Vaughn Mitchell v. Duncan MacLaren

RECOMMENDED FOR FULL-TEXT PUBLICATION

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

File Name: 19a0176p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

VAUGHN MITCHELL, ┐

Petitioner-Appellant, │

│

> No. 17-2444

v. │

│

│

DUNCAN MACLAREN, Warden, │

Respondent-Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Flint.

No. 4:15-cv-10356—Linda V. Parker, District Judge.

Argued: May 9, 2019

Decided and Filed: August 1, 2019

Before: SUHRHEINRICH, BUSH, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: Angela Dunay, Seth Yost, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,

Charlottesville, Virginia, for Appellant. Scott R. Shimkus, OFFICE OF THE MICHIGAN

ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Angela Dunay, Seth

Yost, Stephen L. Braga, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,

Virginia, for Appellant. Scott R. Shimkus, Andrea M. Christensen-Brown, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

_________________

OPINION

_________________

JOHN K. BUSH, Circuit Judge. Vaughn Mitchell was convicted in Wayne County,

Michigan, of first-degree murder, carjacking, and felony firearm possession for chasing and

No. 17-2444 Mitchell v. MacLaren Page 2

beating Michael Jorden, shooting and killing him, and then stealing his car. In his habeas

petition, pursuant to 28 U.S.C. § 2254, Mitchell raises two issues: (1) whether the interrogating

officer (Detective Collins) misled Mitchell to believe that he did not have a right under the Fifth

Amendment to have counsel present during interrogation and misstated the availability of a

defense attorney in the county where Mitchell was interrogated; and (2) whether Detective

Collins provided Miranda1 warnings to Mitchell in “mid-stream,” in violation of Supreme Court

case law discrediting this two-step technique.

The manner in which Collins interacted with Mitchell regarding the right to counsel is

troubling. However, the Michigan Supreme Court’s decision—that the Miranda warnings,

considered as a whole, adequately advised Mitchell of his rights—was not contrary to or an

unreasonable application of Supreme Court precedent. Accordingly, we AFFIRM the district

court’s denial of Mitchell’s § 2254 petition.

I. BACKGROUND

On June 21, 2008, Mitchell and Jorden got into a dispute over the ownership of a gun,

resulting in Jorden’s death.

According to Mitchell, his father, Vaughn Brown, had given him a gun and Mitchell had,

in turn, given that weapon to Jorden. Jorden subsequently lost the gun but gave Mitchell

another, which Mitchell mistakenly thought was a replacement for the lost firearm until Jorden

asked Mitchell to pay for the new one. Before further addressing the matter with Jorden,

Mitchell called his father for “advice as to the situation.” R. 10-11, PageID 1130.

Brown, Mitchell, and Jorden then all met, and discussions over the ownership of the gun

soon escalated into a physical altercation. Apparently fearing that Jorden would use a gun on

him, Mitchell used a pipe-like metal object given to him by Brown to strike Jorden on the head.

Jorden retreated, but Mitchell pursued, hitting him at least twice more. What happened next is

subject to dispute based on differing accounts of witnesses. The disagreement essentially boils

down to whether Brown or Mitchell shot Jorden. The jury determined that Mitchell fired a shot

1See Miranda v. Arizona, 384 U.S. 436 (1966).

No. 17-2444 Mitchell v. MacLaren Page 3

that killed Jorden, and then either Brown or Mitchell shot at Jorden’s body multiple times. The

jury also determined that, after the shooting, Mitchell took Jorden’s keys and money and drove

off in Jorden’s vehicle.

Mitchell’s affidavit recounts the following as to his arrest and interrogation. He was

arrested on September 9, 2008. The following morning, Detective Collins took Mitchell out of

his cell, interrogated him for thirty minutes without reading him his Miranda rights, and then

returned him to his cell. In the afternoon, Collins again removed Mitchell from his cell and

again questioned him without Miranda warnings. During this second interrogation, Mitchell told

Collins that there had been “an incident about a gun before June 21,” R. 1-2, PageID 169

(emphasis added), prompting Collins to ask Mitchell about the night of June 21, when the

shooting happened. Mitchell responded that “there was a lot of us who were just hanging around

getting ready to go out.” Id. at PageID 169–70. When Collins pressed for further details,

Mitchell told Collins that he “would tell him what happened,” but that Mitchell would need “to

start from the beginning so he would understand.” “As soon as I said this,” according to

Mitchell’s affidavit, “Detective Collins stopped me.” Id. at PageID 170. Collins then took

Mitchell upstairs to an interrogation room to be Mirandized and video-recorded.

