect invokes his or her right to

remain silent are, as the majority puts it, “necessarily inadmissible in all cases,”

statements obtained after the suspect has decided to remain silent will be excluded where

the suspect’s “right to cut off questioning” was not “scrupulously honored.” Mosley,

423 U.S. at 104. In determining whether the police “scrupulously honored” a suspect’s

invocation of the right to remain silent, we must inquire into “the totality of the

circumstances surrounding the interrogation, to ascertain whether the accused in fact

knowingly and voluntarily decided to forgo his rights to remain silent and to have the

assistance of counsel.” Fare v. Michael C., 442 U.S. 707, 724-25 (1979).

In this case, the circumstances surrounding Fleming’s interrogation make clear

that the police did not “scrupulously honor” his decision to remain silent. On

November 19, 1999, Detective Robert Lesneski and other officers executed a search

warrant for Fleming’s residence and surrounding curtilage. When the police arrived at

his residence, Fleming initially was “very cooperative,” and even volunteered that the

police would find drugs (hashish) in a barn on his property. After locating the drugs,

No. 07-2311 Fleming v. Metrish Page 35

Detective Lesneski contacted a narcotics team from anther jurisdiction to assist the

search team in dealing with the drug evidence.

After securing the drugs, Detective Lesneski returned to speak with Fleming.

Detective Lesneski testified that, although Fleming was “not in custody at that time,” he

nevertheless advised Fleming of his Miranda rights and asked Fleming if he would be

willing to talk. Fleming responded that he did not want to talk about “that fucking

homicide.” A “short time later,” Detective Lesneski placed Fleming under arrest based

on the drug evidence collected, handcuffed him in front of his body with plastic hand

ties, and placed him in the back seat of a Michigan State Police cruiser, under the watch

of Trooper Devine.

Shortly thereafter, Detective Lesneski received a call informing him that the

search team had located a shotgun in a nearby creek. Detective Lesneski immediately

left the area where Fleming was being held to join the search team at that location.

When he arrived, Detective Lesneski was informed that the search team had located a

twelve-gauge shotgun wrapped in plastic and secured with duct tape. Detective Lesneski

briefly examined the weapon and determined that it was a Remington pump-action

shotgun, the same model as the weapon used to shoot the victim. Detective Lesneski

then sent the weapon to the forensics lab for further processing.

Sometime after Detective Lesneski left Fleming’s residence, Trooper Devine also

decided to join the search team at the creek. Trooper Devine transferred Fleming to the

front passenger seat of a narcotics van now at the scene, and asked Sergeant Robert

Clayton, a narcotics officer with the Ogemaw County Sheriff’s Department, to sit in the

van and watch Fleming. Fleming remained in the van for several hours while the search

of his residence and property continued, allegedly because the police lacked the

personnel to transport Fleming to jail without interrupting the search. During that time,

Sergeant Clayton and Fleming engaged in “small talk.”

Approximately two hours after Fleming was transferred to Sergeant Clayton’s

custody, the search team returned from the creek. Believing that they had just located

the murder weapon, the returning officers were visibly excited and began celebrating

No. 07-2311 Fleming v. Metrish Page 36

their discovery. From his vantage point in the van, Fleming could see the celebration.

Although Fleming could not hear what was being said outside the van, he testified that

he observed Detective Lesneski gesturing toward him and believed Detective Lesneski

to exclaim, “Hell, yeah, I got you!”

At this point, Sergeant Clayton told Fleming that things did not look good for

him, and then stated that it would be in Fleming’s “best interest” to “do the right thing.”

According to Fleming, Sergeant Clayton also warned: “If you have any chance at any

thing, . . . I would [] strongly recommend that you get with the program.” When he

testified about this particular moment, Fleming stated that he felt like “a whole garage

full of police officers” was “staring” at him, and he became very “concerned, upset,

[and] nervous.” Almost immediately thereafter, Sergeant Clayton asked Fleming if he

wanted to speak with Detective Lesneski. Fleming relented and agreed to speak with

Detective Lesneski.

A few minutes later, Sergeant Clayton informed Detective Lesneski that Fleming

wished to speak with him. A few more minutes passed before Detective Lesneski

walked over to the van, excused Sergeant Clayton, and sat down with Fleming. Fleming

recalled that he was very upset at the time, and began feeling nauseous, “like he had to

vomit.” Fleming acknowledges that Detective Lesneski was very accommodating, and

“pulled the van up” so that the other officers would not see Fleming crying. Detective

Lesneski also agreed to open a window or door to give Fleming some air.

Detective Lesneski testified that, after being summoned to the van by Sergeant

Clayton, he did not ask Fleming “any questions or begin interrogation at all.” In fact,

Detective Lesneski claims that he did not “sa[y] anything at all to [Fleming] prior to him

speaking out on these issues.” Rather, according to Detective Lesneski, Fleming

voluntarily proceeded to make several incriminating statements, ultimately confessing

that he shot and killed Scott York with the shotgun that the police had just found.

Fleming disputes Detective Lesneski’s version of events, especially with respect

to one crucial issue. Fleming claims that, before he made any incriminating statements,

Detective Lesneski stated that he was confident he had just found the murder weapon,

No. 07-2311 Fleming v. Metrish Page 37

and warned Fleming that “it [would] be within [Fleming’s] best interests to cooperate.”

At this point, Fleming relented and began talking to Detective Lesneski.

