Opposition Brief — Robin Root, Petitioner v. Jeremy Howard, Warden

No. 24-1122

In the Supreme Court of the United States

ROBIN ROOT, PETITIONER

v.

JEREMY HOWARD, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES C OURT OF A PPEALS

FOR THE SIXTH C IRCUIT

BRIEF IN OPPOSITION

Dana Nessel

Michigan Attorney General

Ann M. Sherman

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

Jared Schultz

Assistant Attorney General

Criminal Appellate and Parole

Appeals Division

Michigan Department of

Attorney General

Attorneys for Respondent

i

QUESTIONS PRESENTED

1. Should this Court review a purported circuit

split when the result—regardless of whether the majority or minority rule is adopted—would not affect either the outcome of the petitioner’s case or the underlying analysis of her specific claim, and when the

question as presented here was not fully exhausted in

the state courts and was not raised below?

2. Should this Court review an entirely factbased, error-correction argument involving the voluntariness of the petitioner’s confession when that claim

was not fully exhausted in the state courts and was

not raised below?

3. Should this Court consider an exception to the

rule prohibiting collateral review of Fourth Amendment claims, when that exception would necessarily

violate this Court’s retroactivity doctrine, and when

the argument was not raised below?

ii

PARTIES TO THE PROCEEDING

Petitioner Robin Root is a prisoner being held in

custody by the Michigan Department of Corrections at

the Women’s Huron Valley Correctional Facility. Respondent Jeremy Howard is the warden of that facility.

RELATED CASES

•

People v. Root, Michigan Court of Appeals, Docket

No. 331123, Opinion issued August 31, 2017 (vacating and remanding for a new trial).

•

People v. Root, Michigan Supreme Court, Docket

No. 156658, Order issued May 11, 2018 (denying

the State’s application for leave to appeal).

•

People v. Root, Michigan Court of Appeals, Docket

No. 346164, Opinion issued April 9, 2020 (affirming conviction and sentence).

•

People v. Root, Michigan Supreme Court, Docket

No. 161304, Order issued September 8, 2020

(denying Root’s application for leave to appeal).

•

Root v. Howard, United States District Court for

the Eastern District of Michigan, Opinion and Order issued July 9, 2024 (denying petition for writ

of habeas corpus and denying certificate of appealability).

•

Root v. Howard, United States Court of Appeals for

the Sixth Circuit, Order issued February 10, 2025

(denying Root’s application for a certificate of appealability).

iii

TABLE OF CONTENTS

Questions Presented .......................................................... i

Parties to the Proceeding ................................................. ii

Related Cases ..................................................................... ii

Table of Contents ..............................................................iii

Table of Authorities........................................................... v

Opinions Below................................................................... 1

Jurisdiction ......................................................................... 1

Constitutional and Statutory Provisions Involved .... 2

Introduction ........................................................................ 3

Statement of the Case....................................................... 5

Reasons for Denying the Petition ................................ 12

I.

This case presents a poor vehicle to review

the alleged Seibert circuit split.............................. 12

A. Resolving the Seibert question would not

alter the reasoning or the result here. ......... 12

B. Section 2254’s limitations render the

Seibert question irrelevant to this case........ 15

C. The Seibert question has not been

properly exhausted. .......................................... 17

D. The Seibert question has not been

litigated in the lower courts............................ 19

II. The voluntariness question does not present

an important question for review. ........................ 21

III. The proposed Stone exception is precluded by

this Court’s precedents and, regardless,

cannot form the basis for relief in this case. ...... 23

iv

A. The Stone exception is precluded by this

Court’s retroactivity principles. ..................... 24

B. This case presents a poor vehicle to

review the proposed Stone exception. ........... 27

Conclusion ......................................................................... 30

v

TABLE OF AUTHORITIES

Cases

Allen v. Hardy,

478 U.S. 255 (1986) .................................................. 20

Byrd v. United States,

138 S. Ct. 1518 (2018)....................................... 20, 28

Cardwell v. Taylor,

461 U.S. 571 (1983) .................................................. 22

Carpenter v. United States,

585 U.S. 296 (2018) ............................5, 9, 19, 26, 28

Cutter v. Wilkinson,

544 U.S. 709 (2005) ........................................... 20, 28

Edwards v. Vannoy,

593 U.S. 255 (2021) ........................................... 25, 26

Freeman v. United States,

564 U.S. 522 (2011) .................................................. 16

Greene v. Fisher,

565 U.S. 34 (2011) .................................................... 29

Harrington v. Richter,

562 U.S. 86 (2011) ............................................... 3, 23

Hughes v. United States,

584 U.S. 675 (2018) .................................................. 16

Mackey v. United States,

401 U.S. 667 (1971) .................................................. 27

Marks v. United States,

430 U.S. 188 (1977) .................................................. 16

Miranda v. Arizona,

384 U.S. 436 (1966) ................................................3, 7

vi

Missouri v. Seibert,

542 U.S. 600 (2004) .................................. 3, 8, 13, 14

Oregon v. Elstad,

470 U.S. 298 (1985) .................................................... 8

People v. Root,

910 N.W.2d 664 (Mich. 2018)................................... 9

People v. Root,

947 N.W.2d 818 (Mich. 2020)................................. 10

People v. Root,

No. 331123, 2017 WL 3798495 (Mich. Ct.