Collins’s recollection of his interaction with Mitchell is somewhat different than

Mitchell’s. Collins testified at trial that he had only one conversation with Mitchell prior to the

video-recorded interrogation and that the conversation lasted approximately five minutes.

During this conversation, Collins told Mitchell he knew Mitchell was involved in a homicide

because an eyewitness linked Mitchell to the crime. Collins then asked Mitchell to confirm his

involvement, “[a]nd when he started talking about that he had some involvement, that’s when I

took him upstairs.” R. 10-10, PageID 937.

Both Mitchell and Collins agree that once upstairs, Collins gave Mitchell a sheet

explaining Mitchell’s Miranda rights. The “Constitutional Rights Certificate of Notification”

stated:

1. I have a right to remain silent and that I do not have to answer any questions

put to me or make any statements.

No. 17-2444 Mitchell v. MacLaren Page 4

2. Any statement I make or anything I say will be used against me in a Court of

Law.

3. I have the right to have an attorney (lawyer) present before and during the

time I answer any questions or make any statement.

4. If I cannot afford an attorney (lawyer), one will be appointed for me without

cost by the Court prior to any questioning.

5. I can decide at any time to exercise my rights and not answer any questions or

make any statement.

R. 1-2, PageID 163. Then the following exchange occurred:

INVESTIGATOR [Collins]: Okay, Vaughn, I’m going to give you your

Constitutional Rights . . . . I need you to read the first Right out loud.

MR. MITCHELL: I understand the [sic] I have the right to remain silent and that I

do not have to answer any questions put to me or make any statements.

INVESTIGATOR: You can read the rest to yourself. Do you understand that?

MR. MITCHELL: I ought to just read #1 again.

(10 min. pause—Mr. Mitchell reading his rights)

INVESTIGATOR: Do you understand—did you finish?

MR. MITCHELL: Uh, I do have a question. Number 4, that’s not speaking

currently—right now?

INVESTIGATOR: Well the question speaks for itself. If I cannot afford an

attorney—you probably can—one will be appointed to me without cost by the

court. That means down the line.

MR. MITCHELL: Meaning when the court . . . .

INVESTIGATOR: Right-right-right. Did you get to the next one?

MR. MITCHELL: Yeah, I read five.

INVESTIGATOR: Okay, now read that part right there.

....

MR. MITCHELL: I understand that these are my rights under the law, I have not

been threatened or promised anything. I desire or [sic] to answer any questions

put to me at this time.

INVESTIGATOR: Do you understand?

MR. MITCHELL: Yeah, I understand.

INVESTIGATOR: Okay, I want you to put your initials by 1, 2, 3, 4, 5 right

there.

No. 17-2444 Mitchell v. MacLaren Page 5

MR. MITCHELL: You say by 1, 2, 3, 4 and 5?

INVESTIGATOR: Yeah, put your initials—that means you understand your

rights as far as I’m concerned. It’s just a formality.

Id. at PageID 129–30.

Another interrogation then commenced, during which Mitchell admitted to having been

at the scene of the murder, having beaten Jorden, and having taken money and drugs from the

victim. Mitchell denied shooting Jorden or taking his vehicle. Instead, Mitchell said that Brown

shot Jorden.

Defense counsel filed a pre-trial motion to suppress Mitchell’s post-warning statements.

The trial court denied the motion. Following a jury trial in Wayne County Circuit Court,

Mitchell was convicted of two counts of first-degree murder (felony murder and first-degree

premeditated murder), in violation of Michigan Compiled Laws § 750.316(1)(a)–(b); carjacking,

in violation of Michigan Compiled Laws § 750.529a; and felony firearm possession, in violation

of Michigan Compiled Laws § 750.227b.

II. PROCEDURAL POSTURE

Mitchell filed an appeal in the Michigan Court of Appeals, raising several claims. That

court denied relief on some of Mitchell’s claims and declined to address other claims but

remanded for an evidentiary hearing to determine, among other things, whether Collins failed to

reasonably convey to Mitchell his right to have an attorney present both before and during

questioning, and whether Collins failed effectively to advise Mitchell of his rights because he

gave a “mid-stream” Miranda warning. People v. Mitchell, No. 293284, 2011 WL 5064301

(Mich. Ct. App. Oct. 25, 2011) (per curiam). The State appealed to the Michigan Supreme

Court, which reversed the Michigan Court of Appeals’ grant of remand and found there was no

Miranda violation. People v. Mitchell, 822 N.W.2d 224 (Mich. 2012) (Mem.). The entirety of

the Michigan Supreme Court’s analysis of Mitchell’s Miranda arguments was as follows:

The trial court did not err in denying defendant’s motion to suppress his

confession. “[U]nlike in [Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159

L.Ed.2d 643 (2004)], there is no concern here that police gave [defendant]

Miranda warnings and then led him to repeat an earlier murder confession,

No. 17-2444 Mitchell v. MacLaren Page 6

because there was no earlier confession to repeat.” In addition, “Miranda does

not require that attorneys be producible on call, but only that the suspect be

informed, as here, that he has the right to an attorney before and during

questioning, and that an attorney would be appointed for him if he could not

afford one.”