Rather than advising Fleming of his Miranda rights at this point, Detective

Lesneski waited until Fleming had confessed before interrupting him to remind him of

his rights. According to Detective Lesneski, after being readvised of his rights, Fleming

offered more details about the incident, such as the location of the shooting and what

type of gun and shells he used. Approximately one hour later, the police transported

Fleming to the Arenac County Sheriff’s Department, where Fleming was advised of his

Miranda rights yet again, and a recorded statement was taken. In his recorded statement,

Fleming again confirmed that he shot York, but now claimed that York had threatened

to kill Fleming and his family.

All told, the record indicates that the police advised Fleming of his Miranda

rights on three separate occasions over the course of the day: first, after the police

discovered drugs in Fleming’s barn; second, several hours later in the narcotics van after

Fleming already had confessed to Detective Lesneski; and, finally, at the police station

before Fleming gave a recorded statement. Sergeant Clayton and Detective Lesneski

claim that they never made any promises or threats to Fleming. Fleming, however,

claims that, while he was not “directly” threatened, Sergeant Clayton did warn him to

“get with the program” and Detective Lesneski did shout and gesture at him and then

implored him “to cooperate.”

Upon Fleming’s motion to exclude his confession, the trial court held a Walker

hearing to determine whether Fleming’s initial inculpatory statements to Detective

Lesneski were admissible at trial. As the majority points out, the parties dispute the

precise issue addressed at the Walker hearing. The State claims that the hearing

addressed only whether Fleming’s statements were “voluntary.” Fleming, on the other

hand, contends that defense counsel also asserted that Fleming’s statements should be

excluded under Mosley because Sergeant Clayton and Detective Lesneski continued to

interrogate Fleming and to pressure him to confess after he invoked his Fifth

No. 07-2311 Fleming v. Metrish Page 38

Amendment right to remain silent. After hearing argument from both sides, the trial

court concluded that Fleming’s statements were admissible.

After a three-day jury trial, Fleming was convicted of second-degree murder and

possession of a firearm during the commission of a felony. Fleming appealed his

conviction as a matter of right to the Michigan Court of Appeals. In an unpublished

opinion, the Michigan Court of Appeals affirmed Fleming’s conviction. Fleming, 2002

WL 988568. In reaching that conclusion, the Michigan Court of Appeals found that

Fleming had forfeited his Mosley claim because the Walker hearing “addressed only the

voluntariness of his confession.” Id. at *1. The Michigan Court of Appeals thus

reviewed that claim for plain error only. Id. The Michigan Court of Appeals did not

consider the merits of Fleming’s Mosley claim outside the context of its plain-error

inquiry. Id. at *1-2. The Michigan Supreme Court subsequently denied Fleming’s

application for leave to appeal. People v. Fleming, 659 N.W.2d 234 (Mich. 2003).

III.

In light of the Michigan Court of Appeals’ default ruling, if Fleming’s Mosley

claim is to be considered at all, it must be because the Michigan court’s determination

that Fleming had forfeited the claim was contrary to or an unreasonable application of

controlling law, or unreasonable in light of the record. 28 U.S.C. § 2254(d). And that

is precisely what the majority has determined. Although I agree with the majority’s

conclusion that Fleming’s Mosley claim was not procedurally defaulted, I write

separately on this point only because I disagree with the majority’s suggestion that this

holding rests on the State’s concession that the Mosley issue had been raised in state

court. Whether or not the State concedes the point, the record evinces that Fleming’s

Mosley claim was fairly presented at the Walker hearing, and thus the issue was properly

preserved for appeal.

The doctrine of procedural default provides: “In all cases in which a state

prisoner has defaulted his federal claims in state court pursuant to an independent and

adequate state procedural rule, federal habeas review of the claims is barred unless the

prisoner can demonstrate cause for the default and actual prejudice as a result of the

No. 07-2311 Fleming v. Metrish Page 39

alleged violation of federal law, or demonstrate that failure to consider the claims will

result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Federal

habeas review of a state court judgment thus is precluded under this doctrine only if the

state court judgment “rests on a state-law ground that is both ‘independent’ of the merits

of the federal claim and an ‘adequate’ basis for the court’s decision.” Harris v. Reed,

489 U.S. 255, 260 (1989).

In the direct review context, the adequate and independent state ground doctrine

is jurisdictional. In the collateral review context, however, the doctrine is based on

comity. See Coleman, 501 U.S. at 730-31 (“Without the rule, . . . habeas would offer

state prisoners whose custody was supported by independent and adequate state grounds

an end run around the limits of this Court’s jurisdiction and a means to undermine the

State’s interest in enforcing its laws.”). Nevertheless, the doctrine has a statutory

dimension in the habeas context because it serves to reinforce AEDPA’s exhaustion

requirement. See id. at 732 (“In the absence of the independent and adequate state

ground doctrine in federal habeas, habeas petitioners would be able to avoid the

exhaustion requirement by defaulting their federal claims in state court.”).

Under AEDPA’s exhaustion requirement, a habeas petitioner “shall not be

deemed to have exhausted the remedies available in the courts of the State, within the

meaning of this section, if he has the right under the law of the State to raise, by any

available procedure, the question presented.” 28 U.S.C. § 2254(c) (emphasis added).

To satisfy this requirement, a claim raised in a habeas petition must be “properly

presented” to the state courts in a procedural context where a merits review is possible.

See O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (“Section 2254(c) requires only

that state prisoners give state courts a fair opportunity to act on their claims.” (emphasis

in original)); Franklin v. Rose, 811 F.2d 322, 324-25 (6th Cir. 1987). Accordingly, it is

not necessary for the state courts to resolve the claim, only that it be fairly presented.