App. 2017) ..................................... 7, 8, 14, 17, 18, 21

Schneckloth v. Bustamonte,

412 U.S. 218 (1973) .................................................. 23

Schriro v. Summerlin,

542 U.S. 348 (2004) .................................................. 26

Slack v. McDaniel,

529 U.S. 473 (2000) .................................................. 20

Stone v. Powell,

428 U.S. 465 (1976) ................................ 4, 11, 24, 25

Taylor v. Cardwell,

579 F.2d 1380 (9th Cir. 1978) ................................ 22

Teague v. Lane,

489 U.S. 288 (1989) .................................................. 27

United States v. Hernandez,

751 F.3d 538 (7th Cir. 2014) .................................. 13

United States v. Heron,

564 F.3d 879 (7th Cir. 2009) .................................. 12

United States v. Leon,

468 U.S. 879 (1984) .................................................. 10

vii

United States v. Stewart,

388 F.3d 1079 (7th Cir. 2004) ................................ 13

United States v. Woolridge,

64 F.4th 757 (6th Cir. 2023) ................................... 13

White v. Woodall,

572 U.S. 415 (2014) .................................................. 29

Williams v. Taylor,

529 U.S. 362 (2000) .................................................. 16

Yarborough v. Alvarado,

541 U.S. 652 (2004) .................................................. 29

Statutes

18 U.S.C. § 2703 ................................................................. 9

28 U.S.C. § 2254 .......................................................... 3, 10

28 U.S.C. § 2254(b)(1)(A)................................................ 18

28 U.S.C. § 2254(b)(1)(B)................................................ 18

28 U.S.C. § 2254(c) .......................................................... 18

28 U.S.C. § 2254(d) ..................................................... 2, 22

28 U.S.C. § 2254(d)(1) ........................................15, 16, 29

28 U.S.C. § 2254(d)(2) ..................................................... 16

Mich. Comp. Laws § 750.316(1)(a) ................................. 7

Mich. Comp. Laws § 750.317........................................... 9

Rules

Mich. Ct. R. 6.500 et. seq. ............................................... 18

Mich. Ct. R. 6.508(D)(2).................................................. 18

Sup. Ct. R. 10 ............................................................. 15, 22

viii

Constitutional Provisions

U.S. Const. amend. IV ...................................................... 2

U.S. Const. amend. V ........................................................ 2

1

OPINIONS BELOW

The United States Court of Appeals for the Sixth

Circuit’s order denying Root’s application for a certificate of appealability, App. 1a–5a, is not reported but

is available at 2025 WL 1260801. The district court’s

opinion and order denying Root’s petition for a writ of

habeas corpus, denying a certificate of appealability,

and denying leave to proceed in forma pauperis on appeal, App. 8a–34a, is not reported.

The Michigan Supreme Court’s order denying

Root’s application for leave to appeal is reported at

947 N.W.2d 818. The Michigan Court of Appeals’ opinion affirming Root’s conviction following her second

trial is not reported but available at 2020 WL

1816009.

The Michigan Supreme Court’s order denying the

State’s application for leave to appeal following Root’s

first trial is reported at 910 N.W.2d 664. The Michigan

Court of Appeals’ opinion vacating Root’s conviction

following her first trial and remanding for a new trial

is not reported but available at 2017 WL 3798495.

JURISDICTION

The State agrees that this Court has jurisdiction

to consider the petition.

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States

Constitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or affirmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

The Fifth Amendment to the United States Constitution provides:

No person shall be . . . compelled in any criminal case to be a witness against himself. . . .

And 28 U.S.C. § 2254(d) provides, in relevant

part:

An application for a writ of habeas corpus

on behalf of a person in custody pursuant to

the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United

States. . . .

***

3

INTRODUCTION

Robin Root owed money to her landlord, Janna

Kelly. Instead of paying, Root killed Kelly. Once law

enforcement connected Root to the killing and confronted her with the evidence against her—including

DNA evidence, cell phone location data, and billing

records—she confessed. That confession forms the basis of three independent claims that Root asks this

Court to review. None are worth considering.

To understand why, start with the basics. Root’s

claims arise from a petition filed under 28 U.S.C.

§ 2254. That statute places strict limitations on a federal court’s power to grant habeas relief. If a state

court has adjudicated a claim on the merits, relief is

barred unless the adjudication involved an error “beyond any possibility for fairminded disagreement.”

Harrington v. Richter, 562 U.S. 86, 103 (2011). Nowhere in her petition does Root even cite, let alone discuss, this heightened standard. Yet those limitations

fundamentally alter the foundations on which her

questions presented rest. So even if the underlying

questions were intriguing on their face, they have no

relevance to this case because § 2254 precludes relief.

Now turn to the underlying questions, in which

Root performs a bit of slight of hand. She first sets

forth a circuit split regarding Missouri v. Seibert, 542

U.S. 600 (2004), in which the federal courts of appeals

disagree about which of this Court’s opinions from

that case govern when law enforcement gives the

warnings required by Miranda v. Arizona, 384 U.S.

436 (1966), during the middle of an interrogation. Yet

Root does not contend that the state court in her case

chose the wrong opinion to follow. She instead argues

4

only that it misapplied the correct Seibert opinion.

Any circuit split does not match her claim of error.

Root then suggests that her confession was altogether involuntary. Yet she cites no law, claims no

split of authority, and merely details various facts

that she says the state court should have weighed differently. It is a fact-based, error-correction argument.

And it is without merit in any event.