Mitchell, 822 N.W.2d at 224 (alterations in original) (first quoting Bobby v. Dixon, 565 U.S. 23,

31 (2011), then quoting Duckworth v. Eagan, 492 U.S. 195, 198 (1989)). The Michigan

Supreme Court also remanded the case to the Court of Appeals to consider the claims that court

had declined to address; the Court of Appeals did so and denied Mitchell relief on all issues

except one that is not relevant here. People v. Mitchell, No. 293284, 2013 WL 951192 (Mich.

Ct. App. Feb. 26, 2013) (per curiam).

After exhausting his state-court remedies, Mitchell filed a § 2254 petition in federal

district court. The district court denied the petition on October 25, 2017, but granted a

Certificate of Appealability (“COA”) on Mitchell’s claims regarding the admissibility of his

custodial statements.

III. STANDARD OF REVIEW

Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). Under AEDPA, if a state court has adjudicated the petitioner’s claims on the

merits, a writ of habeas corpus may not be granted unless the state court’s adjudication of the

claim:

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

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

Court of the United States; or

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

facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

We review a district court’s denial of a habeas petition de novo. See Cleveland v.

Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012). The district court’s findings of fact are reviewed

for clear error, and its legal conclusions on mixed questions of law and fact are reviewed de

novo. See Gumm v. Mitchell, 775 F.3d 345, 359–60 (6th Cir. 2014). “[T]he habeas petitioner

No. 17-2444 Mitchell v. MacLaren Page 7

has the burden of rebutting, by clear and convincing evidence, the presumption that the state

court’s factual findings were correct.” Henley v. Bell, 487 F.3d 379, 384 (6th Cir. 2007) (citing

28 U.S.C. § 2254(e)(1)) (other citations omitted).

Mitchell does not suggest that the decision of the Michigan Supreme Court was “contrary

to” clearly established federal law. Instead, he contends that it unreasonably applied clearly

established federal law. A decision of the state court is an “unreasonable application” when “the

state court identifies the correct governing legal rule from [the Supreme] Court’s cases but

unreasonably applies it to the facts of the particular state prisoner’s case,” or “if the state court

either unreasonably extends a legal principle from [Supreme Court] precedent to a new context

where it should not apply or unreasonably refuses to extend that principle to a new context where

it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). A federal court may not find a

state adjudication to be “unreasonable” “simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly.” Id. at 411.

IV. DISCUSSION

Mitchell argues that the Michigan Supreme Court unreasonably applied Miranda because

(1) Collins misled Mitchell to believe that he did not have a Fifth Amendment right to have

counsel present during interrogation and Collins misstated the availability of a defense attorney

in Detroit; and (2) Mitchell received the Miranda warnings “mid-stream,” in violation of

Supreme Court case law.

A. Collins’s Statements

1. Misleading Statements: Presence of Counsel

Mitchell takes issue with the Michigan Supreme Court’s reliance on Duckworth, in which

the warnings given to the defendant included the sentence: “We have no way of giving you a

lawyer, but one will be appointed for you, if you wish, if and when you go to court.” 492 U.S. at

198 (emphasis added). The Michigan Supreme Court noted that the Duckworth Court upheld

that warning. The Duckworth Court determined that “Miranda does not require that attorneys be

No. 17-2444 Mitchell v. MacLaren Page 8

producible on call, but only that the suspect be informed, as here, that he has the right to an

attorney before and during questioning, and that an attorney would be appointed for him if he

could not afford one.” Id. at 204. Finding that the warnings given to Mitchell satisfied this

standard, the Michigan Supreme Court found no issue with the Miranda warnings he received.

Mitchell attempts to distinguish Duckworth. He argues that the Michigan Supreme Court

failed to consider why the Duckworth Court upheld the warnings: according to Mitchell, it was

because the Court determined that the eight sentences of warnings that included the “if and

when” sentence at issue clearly conveyed enough information to satisfy Miranda. Id. at 205.