See O’Sullivan, 526 U.S. at 845.

As to Fleming’s Mosley claim, the Michigan Court of Appeals concluded that the

Walker hearing “addressed only the voluntariness of his confession,” and thus concluded

No. 07-2311 Fleming v. Metrish Page 40

that the claim had been “forfeited.” Fleming, 2002 WL 988568, at *1. The district court

rejected that conclusion as contrary to controlling law, instead finding that the “clear

record” showed that Fleming properly raised the issue and thus preserved his Mosley

claim. Fleming v. Metrish, No. 04-CV-72365, 2007 WL 2875281, at *4 (E.D. Mich.

Sept. 28, 2007) (citing Walker v. Engle, 703 F.2d 959, 967 (6th Cir. 1983)). The

transcript of Fleming’s Walker hearing confirms the district court’s conclusion.

In determining whether a claim has been “fairly presented,” this Court has

focused on four actions that a defendant can take that are significant in preserving a

claim for habeas review: “(1) reliance upon federal cases employing constitutional

analysis; (2) reliance upon state cases employing federal constitutional analysis;

(3) phrasing the claim in terms of constitutional law or in terms sufficiently particular

to allege a denial of a specific constitutional right; or (4) alleging facts well within the

mainstream of constitutional law.” McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.

2000). As the record demonstrates, Fleming’s counsel took all four of these actions

during the Walker hearing.

As to the first two factors, there is no serious question that defense counsel relied

on both federal and state authority recognizing that the police must respect a suspect’s

right to remain silent. During closing arguments, defense counsel expressly referred to

the Supreme Court’s decision in Mosley, as well as cited to and quoted from People v.

Catey, 356 N.W.2d 241 (Mich. Ct. App. 1984), the leading Michigan case interpreting

and applying Mosley.

Relying on both Catey and Mosley, Fleming’s counsel also unambiguously

framed the issue in terms of a Mosley violation, arguing that Fleming’s confession

should be excluded because the police “ignored” his assertion of his Fifth Amendment

right to remain silent. Quoting from Catey, defense counsel also specifically argued that

the “subsequent interrogation” by Sergeant Clayton and Detective Lesneski had “the

characteristics of a repeated effort to wear down the defendant’s resistance.” To support

that claim, defense counsel elicited testimony that went not just to the voluntariness

issue, but also to the circumstances under which Fleming ultimately was persuaded to

No. 07-2311 Fleming v. Metrish Page 41

confess despite his earlier assertion of his intention to remain silent. The record thus

confirms that defense counsel also satisfied the final two factors that this Court has

considered “significant to the determination whether a claim has been ‘fairly

presented.’” McMeans, 228 F.3d at 681.

Despite this clear record, the State argues that Fleming failed to fairly present his

Mosley claim to the trial court because Fleming’s suppression motion challenged the

admissibility of the confession on voluntariness grounds only. During closing arguments

at the Walker hearing, the State certainly urged the court to focus on “nothing but

voluntariness,” and the trial court did state that the “only issue” it needed to resolve was

“whether or not it was voluntary.” But the trial court apparently understood the

voluntariness inquiry as encompassing the Mosley issue,6 as it ultimately held that,

“[g]iven all the circumstances, I – I believe that [Fleming’s] statement under Edwards,

Mosley, Katey [sic] that under this fact scenario, it’s voluntary.”

In any event, regardless of whether the state trial court couched its ruling in terms

of voluntariness, the only relevant question for determining procedural default is whether

Fleming “fairly presented” his Mosley claim to the state courts. See O’Sullivan, 526

U.S. at 844-45. Because defense counsel undoubtedly did so, I would affirm the district

court’s determination that the Michigan Court of Appeals’ ruling that Fleming forfeited

his Mosley claim is an “unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

6

The trial court seems to have conflated the inquiry into the voluntariness of Fleming’s confession

with the inquiry required under Mosley. The two inquiries, however, are distinct. “While the suspect’s

state of mind is central to the voluntariness finding, the Mosley test focuses on what the police did, and

when, after the suspect exercised his or her right to remain silent.” United States v. Barone, 968 F.2d

1378, 1384 (1st Cir. 1992). Thus, under Miranda and Mosley, “a court need determine specifically

whether there has been a voluntary waiver only after the government has carried its burden of showing that

it complied with the required procedures.” Id. at 1383 (citations omitted).

No. 07-2311 Fleming v. Metrish Page 42

IV.

Having rejected the Michigan Court of Appeals’ default ruling as contrary to

controlling authority or unreasonable in light of the record, our review of Fleming’s

Mosley claim is not constrained by that court’s plain-error review. Regardless of

whether the Michigan courts addressed aspects of Fleming’s claim in conducting that

inquiry, it is evident that the Michigan courts never considered the merits of Fleming’s

Mosley claim outside the context of the plain-error inquiry. With no state court

adjudication “on the merits” to which we must defer, we review the claim de novo.

In the habeas context, this Court reviews a district court’s legal conclusions de

novo, but will not set aside its factual findings unless they are clearly erroneous. Dyer

v. Bowlen, 465 F.3d 280, 283-84 (6th Cir. 2006). State-court determinations, on the

other hand, generally are governed by the standard of review set forth in the AEDPA.

28 U.S.C. § 2254(d). As explained above, however, AEDPA’s deferential standard of

review applies only to claims that were adjudicated “on the merits” by the state courts.