Last, Root lobbies this Court to implement an exception to Stone v. Powell, 428 U.S. 465 (1976), which

adopted the well-established rule that prohibits

Fourth Amendment litigation on federal habeas review. She suggests that, because the law is slower to

develop than the technology that law enforcement

uses—such as the cell phone location data used here—

a federal habeas court should be allowed to consider

novel applications of the Fourth Amendment. Yet this

proposed exception defies this Court’s retroactivity

law. A novel Fourth Amendment application never applies on collateral review, so the proposed exception

would not alter the practical effects of Stone.

One last thing. Root has not presented these questions in the courts below. Not one of them. She maintained throughout her federal habeas litigation that

Fourth Amendment law already required suppression

of her confession. Any questions about the correct

opinion from Seibert to adopt, the voluntariness of her

confession, and whether to extend Fourth Amendment precedent were not raised or addressed in either

the district court or the Sixth Circuit. And these

claims were not fully exhausted in state court either.

This Court should not be the first to review these

claims. The petition should be denied.

5

STATEMENT OF THE CASE

Janna Kelly disappears and is later found dead.

On December 4, 2007, Janna Kelly went missing.

App. 9a. The next day, police discovered Kelly’s purse,

wallet, and jacket at a local car wash; her car was

found parked in a different location. App. 9a. Her

jacket and car contained blood belonging to a then-unidentified female. App. 9a.

The night she disappeared, Kelly received a call

from Root, who lived in a nearby duplex that Kelly

owned. App. 10a. After she disappeared, Kelly’s

daughter found a note indicating that Kelly was arranging to get money from Root for unpaid rent and

that she had evicted Root. App. 10a. In connection

with Kelly’s disappearance, Grand Rapids Police Department Detective Tim DeVries interviewed Root.

App. 10a. Root admitted that Kelly had come to see

her recently regarding the money she owed, and she

described two phone calls she made to Kelly on the

night she went missing. App. 10a–11a. She voluntarily provided a DNA sample. App. 11a. But that sample

was not tested. App. 11a.

Trying to find Kelly, the police obtained the cellsite location information (CSLI) for Kelly’s phone.

App. 20a. A phone’s CSLI is a time-stamped record

showing each time the phone connects to a cell site.

See Carpenter v. United States, 585 U.S. 296, 301

(2018). The CSLI from Kelly’s phone indicated that it

had connected with a site near her home in Grand

Rapids, Michigan, on the morning she disappeared.

App. 9a, 20a. But shortly after noon that day it connected with a site in West Olive, Michigan. App. 20a.

6

The next spring, Kelly’s burned and decomposing body

was discovered in a secluded area in Grand Haven

Township, a community near West Olive. App. 11a–

12a, 20a. Her mouth and limbs had been bound, and

she was stripped naked. App. 11a–12a.

In September 2009, the police conducted a “tower

dump,” in which they obtained a list of all the phones

that connected, at the relevant times, to the cell site

near Kelly’s home and the cell site near the location

where her body was found. App. 20a–21a. But the police were not able to decipher the information at the

time. App. 21a. The case went cold. App. 21a.

A cold-case investigation leads police to Root.

In 2014, cold-case detectives from the Ottawa

County Sheriff’s Office noticed that Root’s DNA had

never been compared to the DNA from the blood found

on Kelly’s jacket and in her car. App. 12a. After that

comparison was finally conducted, it showed that Root

was the source of the blood. App. 12a. Also, now with

better equipment and expertise, the police interpreted

the data from the tower dump—it showed Root’s

phone in the same area as Kelly’s phone when she disappeared and that the two phones “traveled at the

same time” to the location where Kelly’s body was

later discovered. App. 21a. With this information, the

police obtained Root’s billing records and discovered

that she had called the hotline for famous evangelist

Billy Graham a few days after Kelly disappeared.

App. 22a.

In April 2015, the police interviewed Root again.

App. 21a. She drove herself to the interview and spoke

with detectives from the sheriff’s office for 90 minutes

7

before leaving to pick up her granddaughters from

school. App. 13a. Days later, Root again drove herself

to the sheriff’s office to resume the interview. App.

13a. Nearly three hours into this session, one of the

detectives exited the room and DeVries, who had interviewed Root in 2007, entered and began questioning her. People v. Root, No. 331123, 2017 WL 3798495,

at *5 (Mich. Ct. App. 2017). He confronted her with

CSLI and phone-record evidence. App. 21a–22a. She

eventually confessed that she killed Kelly. App. 22a.

DeVries then informed Root that she was under arrest

and advised her of her rights provided by Miranda v.

Arizona, 384 U.S. 436 (1966). Root, 2017 WL 3798495,

at *9–10. He continued to question Root, asking about

additional details and attempting to obtain different

incriminating statements than he had obtained before

providing Miranda warnings. Id. at *10.

Root is convicted, but a state court reversed.

Root was charged with first-degree premeditated

murder, Mich. Comp. Laws § 750.316(1)(a). Before

trial, she moved to suppress her confession, but the

trial court denied that motion. App. 13a. Following a

jury trial, Root was convicted and sentenced to life in

prison without eligibility for parole. Root, 2017 WL

3798495, at *1.

Root appealed. She contended that her statements

should not have been admitted at trial because she

had not been advised of her rights under Miranda

while subject to custodial interrogation. Id. The Michigan Court of Appeals agreed in part. That court determined that Root was not in custody when her April

2015 interview began but that a few hours into that

interview, when it became clear that she was going to

8

be arrested and charged, the interview turned custodial and Miranda warnings were required. Id. at *3–

8. The confession and statements that she gave after

that point, but before the detectives finally provided

Miranda warnings, were inadmissible and should

have been suppressed, the state appellate court ruled.