Here, by contrast, Mitchell argues that Collins’s response regarding appointment of counsel

“down the line” deliberately “suggested [a] limitation on the right to the presence of appointed

counsel different from the clearly conveyed rights to a lawyer in general.” Appellant Br. at 24

(quoting California v. Prysock, 453 U.S. 355, 360–61 (1981)).

But Mitchell does not take issue with the written warnings he received, and, as in

Duckworth, these initial warnings were valid. In Duckworth, as here, the valid warnings were

accompanied by further explanation from the interrogator about when the defendant could obtain

counsel. The further explanation in Duckworth (“if and when you go to court”) was in written

form, whereas here, it was follow-up in the form of Collins’s oral statement (“down the line”).

Mitchell points to no clearly established law from the Supreme Court making such a distinction

relevant or dictating a conclusion that is different from the one in Duckworth.

Under Duckworth, therefore, the Michigan Supreme Court reasonably determined that

nothing in Collins’s response tempered or negated the previously given warnings regarding

Mitchell’s right to counsel before and during interrogation, his right to refuse to answer or stop

answering questions, or his right to appointment of counsel. Collins indicated when counsel

would be appointed, but he did not imply that the right to an attorney was tied to a future event.

See Duckworth, 492 U.S. at 204–05. True, when this exchange is considered in the totality of the

circumstances, some courts might conclude (as the Michigan Court of Appeals did) that Collins’s

statement created sufficient ambiguity to raise a question about the adequacy of the warnings.

But other jurists could reasonably conclude (as the Michigan Supreme Court did) that pursuant to

the Supreme Court’s case law, the warnings Mitchell received were adequate under Duckworth’s

No. 17-2444 Mitchell v. MacLaren Page 9

statement that Miranda requires “only that the suspect be informed . . . that he has the right to an

attorney before and during questioning, and that an attorney would be appointed for him if he

could not afford one.” Id. at 204.

Under AEDPA’s deferential standard of review, this reviewing court may not grant relief

simply because it might have come to a different conclusion; rather, the state court’s application

of law must have been unreasonable. See Taylor, 529 U.S. at 386 (“Congress intended federal

judges to attend with the utmost care to state-court decisions, including all of the reasons

supporting their decisions, before concluding that those proceedings were infected by

constitutional error . . . .”). Because the Michigan Supreme Court’s holding was not an

unreasonable application of Supreme Court precedent, we deny relief on this portion of

Mitchell’s habeas petition.

2. Misleading Statements: Availability of Counsel

Mitchell also contends that the Duckworth Court acknowledged that the “if and when you

go to court” language “accurately described the procedure for the appointment of counsel in

Indiana,” 492 U.S. at 204,2 and so it was relevant to the Duckworth Court that the detective did

not lie or commit an act of deceit. See id. (“We think it must be relatively commonplace for a

suspect, after receiving Miranda warnings, to ask when he will obtain counsel. The ‘if and when

you go to court’ advice simply anticipates that question.” (footnote omitted)). In further support

of his argument that the veracity of the information given by the officer is relevant to the

analysis, Mitchell cites Prysock. There, the Supreme Court found Miranda warnings to be

sufficient when, after the interrogating officer administered them, the juvenile defendant’s

mother asked the officer a question about the availability of an attorney post-questioning, and the

officer correctly responded that the defendant had a right to an attorney now and “when he went

to court.” 453 U.S. at 357; see id. at 360–61. Mitchell argues that the officer’s response in

2

We note that the parties contest whether Collins’s statement about the availability of an attorney

accurately describes the law. Mitchell argues that in the county where he was interrogated, there is a defense

attorney on call twenty-four hours per day who is available to attend line-ups and interrogations. However, in the

state of Michigan, courts appoint counsel at the arraignment stage. Mich. Comp. Laws § 775.16. Regardless, we

assume for the purposes of our analysis that Collins did not accurately describe the availability of an attorney in the

jurisdiction where Mitchell was interrogated.

No. 17-2444 Mitchell v. MacLaren Page 10

Prysock clarified matters, whereas Collins’s response to Mitchell was incorrect and deceptive

because it was made to “deliberately confuse[]” Mitchell about the appointment procedure in the

county where he was interrogated. Appellant Br. at 23. Thus, according to Mitchell, the

Michigan Supreme Court “failed to account for the impact that [Collins’s] response . . . had on

the sufficiency of the warnings.” Id.