28 U.S.C. § 2254(d). Where a state court does not reach the merits of a claim, this Court

applies de novo review. Danner, 448 F.3d at 376; Maples, 340 F.3d at 436.

Here, the Michigan Court of Appeals found that Fleming had forfeited his Mosley

claim by failing to raise it at the Walker hearing. Fleming, 2002 WL 988568, at *1.

Based on the default ruling, the Michigan Court of Appeals reviewed Fleming’s claim

for plain error only. Id. Under that standard, the Michigan Court of Appeals required

Fleming to establish that the trial court’s ruling regarding the “the voluntariness of his

confession” was in error, and that “the error was plain, i.e. clear or obvious . . . [and] the

plain error affected substantial rights.” Id. In addition, the Michigan Court of Appeals

noted that, even if Fleming made such a showing, “an appellate court must then exercise

its discretion in deciding whether to reverse.” Id. (emphasis added). The court further

noted that “[r]eversal is warranted only when the plain, forfeited error resulted in the

conviction of an actually innocent defendant or when an error seriously affected the

fairness, integrity or public reputation of judicial proceedings independent of the

defendant’s innocence.” Id. (internal quotation marks omitted). Clearly, the application

No. 07-2311 Fleming v. Metrish Page 43

of the plain-error standard of review placed significant additional burdens on Fleming

over and above the showing required under Mosley.

For the reasons explored in detail above, I believe that controlling authority

dictates that the Michigan Court of Appeals’ plain-error analysis does not constitute an

adjudication “on the merits” for purpose of AEDPA. See Benge, 474 F.3d at 246;

Lundgren, 440 F.3d at 765. Ignoring this controlling precedent, the majority concludes

that AEDPA’s deferential standard of review applies. I cannot subscribe to that

conclusion.

In light of the Michigan court’s ruling that Fleming had forfeited his Mosley

claim, if we are to consider that claim at all it must be because the Michigan court’s

default ruling was contrary to or an unreasonable application of controlling law or

unreasonable in light of the record. 28 U.S.C. § 2254(d). Although the majority rejects

the Michigan court’s determination that the claim had been procedurally defaulted, it

nevertheless continues to insist that the state court’s adjudication is entitled to deference

under AEDPA. But once we determine that the Michigan court’s default ruling was in

error, we no longer are bound by whatever “safety valve” review the state courts may

have applied to avoid serious injustice, regardless of whether that inquiry explored the

merits of Fleming’s claim to some extent. See Lundgren, 440 F.3d at 765 (holding that

a state court’s plain-error inquiry “is not equivalent to a review of the merits”); see also

Roy, 907 F.2d at 390 (holding that a state court’s plain-error inquiry is “not sufficiently

a ruling on the merits”).

If, as the majority now holds, the Michigan court’s default ruling is wrong as a

matter of law, then we no longer owe deference to the Michigan court’s undeniably more

burdensome review of Fleming’s claim. Thus, the deferential review required under

AEDPA is inapplicable, and we must review the claim de novo. Maples, 340 F.3d at 436

(“Where, as here, the state court did not assess the merits of a claim properly raised in

a habeas petition, the deference due under AEDPA does not apply.”).

No. 07-2311 Fleming v. Metrish Page 44

V.

Applying de novo review, as I conclude we must, it is evident that the police

failed to fully respect and scrupulously honor Fleming’s decision to cut off questioning.

A. A Suspect’s Fifth Amendment Right to Cut Off Questioning

The Fifth Amendment provides that “[n]o person shall be . . . compelled in any

criminal case to be a witness against himself.” U.S. CONST. amend. V. This privilege

against self-incrimination requires that law enforcement officials “must cease”

questioning any suspect who invokes his or her right to remain silent. Miranda, 384

U.S. at 473-74.

The Miranda safeguards “come into play whenever a person in custody is

subjected to either express questioning or its functional equivalent.” Rhode Island v.

Innis, 446 U.S. 291, 300-01 (1980). In other words, the term “interrogation” under

Miranda “refers not only to express questioning, but also to any words or actions on the

part of the police . . . that the police should know are reasonably likely to elicit an

incriminating response from the suspect.” Id. at 301. Whether police conduct

constitutes “interrogation” is determined “without regard to objective proof of the

underlying intent of the police.” Id. Thus, if a suspect invokes his or her Fifth

Amendment right to remain silent, the police “must cease” all interrogation of the

suspect, including any comments that “the police should know are reasonably likely to

elicit an incriminating response.”

In defining the scope of Miranda’s protections, the Supreme Court has concluded

that “the admissibility of statements obtained after the person in custody has decided to

remain silent depends . . . on whether his right to cut off questioning was scrupulously

honored.” Mosley, 423 U.S. at 104 (internal quotation marks omitted) (emphasis added).

That is to say, the police violate a suspect’s Fifth Amendment rights where they “fail[]

to honor a decision of a person in custody to cut off questioning, either by refusing to

discontinue the interrogation upon request or by persisting in repeated efforts to wear

down his resistance and make him change his mind.” Id. at 105-06. The Mosley Court,

No. 07-2311 Fleming v. Metrish Page 45

however, rejected as “extreme” the notion that Miranda requires “a blanket prohibition

against the taking of voluntary statements or a permanent immunity from further

interrogation, regardless of the circumstances,” reasoning that such a blanket rule

“would transform the Miranda safeguards into wholly irrational obstacles to legitimate

police investigative activity, and deprive suspects of an opportunity to make informed

and intelligent assessments of their interests.” Id. at 102.