Id. at *8.

The Michigan Court of Appeals went on to discuss

the statements that Root made after the Miranda

warnings. Id. at *8–10. It cited Oregon v. Elstad, 470

U.S. 298 (1985), which held that mid-stream Miranda

warnings do not require suppressing the post-Miranda statements unless those statements were given

involuntarily, and the plurality opinion from Missouri

v. Seibert, 542 U.S. 600 (2004), which provided that

post-Miranda statements may be inadmissible at trial

if the warnings did not function effectively. Root, 2017

WL 3798495, at *8–9. Because the mid-stream Miranda warnings in this case were “more akin to the

inadvertent mistake in Elstad, and w[ere] not part of

an interrogation technique designed to evade the requirements of Miranda as found in Seibert,” the court

held that Root’s post-Miranda statements were admissible so long as they were given voluntarily. Id. at

*10. Ultimately, after reviewing the specific, relevant

facts, the court concluded that the statements were

voluntary. Id. at *10–11.

But because the earlier pre-Miranda statements

should have been suppressed, and, finding that this

error was not harmless, the Michigan Court of Appeals vacated Root’s conviction and remanded for a

new trial. Id. at *11. The State appealed, but the

Michigan Supreme Court declined to review the case.

9

People v. Root, 910 N.W.2d 664 (Mich. 2018). Chief

Justice Markman would have granted leave, however,

because he was not convinced that the lower court

properly determined that Root was in custody at the

time she confessed. Id. at 664–65.

Root is convicted again.

The State tried Root again, and, this time, the

post-custodial, pre-Miranda statements were suppressed. App. 14a. The statements obtained after she

was provided Miranda warnings were admitted,

though, and Root moved to suppress them, too, this

time arguing that they were the product of an illegal

search. App. 22a. According to Root, she provided the

statements only after Detective DeVries confronted

her with the CSLI evidence, and that the CSLI evidence was obtained without a warrant as required by

this Court’s decision in Carpenter. App. 22a. Therefore, Root argued, her statements should have been

suppressed under the fruit-of-the-poisonous-tree doctrine. App. 22a. The trial court denied the motion.

App. 22a. A jury ultimately found Root guilty of the

lesser offense of second-degree murder, Mich. Comp.

Laws § 750.317. App. 14a. She was sentenced to 25 to

50 years in prison. App. 14a.

Root appealed again. Addressing her second suppression motion, the Michigan Court of Appeals noted

that, like the government agents in Carpenter, the police here relied on the Stored Communications Act, 18

U.S.C. § 2703, when obtaining the CSLI through a

warrantless tower dump. App. 26a–27a. Because the

police acted in good faith according to a federal statute

and then-applicable constitutional standards, suppression was not warranted. App. 28a. And more, the

10

court held, because the Carpenter decision only applied when police obtained CSLI related to a specific

phone and not, as happened here, when police obtained information gathered from a tower dump, the

decision did not apply to the facts of this case. App.

28a. Finally, the state court addressed Root’s argument that her statements should have also been suppressed because the police used her billing records to

confront her with her call to the Billy Graham hotline.

App. 28a–29a. The court found that argument was unpreserved and, in any event, neither Carpenter nor

any other precedent demonstrates that an unconstitutional search occurs when police obtain phone billing

records. App. 29a. Root’s conviction was ultimately affirmed, App. 14a, and the Michigan Supreme Court

declined to review the case, People v. Root, 947 N.W.2d

818 (Mich. 2020).

Root applies for habeas corpus relief.

Root next filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. She raised only one claim,

arguing that the Michigan Court of Appeals unreasonably applied Carpenter when it determined that the

CSLI and the billing records that the police obtained

and used in her interrogation did not require that her

statements be suppressed. (5/17/21 Br. in Supp. of

Pet., R. 2, Page ID # 19–37.) Root contended that this

violated her Fourth and Fifth Amendment rights. (Id.)

She also argued that the state court’s finding that the

good faith exception applied was an unreasonable application of United States v. Leon, 468 U.S. 879, 913

(1984) (adopting the good-faith exception to the exclusionary rule when officers reasonably rely on a warrant issued by a detached and neutral magistrate).

11

(Id. at 35–37.) The district court denied the petition.

The court found that Root’s claim fell exclusively under the Fourth Amendment and did not implicate the

Fifth Amendment because she did not argue that her

statement was involuntary. App. 31a–32a. And because she was given a full and fair opportunity to litigate her Fourth Amendment claim in state court, it

was barred from review by Stone v. Powell, 428 U.S.

465 (1976). App. 30a–31a. The district court denied

the petition and declined to issue a certificate of appealability. App. 33a–34a.

Root thereafter filed an application for a certificate of appealability in the United States Court of Appeals for the Sixth Circuit, raising the same arguments. (7/22/24 Mot. for Cert. of Appealability, Doc. 5,

Pages 4–9.) The Sixth Circuit found that “[r]easonable

jurists would not debate the district court’s resolution

of Root’s claim.” App. 4a. Because Michigan provided

Root with an opportunity to litigate her Fourth

Amendment claim, and she took advantage of that opportunity, the court ruled that her claim is barred by

Stone. App. 4a–5a. And although she asserts that her

claim should also be reviewed under the Fifth Amendment, the Sixth Circuit found that any Fifth Amendment claim was “inextricably interwoven” with her

Fourth Amendment claim. App. 5a. Specifically, the

court said that the claim that her statements should

be suppressed involves an inquiry into whether the

police unconstitutionally obtained CSLI and billing

records, which “is a Fourth Amendment issue.” App.