We disagree. Jackson v. Frank, 348 F.3d 658 (7th Cir. 2003), is instructive. In that case,

the Seventh Circuit held that an officer’s giving an inaccurate description of state law while

delivering Miranda warnings is not, on its own, a basis for relief in a § 2254 petition. See

Jackson, 348 F.3d at 665. In Jackson, the defendant was arrested and advised of his Miranda

rights. Id. at 660. The defendant then asked if the detective could arrange for an attorney. Id.

The detective stated that he could not, and that he was going to end the interview. Id. The

defendant then stated that he wanted to talk, but “asked . . . if he could have a lawyer right now.”

Id. The detective understood this to mean the defendant’s “intent . . . was to have a lawyer

present there, then and there, right now, and if I could arrange for that.” Id. The detective said

no. Id.

The Seventh Circuit acknowledged that the detective’s response about the availability of

a public defender did not accurately describe state law in Wisconsin, where the interview took

place. Id. at 661. The defendant ultimately confessed to the crime and later filed a motion to

suppress the confession, which the state court denied. Id. The defendant then filed a § 2254

petition and appealed its denial to the Seventh Circuit. Id. The crux of the defendant’s claim

was that “1) the detective misstated the availability of a public defender under Wisconsin law,

and 2) the detective’s statement may have misled [the defendant] to believe that he did not have

a right under the Fifth Amendment to have counsel present during interrogation.” Id. at 663. In

support of the second argument, the defendant argued (as does Mitchell) that the detective’s

statement was particularly misleading because, unlike in Duckworth, “in this case the police

could have provided counsel.” Id. at 664.

The Seventh Circuit responded to each argument in turn. As to the first argument, the

court held:

No. 17-2444 Mitchell v. MacLaren Page 11

Although the detective may have failed to follow state law by not allowing [the

defendant] to contact the public defender’s office and mischaracterized the

provisions of the law, review of a habeas petition by a federal court is limited to

consideration of violations of federal law or the United States Constitution.

Neither Miranda nor any other provision of federal law requires a public defender

to be immediately available to a suspect during interrogation. Thus, to the extent

[the defendant’s] petition alleges violations of protections guaranteed under state

law that are more generous than those required under federal law, we may not

enforce these state law provisions through habeas relief.

Id. at 663 (internal citations omitted). As to the second argument, the court continued:

While the Court in Duckworth certainly noted the accuracy of the officer’s

statement under state law, it is far from clear that the Court’s conclusion rested

on that fact. The Court did not explain, for example, how, if this were so,

differences in the provision of public defenders under state law should affect a

petitioner’s understanding and exercise of his federal constitutional rights.

Id. at 664 (emphasis added). Thus, the Seventh Circuit held that “[g]iven the similarities

between this case and the Supreme Court’s decision in Duckworth, and the lack of clarity

regarding the effect of an officer’s misstatement on the voluntariness of a Miranda waiver,” the

defendant could not demonstrate a violation of clearly established federal law, necessary to

prevail under § 2254(d)(1). Id. at 665. We find the Seventh Circuit’s reasoning persuasive and

adopt it here.

It is true that in Jackson, the Seventh Circuit did not cite Prysock, but Prysock does not

dictate a different conclusion. Duckworth was decided after Prysock. Although the Supreme

Court indicated in Prysock that a Miranda warning may not be sufficient “if the reference

to . . . appointed counsel was linked [to a] future point in time after the police interrogation,”

Prysock, 453 U.S. at 360 (emphasis added), the Duckworth Court clarified that “the vice referred

to in Prysock was that such warnings would not apprise the accused of his right to have an

attorney present if he chose to answer questions,” Duckworth, 492 U.S. at 205. Here, as in

Duckworth, “[t]he warnings . . . did not suffer from that defect,” id., because the five sentences in

the initial warning explained that Mitchell had a right to counsel before and during questioning,

and another sentence detailed the right to stop answering questions. And Mitchell does not

dispute that the written warnings conveyed this information. In sum, the Michigan Supreme

No. 17-2444 Mitchell v. MacLaren Page 12

Court did not unreasonably apply Duckworth when it found the Miranda warnings that Mitchell

received to be constitutionally adequate.

Resisting this conclusion, Mitchell points to United States v. Tillman, 963 F.2d 137 (6th

Cir. 1992), in which we found the warnings issued to be constitutionally deficient. But the

Tillman warnings were plainly deficient: they did not inform the defendant, at any point, that any

statements he made could be used against him. See id. at 140. As the Tillman court noted, “[o]f

all of the elements provided for in Miranda, this element [that any statements made can be used

against a defendant] is perhaps the most critical because it lies at the heart of the need to protect

a citizen’s Fifth Amendment rights.” Id. at 141. It is likely that we could have remanded on this

point alone in Tillman. Accordingly, Tillman is not persuasive on the issues in this case.