The facts in Mosley supported the conclusion that the defendant’s rights had been

scrupulously honored because his subsequent statements were made to another officer,

regarding another crime, and after a significant period of time had elapsed since the

suspect had invoked his Fifth Amendment rights. 423 U.S. at 104-05. In addition, the

Court emphasized that the suspect “was given full and complete Miranda warnings at

the outset of the second interrogation,” and was “reminded again that he could remain

silent and could consult with a lawyer, and was carefully given a full and fair

opportunity to exercise these options.” Id. at 104-05 (emphasis added).

In assessing Fleming’s claim, we first must determine whether the comments

made by Detective Lesneski and Sergeant Clayton constitute “interrogation” under Innis.

If so, we then must consider whether the police fully respected Fleming’s decision to

remain silent. That inquiry requires us to consider the totality of the circumstances,

including, among other things, whether: (1) Fleming was advised of his Miranda rights

before the initial interrogation; (2) questioning stopped immediately once Fleming

asserted his right to remain silent; (3) the police waited a significant period of time after

Fleming’s invocation of his right to remain silent before questioning him again;

(4) Fleming received fresh Miranda warnings before the interview that led to his

confession; and (5) the subsequent interrogation concerned the same crime that was the

subject of the first interrogation. Because we must examine the totality of the

circumstances, these factors are merely signposts that help guide our inquiry. The

fundamental consideration is, as the First Circuit has put it, whether the suspect

remained “in charge of the decision whether and to whom he would speak.” United

States v. Andrade, 135 F.3d 104, 107 (1st Cir. 1998).

No. 07-2311 Fleming v. Metrish Page 46

B. Innis and Mosley Analysis

Approximately one hour into the search of Fleming’s property, the police

discovered drugs in Fleming’s barn. At that point, Detective Lesneski advised Fleming

of his rights, and asked if Fleming would be willing to talk to him. Fleming

emphatically stated that he would not discuss any matters related to the homicide.

Although Fleming did not state that he wished to remain “silent,” the Supreme Court has

long held that “no ritualistic formula or talismanic phrase is essential in order to invoke

the privilege against self-incrimination.” Emspak v. United States, 349 U.S. 190, 194

(1955). Fleming’s refusal to discuss the homicide was sufficient to invoke his Fifth

Amendment right to remain silent. See McGraw v. Holland, 257 F.3d 513, 518-19 (6th

Cir. 2001) (holding that suspect invoked her Fifth Amendment privilege where she

repeatedly made statements such as “I don’t want to talk about it” in response to

questions about the crime).

Detective Lesneski initially respected Fleming’s decision, and immediately

stopped questioning Fleming. Fleming was then arrested, handcuffed, and placed in the

backseat of a state police vehicle. An hour or so later, Fleming was transferred from the

backseat of the police cruiser to the front passenger seat of a police van.

There is no indication in the record that Fleming was transferred to Sergeant

Clayton’s custody in order to facilitate further questioning. Sergeant Clayton was called

to the scene only after the search was underway, and only because the search team

discovered narcotics on the premises. Moreover, Sergeant Clayton is a member of the

narcotics team from the Ogemaw County Sheriff’s Department, not the Arenac County

Sheriff’s Department, which was leading the investigation into York’s murder. It thus

is possible that Sergeant Clayton was unaware of the underlying homicide investigation

that was the impetus for the search being conducted. In fact, Sergeant Clayton testified

that he did not know what evidence the rest of the search team was looking for when

they left to search the nearby creek.

Sergeant Clayton’s motives, however, are irrelevant. Innis, 446 U.S. at 301.

Because Fleming had invoked his Fifth Amendment right to remain silent, all coercive

No. 07-2311 Fleming v. Metrish Page 47

police practices “must cease,” and the police were required to “scrupulously honor”

Fleming’s decision to remain silent. Although Detective Lesneski’s direct interrogation

ceased, the police officers at the scene—whether intentionally or not is

irrelevant—persisted “in repeated efforts to wear down [Fleming’s] resistance” to

questioning. Mosley, 423 U.S. 105-06. Fleming was arrested, placed in handcuffs, and

then detained in custody at the scene for several hours while the search of his residence

and property continued. The police kept Fleming in position to observe their search, and

celebrated their discovery of the shotgun right in front of him. In fact, on Fleming’s

account, Detective Lesneski gestured in Fleming’s direction and declared “Hell, yeah,

I got you!” At this point, Sergeant Clayton told Fleming that things did not look good

for him and then stated that it would be in Fleming’s “best interest” to “do the right

thing.” According to Fleming, Sergeant Clayton also “strongly recommend[ed]” that

Fleming “get with the program.” Sergeant Clayton then asked Fleming whether he

wished to talk to Detective Lesneski. At this point, Fleming relented.

Considering the totality of the circumstances, it is evident that the police did not

“scrupulously honor” Fleming’s decision to remain silent. Even if Fleming’s version of

events is discounted, Sergeant Clayton’s statement that Fleming should “do the right

thing,” when considered in context, rose above the level of mere admonition. As an

experienced police officer, Sergeant Clayton certainly should have known that such a

statement, especially when made at the scene of an ongoing warrant search and shortly

after the discovery of the murder weapon, was “reasonably likely to elicit an

incriminating response.” Innis, 446 U.S. at 301.

That conclusion is all the more certain if Fleming’s version of events is accepted.