5a. The Sixth Circuit therefore denied Root’s application for a certificate of appealability. App. 5a.

12

REASONS FOR DENYING THE PETITION

I.

This case presents a poor vehicle to review

the alleged Seibert circuit split.

In her first reason for granting the petition, Root

identifies a split among the courts of appeals: seven

circuits have held that the plurality opinion from

Seibert is controlling, while two rely on Justice Kennedy’s concurring opinion. Curiously, though, Root

does not say which opinion she wants this Court to

adopt. Looking to the substance of her claim, this

omission makes sense—after all, the difference in the

legal analyses in the dueling Seibert opinions is not

implicated here. And even if it were implicated, procedural infirmities would cloud review here: the Seibert

question was not fully exhausted in the state courts,

nor was it raised or addressed below. Certiorari

should be denied.

A. Resolving the Seibert question would not

alter the reasoning or the result here.

This case presents a poor vehicle to review the alleged circuit split because Root does not argue that

adopting either the majority or minority rule would

have changed the outcome of her case.

Root identifies what she characterizes as a 9-2 circuit split. 1 Nine courts of appeals have held that

1 Although technically correct, it is hard to characterize the hold-

ings from the various courts of appeals on this issue as a “split.”

Of the two circuits that Root identifies as being in the minority,

neither is firm on the issue. In United States v. Heron, the Seventh Circuit declined to resolve which rules from Seibert govern,

564 F.3d 879, 885 (7th Cir. 2009), and cases both before and after

Heron from that circuit appear to have adopted the majority rule,

13

Justice Kennedy’s concurring opinion is the law of

their respective circuits; the remaining two have

found that the plurality opinion controls.

Briefly look at the facts of Seibert. An officer first

questioned the defendant without providing Miranda

warnings. 542 U.S. at 604–05. After the defendant

provided an incriminating statement, the officer gave

her a 20-minute break, after which he provided Miranda warnings, obtained a signed waiver, and continued the same line of questioning before obtaining a

similar incriminating statement. Id. at 605. The defendant had fully confessed before the warnings were

provided, and “the further questioning was a mere

continuation of the earlier questions and responses,”

which included “references back to the confession already given.” Id. at 616–17.

This Court held that the statements following the

midstream warnings were inadmissible. Id. at 617.

The plurality opinion opined that the “threshold issue” when evaluating an interrogation that includes

midstream Miranda warnings is whether, considering

the circumstances, “the warnings could function ‘effectively’ as Miranda requires.” Id. at 611–12. The plurality listed “a series of relevant facts” to consider

when determining whether midstream warnings are

effective. Id. at 615.

see United States v. Stewart, 388 F.3d 1079, 1091–92 (7th Cir.

2004); United States v. Hernandez, 751 F.3d 538, 539–40 (7th

Cir. 2014). And the Sixth Circuit has expressly questioned

whether it should continue to follow the minority rule. United

States v. Woolridge, 64 F.4th 757, 762 (6th Cir. 2023) (“On another day, we should ask whether we must keep our side of this

circuit split open.”).

14

Justice Kennedy concurred in the judgment, but

he indicated that the plurality’s test was too broad because it focused on “the perspective of the suspect”

and applied to “both intentional and unintentional

two-stage interrogations.” Id. at 622 (KENNEDY, J.,

concurring). He would have applied “a narrower test”

in which suppression is warranted only if the “twostep interrogation technique was used in a calculated

way to undermine the Miranda warning.” Id. In other

words, Justice Kennedy’s approach focused on the

subjective intent of the interrogating officer. 2

Given the differing approaches by the two opinions and the split between the circuits as to which approach to adopt, Root initially proposes a question:

which side of the split should this Court embrace? Yet,

after analyzing the Michigan Court of Appeals’ (first)

opinion, Root maintains merely that the court misapplied Seibert generally, not that it adopted the wrong

approach.

In its opinion, the Michigan Court of Appeals did

not expressly state which of Seibert’s opinions it was

relying on. It started off by citing the plurality opinion

from Seibert. But then the court found that suppression was not warranted because “the evidence d[id]

not suggest that the detectives engaged in a deliberate

two-stage interrogation technique designed to evade

the requirements of Miranda.” Root, 2017 WL

3798495, at *9 (emphasis added). The court went on

2 The dissenting opinion noted its specific disagreement with that

subjective approach, calling it “ill advised” and instead agreeing

with the plurality’s decision to “focus [the] analysis on the way

in which suspects experience interrogation.” Seibert, 542 U.S. at

624–27 (O’CONNOR, J., dissenting.).

15

to explain why the detectives could have reasonably

believed that Miranda warnings were not required

until after Root confessed, demonstrating that they

were not intentionally evading Miranda’s requirements. Id. at *10. In other words, the court employed

Justice Kennedy’s subjective approach.

Root does not contend that adopting the rule from

Justice Kennedy’s concurring opinion was wrong. Rather, she merely postulates that the state court’s determination that the detective’s interrogation technique was an inadvertent mistake and not deliberate

was incorrect based on the facts of the case. Put differently, she argues the misapplication of Justice

Kennedy’s subjective approach, not that resolving the

circuit split would change the outcome here. To this

end, she does not even advocate which side of the split

she favors. In other words, the circuit split does not

match the purported error here.

Because “the misapplication of a properly stated

rule of law” should “rarely” be a reason to grant a petition for a writ of certiorari, Supreme Court Rule 10,

and because Root asserts only that the state court

misapplied Seibert, her petition should be denied.