Finally, Lathers v. United States, 396 F.2d 524 (5th Cir. 1968), abrogation recognized by

United States v. Contreras, 667 F.2d 976 (11th Cir. 1982), is also inapposite. There, the Fifth

Circuit held that the Miranda warnings were deficient because the defendant “was not advised

that he could have an attorney appointed and present . . . before he uttered a syllable.” Id. at 535.

Here, the written warnings given to Mitchell fully advised him of his right to have an attorney

present prior to, and during, questioning. See Contreras, 667 F.2d at 979 (“Prysock . . . stands

for the proposition that a Miranda warning is adequate if it fully informs the accused of his right

to consult with an attorney prior to questioning and does not condition the right to appointed

counsel on some future event. A Miranda warning need not explicitly convey to the accused his

right to appointed counsel ‘here and now,’ and to the extent that Lathers and other precedents of

this court require such explicit warnings, they are overruled.” (footnote omitted)).

B. Mid-Stream Miranda Warnings and Waiver

In his second claim for relief, Mitchell argues that his post-warning admissions should

have been excluded under Seibert, because Collins interrogated him on three different occasions

and only advised Mitchell of his Miranda rights “mid-stream.” See Seibert, 542 U.S. at 604

(plurality opinion). As an initial matter, we note that Mitchell appears to challenge not only the

Michigan Supreme Court’s application of the law to the facts of his case but also that court’s

determination of the facts. See 28 U.S.C. § 2254(d)(2). However, the Michigan Supreme Court

No. 17-2444 Mitchell v. MacLaren Page 13

does not appear to have adopted either Mitchell’s version of the facts or Collins’s version (as

discussed above, Collins claimed that he questioned Mitchell only once before giving Miranda

warnings). Instead, the Michigan Supreme Court reversed the Court of Appeals’s decision to

remand for an evidentiary hearing on the facts surrounding Mitchell’s interrogations. The

Michigan Supreme Court then stated that no violation of Mitchell’s rights had occurred, see

Mitchell, 822 N.W.2d at 224, indicating either that it had implicitly accepted one view of the

facts and found no violation or that it found no violation had occurred on either version of the

facts.

Although it is not clear that a factual determination exists for the purposes of AEDPA

review, that gap in the record presents no hindrance to our review of Mitchell’s claim. Even

assuming Mitchell’s version of the interrogation sequence is the accurate one, his claim fails

because the Michigan Supreme Court’s decision was not an unreasonable application of the

Supreme Court’s case law even on Mitchell’s version of the facts.

To understand the applicable Supreme Court case law, we must first consider Oregon v.

Elstad, 470 U.S. 298 (1985). In Elstad, the police went to the suspect’s house to take him into

custody on a charge of burglary. Id. at 300. Before the arrest, one officer spoke with the

suspect’s mother while the other officer joined the suspect in the living room, id. at 300–01,

where the officer said he “felt” the suspect was involved in a burglary, id. at 301. The suspect

said, “Yes, I was there.” Id.3 Later, at the station house, the suspect was given Miranda

warnings, and he made a full confession. Id. at 301–02.

The Elstad Court reasoned that “a simple failure to administer the [Miranda] warnings,

unaccompanied by any actual coercion or other circumstances calculated to undermine the

suspect’s ability to exercise his free will,” does not automatically “taint[] the investigatory

process.” Id. at 309. “[T]here is no warrant for presuming coercive effect where the suspect’s

initial inculpatory statement, though technically in violation of Miranda, was voluntary. The

relevant inquiry is whether, in fact, the second [i.e., the Mirandized] statement was also

voluntarily made.” Id. at 318 (footnote omitted). “[A] suspect who has once responded to

3The state conceded for the purposes of the appeal that the suspect was in custody at the time of this

exchange. See Elstad, 470 U.S. at 315.

No. 17-2444 Mitchell v. MacLaren Page 14

unwarned [i.e., un-Mirandized] yet uncoercive questioning is not thereby disabled from waiving

his rights and confessing after he has been given the requisite Miranda warnings.” Id.

After Elstad came Seibert, upon which Mitchell relies. There, police questioning led to

the defendant’s confession to a crime, after which she was given a 20-minute break. Seibert,

542 U.S. at 604–05 (plurality opinion). Following the break, the officer turned on the tape

recorder and only then gave the defendant her Miranda warnings. Id. at 605. When the

defendant resisted making a statement, the officer reminded her that she had already admitted

involvement in the crime; the defendant then confessed post-warning. Id. In a fractured

decision, the Supreme Court held that the post-warning confession was inadmissible.