According to Fleming, Sergeant Clayton also “strongly” encouraged him to “get with

the program.” Fleming also claims that Detective Lesneski explicitly advised him that

it was in his best interest “to cooperate.” Although neither Sergeant Clayton nor

Detective Lesneski ever directly asked Fleming about the homicide, these statements,

especially when taken together, demonstrate a persistent and not-so-subtle effort to

persuade Fleming to discuss the homicide. Accordingly, I respectfully must disagree

No. 07-2311 Fleming v. Metrish Page 48

with the majority’s conclusion that these statements do not rise to the level of

“interrogation” under Innis.

Recognizing the inherently “coercive pressures of the custodial setting,” the

Mosley Court emphasized that, once a suspect decides to terminate an interrogation, that

decision must be “fully respected” and the police must not “try either to resume the

questioning or in any way to persuade [a suspect] to reconsider his position.” 423 U.S.

at 104 (emphasis added). Although Mosley stopped short of creating a per se rule

prohibiting the police from ever asking a suspect to reconsider his or her refusal to

answer questions, it does require that the police make every effort to ensure that “such

reconsideration is urged in a careful, noncoercive manner at not too great length and in

the context that a defendant’s assertion of his right not to speak will be honored.”

United States v. Collins, 462 F.2d 792, 797 (2d Cir. 1972).

The conduct of the police in this case is dramatically different in every relevant

respect from the conduct that the Supreme Court found acceptable in Mosley. Here, the

police did not seek to reinitiate questioning regarding a different crime. The police also

did not reinitiate contact with Fleming in a careful or noncoercive manner. Nor did the

police readvise Fleming of his Miranda rights before taking his statement. Rather, the

police handcuffed Fleming and kept him locked in a car for several hours.7 Then, they

rejoiced in the discovery of evidence right in front of him, with the lead investigator

gesturing and shouting at him. After building a rapport with Fleming during hours of

“small talk,” Sergeant Clayton then advised Fleming to “do the right thing” and

encouraged him to “get with the program.” And putting to rest any doubt that these

comments were intended to do anything other than wear down Fleming’s resistance to

7

The majority considers the time that elapsed between Fleming’s initial refusal to answer

questions about the homicide to cut in favor of its conclusion that there is no Mosley violation. Although

the time factor may lean slightly in the State’s favor, this cannot be the crucial factor in determining

whether a Fifth Amendment violation occurred in this case. Unlike Mosley, the conditions of Fleming’s

detainment did not permit him to independently reconsider his decision to remain silent. Fleming was kept

in handcuffs at the scene the entire time. He also was subjected to repeated efforts by the police to

convince him to discuss the homicide. Considering the totality of the circumstances, it does not appear

that sufficient time elapsed to neutralize the “inherently compelling pressures” of Fleming’s circumstances.

Miranda, 384 U.S. at 467. In any event, other factors are much more probative of whether a Mosley

violation occurred in this case.

No. 07-2311 Fleming v. Metrish Page 49

questioning, Sergeant Clayton almost immediately asked Fleming if he wanted to speak

to Detective Lesneski. And when Detective Lesneski arrived, he also pressured Fleming

“to cooperate.”8 At this point, Fleming relented.

If the rule announced in Mosley is to have any meaning at all, certainly it must

protect against such coercive tactics. Certainly, it must prevent law enforcement

personnel from repeatedly pressuring a suspect to “do the right thing” and “get with the

program.” Certainly, it must preclude the police from explicitly pressuring a suspect “to

cooperate” after the suspect already has invoked his or her Fifth Amendment right to cut

off questioning.

Whether overt or more subtle, Mosley protects against the state’s attempts to

encourage, pressure, persuade, or coerce a suspect to abandon his or her decision to

remain silent. Although Mosley permits the police to present new information to a

suspect so that he is able “to make informed and intelligent assessments of [his]

interests,” 423 U.S. at 102, encouraging a suspect to “get with the program” and “do the

right thing” so that he is not “sorry” for something he has not said certainly exceeds the

scope of permissible interaction with a defendant who already has invoked his right to

remain silent. Indeed, each of these comments evinces an unequivocal intent to persuade

Fleming to confess, or at least abandon his decision to remain silent. Such efforts plainly

are inconsistent with the duty of the police under Mosley to “scrupulously honor” a

suspect’s decision to remain silent.

Contrary to the majority’s suggestion, Fleming is not required to show that the

police interrogation was “very, very one-sided,” as was the case in Thompkins v.

Berghuis. Rather, Fleming must show only that the police failed to “scrupulously honor”

his decision to remain silent. 423 U.S. at 104. In fact, it is the state that bears the

8

In an effort to support its tenuous conclusion, the majority mischaracterizes some of Detective

Lesneski’s comments. In particular, the majority claims that Detective Lesneski’s “suggestion” to

cooperate was accompanied by “a caution not to say anything about which he [Fleming] would be ‘sorry.’”

But, as the majority opinion concedes earlier, Detective Lesneski told Fleming that he should not “be sorry

for something you have or haven’t said.” Far from urging Fleming to be cautious, the suggestion that

Fleming should not be sorry for something he has not said is yet another example of Detective Lesneski

trying to chip away at Fleming’s decision to remain silent.

No. 07-2311 Fleming v. Metrish Page 50

“heavy burden” of demonstrating that the right to remain silent, once invoked, in fact has

been “knowingly and voluntarily waived.” North Carolina v. Butler, 441 U.S. 369, 372-

73 (1979) (citation omitted). As the Third Circuit has noted, in those cases “where the

right to remain silent was held not to have been scrupulously honored, the circumstances

lead to a conclusion that the police resumed questioning for no other reason than to

induce the defendant to change his mind.” Vujosevic v. Rafferty, 844 F.2d 1023, 1029

(3d Cir. 1988) (citing United States v. Charlton, 565 F.2d 86 (6th Cir. 1977)). Such is

the case here, as the comments by Sergeant Clayton and Detective Lesneski obviously

were made “for no other reason than to induce” Fleming to abandon his decision not to

answer questions about the homicide.