B. Section 2254’s limitations render the

Seibert question irrelevant to this case.

Even if resolving the circuit split could affect

Root’s underlying claim, a second reason this case presents a poor vehicle to review the issue is because the

strict limitations on the availability for habeas relief

in 28 U.S.C. § 2254(d)(1) alter the analysis.

16

Under § 2254(d)(1), if a state court has adjudicated a claim on the merits, habeas relief is unavailable unless that adjudication “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established Federal law.” 3 “[T]he

phrase ‘clearly established Federal law, as determined by the Supreme Court of the United States,’ . .

. refers to the holdings, as opposed to the dicta, of this

Court’s decisions as of the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 412

(2000) (emphasis added).

To succeed on her Seibert claim, then, Root would

have to show that the Michigan Court of Appeals’ decision was “contrary to, or an unreasonable application of,” the holding from Seibert. § 2254(d)(1). But

none of the opinions from that case garnered a majority of the Justices’ votes. So, identifying a holding is

not easy. This Court has provided some guidance in

cases involving plurality opinions: the holding is

whichever position offers the “narrowest grounds.”

Marks v. United States, 430 U.S. 188, 193 (1977).

Sometimes, though, it may be difficult to determine

which, if any, of the opinions in a case is “narrow[er]”

than another. See, e.g., Hughes v. United States, 584

U.S. 675, 679 (2018) (noting that differing interpretations of Marks led to a circuit split as to which of the

plurality or concurring opinions in Freeman v. United

States, 564 U.S. 522 (2011), controlled).

3 Another exception occurs when the state court adjudication “re-

sulted in a decision that was based on an unreasonable determination of the facts.” § 2254(d)(2). Root does not allege any unreasonable factual determinations.

17

As for this case, the premise of Root’s question

suggests that there was no “holding” from Seibert

which can be “clearly established.” As she points out,

even in direct review cases, there is a circuit split as

to which opinion controls. To answer her question—

and to possibly afford her relief on her claim—this

Court would not only have to determine which opinion

controls, but also whether the controlling opinion

amounted to “clearly established” law at the time the

state court rejected her claim. This additional analytical step, posing a jurisprudentially significant statutory-interpretation question, at the very least complicates the underlying issue. This case therefore presents a poor vehicle to review the Seibert circuit split.

C. The Seibert question

properly exhausted.

has

not been

A third reason this case presents a poor vehicle to

consider the question is because the Seibert issue has

not been fully exhausted in the state courts.

The underlying factual allegations here involve

the effectiveness of mid-interrogation Miranda warnings, an issue that Seibert addressed. After her first

trial, Root argued in the Michigan Court of Appeals,

the state’s first-line intermediate appellate court, that

her statements should have been suppressed. Root,

2017 WL 3798495, at *1. The Michigan Court of Appeals agreed that any of the statements she made before Miranda warnings were given should have been

suppressed. Id. at *8. But, looking to Elstad and

Seibert, it determined that the mid-interrogation

warnings were effective considering the facts of this

case and held that Root’s post-Miranda statements

were admissible. Id. at *9–10. And, after determining

18

that admitting the pre-Miranda statements was reversible error, the Michigan Court of Appeals remanded the case for a new trial. Id. at *11. The State

appealed that decision—Root did not.

In other words, Root did not appeal the Michigan

Court of Appeals’ determination that her post-Miranda statements were admissible. And although

Root tried to suppress the post-Miranda statements

again at her second trial, she did so only by arguing

that they were barred by Carpenter, not by Seibert.

App. 23a. She then raised the Carpenter argument

through her direct appeal following her second trial.

App. 23a. Quite simply, the Seibert question was

never presented to the Michigan Supreme Court.

That’s a problem. Federal law prohibits habeas relief unless “the applicant has exhausted the remedies

available in the courts of the State.” 28 U.S.C.

§ 2254(b)(1)(A). 4 And so long as an applicant still has

the right under state law to raise a particular claim, it

cannot be considered exhausted. § 2254(c). Root has a

right under Michigan law to raise her claim through a

postconviction motion for relief from judgment. See

Mich. Ct. R. 6.500 et. seq. 5 Thus, her claim is not exhausted, and a federal court cannot grant habeas relief.

4 There are two exceptions: (1) if “there is an absence of available

State corrective process,” or (2) if “circumstances exist that render such process ineffective to protect the rights of the applicant.”

§ 2254(b)(1)(B). Neither exception applies here.

5 Although the Seibert claim was “decided against” Root “in a

prior appeal,” which normally precludes state postconviction relief in Michigan, Mich. Ct. R. 6.508(D)(2), it bears repeating that

she never raised the claim in the Michigan Supreme Court. So

even if the state trial and intermediate appellate courts cannot

19

Because Root cannot obtain habeas relief even if

her Seibert claim had merit, this case presents a poor

vehicle to review the issue.

D. The Seibert question has not been

litigated in the lower courts.

Yet another reason why this case presents a poor

vehicle to review the Seibert question—a fourth one—

is that it was not raised and addressed in the courts

below.

As already laid out, in her direct appeal following

her first trial, Root raised a general challenge to the

admissibility of her statements. The Michigan Court

of Appeals agreed with her, in part, and granted her a

new trial. That court, however, ruled that Seibert did

not require that Root’s post-Miranda statements be

suppressed. At her second trial, Root challenged the

admissibility of those post-Miranda statements based

on entirely different grounds (the Fourth Amendment

Carpenter issue that she raises as a separate issue in

this petition). After she was convicted following her

second trial, she continued to raise the Carpenter issue in the state appellate courts.

