# Robert Cobb v. E.P. Perini

> Court of Appeals for the Sixth Circuit · November 6, 1987 · 832 F.2d 342

URL: https://www.frixlaw.com/law-library/cases/9476872

## Case

- **Full name:** Robert COBB, Petitioner-Appellant, v. E.P. PERINI, Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** November 6, 1987
- **Citations:** 832 F.2d 342; 1987 U.S. App. LEXIS 14853
- **Precedential status:** Published
- **Opinion:** Concurrence by Wellford
- **Judges:** Martin, Wellford, Nelson
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9476872

## How later opinions describe it (automated extraction)

- stating that it was not clear whether the prosecutor's conduct was improper, and that Cobb had offered no basis on appeal for why the testimony should have been excluded
- rejecting claim that counsel’s failure to object comprised ineffectiveness in part because it was unclear whether challenged evidence was improper
- rejecting an ineffective assistance of counsel claim based on counsel’s failure to object where it was unclear whether the challenged evidence was improper
- noting the presumption that a failure to object “might be considered sound trial strategy”

## Opinion text

WELLFORD, Circuit Judge,
concurring.
I concur in the result reached but have some difficulty with part III of the opinion because I cannot discern, from the district judge’s order herein, that he considered all the implications of Miranda in respect to Cobb’s custodial situation at the time of questioning in the totality of the circumstances. I believe the preferable course would be to remand to the district court for more definitive findings in this context. As to part III of the opinion, then, I would prefer to remand to the district court for its reasoned consideration whether or not warnings were necessary before the police asked Cobb any questions in the East Cleveland police headquarters.
The district court relied principally upon a “stop” case, United States v. Hensley, 469 U.S. 221 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985), in its summary conclusion that Cobb was “not in custody” when he made the statements implicating himself. Hensley made no reference whatever to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) nor to later cases construing that landmark decision. The district court made a “see also” reference to Berkemer v. McCarty, 468 U.S. 420 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). That Supreme Court case deals both with the Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) “stop” situation and with the Miranda issue with regard to police questioning of a traffic offender both inside the jail and at the scene of the traffic offense. The district court, however, made no analysis of the facts as he found them in this case in relation to the facts and the court’s discussion in Berkemer , which was considering an appeal from a divided panel of this court. See McCarty v. Herdman, 716 F.2d 361 (6th Cir.1983). Despite my preference for a remand, I am disposed to agree that in any event a harmless error analysis would require us to affirm the district court and deny the petition for habeas corpus. I therefore concur in the result reached.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476872. Public record. Not legal advice.