In describing the twin pillars of Miranda’s prophylactic warnings—the right to

counsel and the right to remain silent—the Supreme Court repeatedly has insisted on a

“relatively rigid” application of these requirements. Fare, 442 U.S. at 718. Underlying

the Court’s insistence on such rigidity is the recognition that “the coercive setting of

custodial interrogation is ready-made for the infringement, whether intentional or

inadvertent, of constitutional protections, such that suspects must be plainly advised of

their rights so they may act on them.” Van Hook v. Anderson, 488 F.3d 411, 430 (6th

Cir. 2007) (Cole, J., dissenting). A rigid application of Mosley thus is necessary to

protect against the inherently coercive pressures of the custodial setting, and to ensure

that an in-custody confession is the result of a knowing and voluntary waiver of an

individual’s privilege against self-incrimination.

If, as the majority believes, the rule announced in Mosley tolerates the coercive

pressures applied here, Mosley’s admonition that the police must “scrupulously honor”

and “fully respect” a suspect’s decision to cut off questioning will be rendered nearly

meaningless. Indeed, on the majority’s view, Mosley will protect against only the most

egregious coercive practices. Badgering a suspect under the hot lights of an

interrogation room is not the only means of wearing down a suspect’s resistance to

answering questions. To remain a viable deterrent against more subtle coercive

practices, Mosley must be applied rigidly. See Van Hook, 488 F.3d at 430-31 (Cole, J.,

No. 07-2311 Fleming v. Metrish Page 51

dissenting) (detailing the Supreme Court’s insistence on a rigid application of the

parallel rule of Edwards v. Arizona, 451 U.S. 477 (1981)).

Because the investigating officers did not scrupulously honor Fleming’s decision

to cut off questioning, any statements obtained after Fleming asserted his Fifth

Amendment privilege were obtained in violation of Mosley and thus should not have

been admitted into evidence.

C. Harmless Error Analysis

Where a confession has been erroneously admitted in violation of a defendant’s

Fifth Amendment rights, this constitutional error is subject to a harmless error analysis.

See Arizona v. Fulminante, 499 U.S. 279, 310-11 (1991) (Rehnquist, C.J., delivering the

opinion of the Court with respect to this issue). To determine whether an error is

harmless, this Court considers the “‘prejudicial impact of [the] constitutional error’” and

“whether the constitutional violation ‘had a substantial and injurious effect or influence

in determining the jury’s verdict.’” Vasquez v. Jones, 496 F.3d 564, 575 (6th Cir. 2007)

(quoting Fry v. Pliler, 551 U.S.112, 127 S. Ct. 2321, 2328 (2007), and Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993)). This standard applies in the context of § 2254

habeas claims regardless of whether the state courts recognized the error. Vasquez, 496

F.3d at 575.

Given the importance of Fleming’s statements in proving the State’s case, the

admission of Fleming’s confession was not harmless error. Fleming’s

confession—along with his recorded statements and testimony at trial, which are

discussed below—undoubtedly was the strongest evidence of his guilt. Other than

Fleming’s own statements, the prosecution introduced no evidence corroborating that

Fleming shot York or was ever present at the scene of the crime. Without Fleming’s

statements, the prosecution also would have been unable to provide the jury with a

motive. Fleming’s statements also were crucial in linking the gun to Fleming because

No. 07-2311 Fleming v. Metrish Page 52

there was no physical evidence linking Fleming to the murder weapon.9 Consequently,

without Fleming’s own incriminating statements, the prosecution would not have been

able to establish the most critical elements of its case against Fleming.

Fleming’s confession and testimony thus were very powerful and prejudicial

evidence. See Fulminante, 499 U.S. at 296 (White, J., delivering the opinion of the

Court as to this issue) (“A confession is like no other evidence. Indeed, the defendant’s

own confession is probably the most probative and damaging evidence that can be

admitted against him.” (internal quotations and citation omitted)). Therefore, the

admission of Fleming’s incriminating statements was not harmless error because it

prejudicially impacted Fleming’s trial and had a “substantial and injurious effect or

influence in determining the jury’s verdict.” Vasquez, 496 F.3d at 575. See

Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir. 1990) (en banc) (finding that

admission of confession obtained in violation of Miranda was not harmless error

because “the portion of [the defendant’s] confession taken after the Miranda violation

– other than the inferences to be made from the fact of the robbery and shooting – was

the only concrete, noncircumstantial piece of evidence the state had to prove the

premeditation element of the crime”).

D. Post-Miranda Statements and Trial Testimony

The State argues that any error was harmless because Fleming’s first confession

was merely cumulative of Fleming’s subsequent statements to the police and his own

testimony at trial. This argument, however, assumes that Fleming’s subsequent

statements to the police and his testimony at trial should not also be excluded. That

assumption is mistaken. Although Fleming made additional incriminating statements

to the police after he received a fresh Miranda warning, and also testified at trial to

9

The only evidence to this effect was testimony that Fleming owned a shotgun that looked similar

to or was the same model as the shotgun found in the creek. Although the shotgun was discovered in a

stream on or near Fleming’s property, Fleming was renting the property at the time, the property was

expansive and open, and the location where the gun was found was a part of the creek that was “kind of

a party spot, or used to be.”