She continued that trend when she applied for a

writ of habeas corpus in the district court. The only

claim that she asserted as a basis for relief was that

her Fourth (and Fifth) Amendment rights were violated and that the Michigan Court of Appeals unreasonably applied Carpenter when it ruled that her

consider the Seibert claim on state postconviction review, the

Michigan Supreme Court could. So she still has a right under

state law to raise the claim, meaning it is unexhausted.

20

statements after the detectives confronted her with

the CSLI and phone billing evidence were admissible.

(5/17/21 Br. in Supp. of Pet., R. 2, Page ID # 19–37.)

She never claimed that she was being unconstitutionally detained as a result of the state court’s allegedly

improper application of Seibert. So the district court

never addressed the issue.

Neither did the Sixth Circuit. In her application

for a certificate of appealability, Root again raised a

single issue involving Carpenter. (7/22/24 Mot. for

Cert. of Appealability, Doc. 5, Pages 4–9.) She did not

ask the court of appeals to grant her a certificate of

appealability on a Seibert claim. That tactic makes

sense. To obtain a certificate of appealability, Root

was required to show “that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000) (emphasis added). It would

be strange to argue the district court’s assessment of

the Seibert claim was debatable or wrong when the

district court was never asked to consider that claim.

Without the benefit of a ruling from the lower

court, this Court would be “writ[ing] on a clean slate,”

which it “ordinarily take[s] great pains to avoid.” Allen

v. Hardy, 478 U.S. 255, 262 (1986) (MARSHALL, J., dissenting). See also Cutter v. Wilkinson, 544 U.S. 709,

718, n.7 (2005) (“Because these defensive pleas were

not addressed by the Court of Appeals, and mindful

that we are a court of review, not of first view, we do

not consider them here.”); Byrd v. United States, 138

S. Ct. 1518, 1527 (2018) (“[I]t is generally unwise to

consider arguments in the first instance.”). This Court

21

should therefore not consider the Seibert issue and

should deny the petition.

II. The voluntariness question does not present

an important question for review.

In her second reason for granting the petition,

Root asserts that this Court should review the determination that her confession was voluntary. This

question is unworthy of review for two reasons.

First, like the Seibert issue, Root has neither

properly exhausted this claim in the state courts nor

has it been raised and decided in the federal courts

below. The last time the voluntariness of her statements was litigated was in the Michigan Court of Appeals following Root’s first trial. That court found that

her statements were voluntarily made. Root, 2017 WL

3798495, at *11. But because that court ultimately

ruled in her favor and granted a new trial, she did not

challenge that ruling in the Michigan Supreme Court.

And she raised a Fourth Amendment challenge, not a

voluntariness challenge, on direct review following

her second trial. App. 23a. She continued to raise that

Fourth Amendment challenge within her application

for habeas corpus relief in the district court and on appeal in the Sixth Circuit. Although she vaguely argued that the Fifth Amendment was also implicated

by her claim, she never asserted that her statements

were involuntary. Because she last raised her voluntariness claim following the intermediate appellate

court’s decision after her first trial, it is unexhausted

and abandoned.

Second, the voluntariness question is entirely fact

based. It presents no conflict among state or federal

22

courts, nor an unresolved important federal question.

Root simply argues that the Michigan Court of Appeals’ “reasoning about voluntariness was a misapplication of this Court’s precedents.” Pet. at 16. So the

question for review consists of nothing more than a

“misapplication of a properly stated rule of law,”

which, again, should rarely be a reason to grant a petition. Supreme Court Rule 10.

Even more, despite claiming “a misapplication of

this Cout’s precedents,” Pet. at 16, Root cites none of

those precedents. The only case she does cite is Cardwell v. Taylor, 461 U.S. 571 (1983), but Cardwell did

not address voluntariness at all. Rather, Cardwell determined that the habeas petitioner’s Fourth Amendment claim was barred by Stone and that the petitioner was only entitled to habeas relief if he could

show that his statements were involuntary under the

Fifth Amendment. Id. at 572–73. It did not review the

voluntariness of the petitioner’s statements or make

any pronouncements of law on the issue. The Court

did remand for the lower courts to adjudicate the voluntariness issue, id. at 573—because the petitioner

specifically challenged the voluntariness of his statements within his habeas petition, see Taylor v. Cardwell, 579 F.2d 1380, 1382 (9th Cir. 1978). Root did not

do so here.

The failure to even cite Supreme Court precedent

on the voluntariness issue presents an additional reason to deny review. The claim was adjudicated on the

merits by a state court. Under 28 U.S.C. § 2254(d),

that means that Root is only entitled to relief if the

state court’s decision “was contrary to, or involved an

unreasonable application of,” this Court’s precedents

23

or “was based on an unreasonable determination of

the facts.” Root makes no argument suggesting that

either of those preconditions have been met.

She instead focuses on a single fact—that detectives told her that “prosecutors were standing by and

that she was going to be charged”—as evidence that

her statements were involuntary. Pet. at 16. She

acknowledges that the state court had relied on other

factors (i.e., she drove herself to the interview; she had

ended earlier interviews on her terms; she initially

tried to explain away inculpatory evidence in an intelligent manner; etc.), Pet. at 15, but she does not say

why her single factor outweighs the factors demonstrating that her statements were voluntary. Nor does

she say how, under the “totality of all the surrounding

circumstances,” her “will was overborne.” Schneckloth

v. Bustamonte, 412 U.S. 218, 226 (1973). And she does

not explain why all “fairminded jurists” would disagree with the state court’s voluntariness determination, which was entirely reasonable. Richter, 562 U.S.

at 102. Her question is not worthy of review.