A four-justice plurality distinguished Elstad based on the following factors: “[1] the

completeness and detail of the questions and answers in the first round of interrogation, [2] the

overlapping content of the two statements, [3] the timing and setting of the first and the second,

[4] the continuity of police personnel, and [5] the degree to which the interrogator’s questions

treated the second round as continuous with the first.” Id. at 615. On the facts of Seibert, the

plurality determined, these factors dictated reversal “[b]ecause the question-first tactic

effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession

would be admitted, and because the facts here do not reasonably support a conclusion that the

warnings given could have served their purpose.” Id. at 617.

Justice Kennedy provided the fifth vote for reversal, writing separately to propose an

alternative analysis:

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. Curative measures should be designed to ensure that a reasonable person

in the suspect’s situation would understand the import and effect of the Miranda

warning and of the Miranda waiver. For example, a substantial break in time and

circumstances between the prewarning statement and the Miranda warning may

suffice in most circumstances, as it allows the accused to distinguish the two

contexts and appreciate that the interrogation has taken a new turn. Alternatively,

No. 17-2444 Mitchell v. MacLaren Page 15

an additional warning that explains the likely inadmissibility of the prewarning

custodial statement may be sufficient.

Id. at 622 (Kennedy, J., concurring) (emphases added). Four justices dissented, arguing that the

post-warning confession was admissible. See id.

Thus, based on Seibert, there are two competing tests regarding how to evaluate the

constitutionality of interrogations employing mid-stream Miranda warnings. As we noted in

United States v. Ray, 803 F.3d 244, 272 (6th Cir. 2015), “[b]ecause . . . the plurality and dissent

[in Seibert] each received only four votes, . . . Seibert did not [itself] announce a binding rule of

law.” Therefore, reasonable jurists could read Seibert as having established only that on the facts

of that case, the post-warning confession was inadmissible. See Dixon, 565 U.S. at 30–32 (citing

both the plurality opinion and Justice Kennedy’s opinion but not exclusively adopting the

approach of either).

As mentioned above, the Michigan Supreme Court found no constitutional violation

because Mitchell’s pre-warning statement had denied involvement in the killing; thus, “[u]nlike

in [Seibert], there is no concern here that police gave [defendant] Miranda warnings and then led

him to repeat an earlier murder confession, because there was no earlier confession to repeat.”

Mitchell, 822 N.W.2d at 224 (third alteration in original) (quoting Dixon, 565 U.S. at 31).

Mitchell argues that the Michigan Supreme Court took this quote from Dixon—a Supreme Court

opinion discussing both Elstad and Seibert—out of context. Indeed, Mitchell relies heavily on

Dixon to argue that (1) Dixon made clear that the absence of a pre-warning confession is not the

end of the analysis and (2) the application of either the plurality’s or the Kennedy concurrence’s

approach from Seibert, which led to the Dixon Court’s finding a confession admissible, would

produce the opposite result in Mitchell’s case because his facts are much more like Seibert. An

examination of Dixon, however, reveals that the Michigan Supreme Court was not unreasonable

in determining that Mitchell’s case was comparable in pertinent respects to Dixon.

In Dixon, both Dixon and another man murdered the victim. 565 U.S. at 24–25. Dixon

then used the victim’s social security card and birth certificate to obtain a state identification card

in the victim’s name so Dixon could sell the victim’s car. Id. at 25. Police arrested Dixon on a

forgery charge and then questioned him intermittently over several hours but intentionally

No. 17-2444 Mitchell v. MacLaren Page 16

declined to provide Dixon with Miranda warnings. Id. Dixon admitted to forging the victim’s

signature, but he denied having any involvement in the victim’s disappearance. Id. After

Dixon’s accomplice spoke to police officers and led them to where the two had buried the body,

officers again brought Dixon to the station, about four hours after the initial intermittent

questioning had concluded. Id. at 26. “Dixon stated that he had heard the police had found a

body and asked whether [his accomplice] was in custody. The police told Dixon that [the

accomplice] was not, at which point Dixon said, ‘I talked to my attorney, and I want to tell you

what happened.’” Id. After the officers advised him of his Miranda rights, Dixon admitted to

murdering the victim. Id.

Ultimately, Dixon’s case reached the Supreme Court in the form of an appeal from the

denial of his § 2254 petition. The Court, citing both Elstad and Seibert, held:

In this case, no two-step interrogation technique of the type that concerned the

Court in Seibert undermined the Miranda warnings Dixon received. In Seibert,

the suspect’s first, unwarned interrogation left “little, if anything, of incriminating

potential left unsaid,” making it “unnatural” not to “repeat at the second stage

what had been said before.”