No. 07-2311 Fleming v. Metrish Page 53

shooting York, those statements also should have been excluded because Fleming’s first

confession was elicited in violation of Mosley.

Under Oregon v. Elstad, 470 U.S. 298 (1985), if an interrogation elicits a

voluntary confession but the interrogating officers failed to administer a Miranda

warning, subsequent incriminating statements are not necessarily poisoned by the fact

that the first confession occurred without a proper Miranda warning. Id. at 309-10.

However, Elstad applies only where the first confession is “unaccompanied by any

actual coercion or other circumstances calculated to undermine the suspect’s ability to

exercise his free will” or otherwise the product of a constitutional violation, such as

“police infringement of the Fifth Amendment itself.” Id. 309.

In this case, unlike Elstad, the failure of the police to scrupulously honor

Fleming’s invocation of his right to remain silent was not merely a procedural error in

administering Miranda warnings. Rather, the investigating officers’ repeated efforts to

wear down Fleming’s resistance to questioning constitute “police infringement of the

Fifth Amendment itself.”10

Other relevant factors that traditionally guide our inquiry into whether a

confession obtained in the wake of a Fifth Amendment violation should be admitted into

evidence also weigh in favor of exclusion. In deciding whether a second confession has

been tainted by a prior coerced statement, the Supreme Court has instructed courts to

“examine the surrounding circumstances and the entire course of police conduct with

respect to the suspect.” Elstad, 470 U.S. at 318. In particular, courts must consider “the

time that passes between confessions, the change in place of interrogations, and the

10

Logically, this would seem to be true of all cases involving Mosley violations, especially where

the police engaged in deliberate “efforts to wear down [a suspect’s] resistance and make him change his

mind,” Mosley, 423 U.S. at 105-06, because such coercive police tactics are akin to the deliberate “police

strategy adapted to undermine the Miranda warnings” that the Supreme Court held in Missouri v. Seibert,

542 U.S. 600, 616 (2004) (plurality), requires the exclusion of post-Miranda statements. Taken together

with Justice Kennedy’s more narrow concurrence, a majority of the Court in Seibert agreed that a

“deliberate” question-first strategy would preclude post-warning statements unless curative measures were

taken. Id. at 622 (Kennedy, J., concurring) (“The admissibility of postwarning statements should continue

to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the

deliberate two-step strategy has been used, postwarning statements that are related to the substance of

prewarning statements must be excluded unless curative measures are taken before the postwarning

statement is made.”).

No. 07-2311 Fleming v. Metrish Page 54

change in identity of the interrogators.” Id. at 310. Whether effective Miranda warnings

preceded the subsequent statements also is relevant. Westover v. United States, decided

together with Miranda, 384 U.S. at 496-97.

In Fleming’s case, an examination of these factors makes clear that there was no

“break in the stream of events . . . sufficient to insulate [his post-Miranda] statement

from the effect of all that went before.” Clewis v. State of Texas, 386 U.S. 707, 710

(1967). Fleming’s subsequent incriminating statements were elicited in close proximity

to the first, unconstitutionally-obtained confession. See Seibert, 542 U.S. at 614 (“[I]t

would ordinarily be unrealistic to treat two spates of integrated and proximately

conducted questioning as independent interrogations subject to independent evaluation

simply because Miranda warnings formally punctuate them in the middle.”). And,

unlike other cases where this Court has permitted the admission of subsequent

statements, there was no relevant change in Fleming’s custodial conditions. See Coomer

v. Yukins, 533 F.3d 477, 491 (6th Cir. 2008) (upholding as reasonable the admission of

subsequent statements elicited after “several hours had passed since her first oral

confession” because police informed the defendant that “circumstances had changed

[and] that she was now in custody”); United States v. McConer, 530 F.3d 484, 497 (6th

Cir. 2008) (finding no error in admission of incriminating post-Miranda statements made

after initial unwarned but voluntary statements that were not elicited as the result of

“interrogation”). Given that Detective Lesneski’s second set of Miranda warnings was

delivered in the middle of a confession that was elicited in violation of Mosley,

Fleming’s post-Miranda statements also should have been excluded. See Untied States

v. Pacheco-Lopez, 531 F.3d 420, 429-30 (6th Cir. 2008).

Whether Fleming’s trial testimony also is tainted by the admission of Fleming’s

prior incriminating statements is a closer call. Because the trial court failed to exclude

statements elicited in violation of Fleming’s Fifth Amendment rights, it is impossible to

say whether Fleming would have adopted a different trial strategy and decided not to

testify in his own defense. Compare Burks v. Perini, No. 85-3507, 1986 WL 18388, at

*1 (6th Cir. Nov. 25, 1986) (“Accordingly, this court concludes that the government’s

No. 07-2311 Fleming v. Metrish Page 55

use of Burks’ involuntary statement did not induce him to testify on his own behalf and

that the trial court’s decision to admit his confession, although erroneous under the

circumstances, constituted harmless error.”). Because the entire thrust of Fleming’s trial

strategy was determined by the trial court’s failure to exclude his confession, however,

Fleming’s trial testimony must be set aside in determining whether harmless error

occurred. See Kordenbrock, 919 F.2d at 1099-1100.

VI.

For the foregoing reasons, I respectfully dissent from the majority’s resolution

of Fleming’s Mosley claim. I would affirm the district court’s decision to grant the

habeas petition on that basis and order that Fleming be retried or released.