Id. at 31 (quoting Seibert, 542 U.S. at 616–17 (plurality opinion)). Accordingly, the Court

continued:

[A]dmission of Dixon’s murder confession was consistent with this Court’s

precedents: Dixon received Miranda warnings before confessing to [the] murder;

the effectiveness of those warnings was not impaired by the sort of “two-step

interrogation technique” condemned in Seibert; and there is no evidence that any

of Dixon’s statements was the product of actual coercion.

Id. at 32.

Assuming Mitchell’s version of the facts leading to his post-warning admissions is

correct, reasonable jurists could find his case to be more like Dixon and Elstad than Seibert. As

in Dixon and Elstad, here, there was no confession during the interrogations that occurred prior

to the Miranda warnings. Instead, Mitchell received Miranda warnings before admitting to

beating Jorden and taking money and drugs from him. Also, although Collins referenced

Mitchell’s pre-warning statements during the post-warning interrogation, there is no evidence

No. 17-2444 Mitchell v. MacLaren Page 17

that Collins used Mitchell’s earlier, un-Mirandized statements to coerce a post-warning

confession or that Collins otherwise induced Mitchell to waive his rights.

It is true that Mitchell was given only a few minutes between his pre- and post-warning

interrogations (unlike Dixon, who had four hours) and that Collins himself conducted both

interrogations. See Seibert, 542 U.S. at 615 (plurality opinion) (One factor to consider in

determining the effectiveness of mid-stream warnings is “the continuity of police personnel.”).

Also, during the unwarned interrogation, Mitchell told Collins about a prior incident with Jorden

concerning the gun and admitted to being at the location of Jorden’s shooting on the evening of

the murder. However, in Dixon, the Supreme Court reaffirmed the holding in Elstad that “there

is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement,

though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in

fact, the second [warned] statement was also voluntarily made.” Dixon, 565 U.S. at 29

(alteration in original) (quoting Elstad, 470 U.S. at 318); see id. at 30 n.3, 32. Similarly, here,

Mitchell does not contend that any pre-warning statements he made, though technically in

violation of Miranda, were involuntary. And none of those statements included a confession to

the killing or to any crime, unlike in Seibert. To the extent that what Mitchell did say in his

unwarned statements could be considered incriminating, indeed, Dixon indicates that

incriminating statements falling short of a confession do not necessarily taint a post-warning

confession. In Dixon, after all, the defendant readily admitted forgery during the unwarned

interrogation, thus establishing a connection between himself and the victim. See Dixon, 565

U.S. at 29. Similarly, here, although Mitchell admitted being near the scene before Jorden’s

murder, he did not admit any wrongdoing during the unwarned interrogation.

Our task in applying AEDPA is not to consider in the first instance whether we would

reach the same result as the state court but to determine whether the state court’s application of

clearly established federal law was unreasonable. See Taylor, 529 U.S. at 411. Here, where the

Supreme Court has held in Dixon and Elstad that mid-stream warnings do not necessarily make a

post-warning confession inadmissible, and Seibert did not establish a clear rule for determining

when such confessions are inadmissible, the Michigan Supreme Court’s determination that

No. 17-2444 Mitchell v. MacLaren Page 18

Mitchell’s post-warning admissions had not been elicited in violation of Miranda was

reasonable.4

V. CONCLUSION

For the reasons stated above, we AFFIRM the district court’s denial of Mitchell’s § 2254

petition.

4Mitchell also argues that the cumulative effect of the mid-stream Miranda warnings and Detective

Collins’s allegedly misleading statements resulted in Mitchell’s being inadequately informed of his rights.

However, because the COA did not include this “cumulative effects” issue, we are not required to entertain it. See

Dunham v. United States, 486 F.3d 931, 934 (6th Cir. 2007). Mitchell’s reliance on Gonzalez v. Thaler, 565 U.S.

134 (2012) to argue that there is no bar to reaching this argument is unavailing. Unlike in Gonzalez, where the COA

was defective because it failed to comply with 28 U.S.C. § 2252(c)(3), see 565 U.S. at 141, the district court here

issued a compliant COA. It precisely identified the two issues certified for appeal and rejected the others. In these

circumstances, we address only the issues certified for appeal. See Dunham, 486 F.3d at 934. Moreover, we decline

to exercise our “inherent authority to expand sua sponte the scope of the COA to encompass additional issues.” See

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