III. The proposed Stone exception is precluded

by this Court’s precedents and, regardless,

cannot form the basis for relief in this case.

In her final reason to grant the petition, Root argues that this Court should carve out an exception to

the rule from Stone that precludes review of a Fourth

Amendment claim if the applicant has had a full and

fair opportunity to litigate the claim in the state

courts. Review is unwarranted, though, because the

exception is analytically unsound on its face. And even

if it were not, this is a poor vehicle to evaluate the

24

viability of the novel exception for two additional reasons: (1) the claim was not presented below as here,

and (2) the proposed exception is designed to procure

a new rule of law, which cannot form the basis for relief under § 2254(d)(1) when, as here, the state court

ruled on the claim’s merits.

A. The Stone exception is precluded by this

Court’s retroactivity principles.

To understand why the exception that Root advocates for would not work, look briefly at the reasoning

underlying the Stone rule.

In Stone, this Court outlined the “exclusionary

rule,” which it described as “a judicially created means

of effectuating the rights secured by the Fourth

Amendment.” 428 U.S. at 482. The rule, the Court

said, is designed to “deter future unlawful police conduct,” id. at 484; it is “not a personal constitutional

right,” id. at 486. Therefore, not every Fourth Amendment violation requires excluding the unconstitutionally obtained evidence. Id. at 485–89. Courts must employ a “balancing process” in individual cases, weighing the deterrent effect of the rule with the interest in

determining the truth at trial. Id. at 487–89.

The Court employed that balancing test to the issue in Stone, which was whether the exclusionary rule

should be extended to cases on federal habeas corpus

review. Id. at 489. It found that the benefit of the rule

on collateral review was small in relation to its costs.

Id. at 489–93. In particular, the Court noted that

“[t]he view that the deterrence of Fourth Amendment

violations would be furthered rests on the dubious

25

assumption that law enforcement authorities would

fear that federal habeas review might reveal flaws in

a search or seizure that went undetected at trial and

on appeal.” Id. at 493. Therefore, the Court held, if

“the State has provided an opportunity for full and

fair litigation of a Fourth Amendment claim, a state

prisoner may not be granted federal habeas corpus relief” on that claim. Id. at 494.

Root contends that there should be an exception

to the Stone bar when the Fourth Amendment issue

involves technology that “enhances law enforcement’s

surveillance abilities.” Pet. at 17. According to her,

“the law often develops slower than the technology,”

so a state court evaluating “questions of first impression” regarding a specific technology will not have

“guidance from this Court” as to how to resolve the issue. Pet. at 18. Thus, she says, a petitioner raising

such a claim can never have a full and fair opportunity

to litigate the claim in state courts. Pet. at 18.

Whatever the intrigue of Root’s question, the answer she proposes would violate retroactivity principles. A “question[ ] of first impression”—in other

words, an issue that would result in a new legal rule—

cannot be applied to a case on federal habeas review.

In Edwards v. Vannoy, this Court was clear: only if a

new constitutional rule is substantive does it “apply

retroactively on federal collateral review.” 593 U.S.

255, 276 (2021). If the new rule is procedural, on the

other hand, it does “not apply retroactively on federal

collateral review.” Id. What’s the difference? “New

substantive rules alter ‘the range of conduct or the

class of persons that the law punishes,’ ” while “[n]ew

procedural rules alter ‘only the manner of

26

determining the defendant’s culpability.’ ” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)).

The application of the Fourth Amendment’s exclusionary rule to new technology that “enhances law enforcement’s surveillance abilities,” Pet. at 17, would

affect only what evidence could be admitted against a

criminal defendant at trial—i.e., “ ‘the manner of determining the defendant’s culpability,’ ” id. (quoting

Summerlin, 542 U.S. at 353). Thus, Root proposes a

new procedural rule that cannot be retroactively applied on federal collateral review.

For a clearer look, take the facts here. Remember,

in the state courts, Root argued that, under Carpenter,

the CSLI obtained by a “tower dump” without a warrant was an unconstitutional search. Carpenter, however, involved the CSLI from a targeted individual.

585 U.S. at 301–02. After ruling that obtaining those

records was a search, the Carpenter Court specifically

noted that its holding did not apply to “ ‘tower dumps’

(a download of information on all the devices that connected to a particular cell site during a particular interval).” Id. at 316. The facts of this case being firmly

outside the opinion’s reach, what Root was really arguing for was to extend Carpenter, something the

Michigan Court of Appeals was unwilling to do. 6 So,

she argues now, an exception to Stone should apply so

that the federal courts on collateral review can consider extending Carpenter.

6 Root now acknowledges the underlying issue is “whether Car-

penter should be extended to the type of cell phone dump used to

gather information against the Petitioner.” Pet. at 4 (emphasis

added).

27

A rule that would extend the Fourth Amendment’s exclusionary rule to a new context would not

place certain conduct “ ‘beyond the power of the criminal law-making authority to proscribe.’ ” Teague v.

Lane, 489 U.S. 288, 307 (1989) (quoting Mackey v.

United States, 401 U.S. 667, 692 (1971) (HARLAN, J.,

concurring in judgments in part and dissenting in

part)). Rather, it would alter the manner—precluding

the prosecution from using tower dump CSLI at a

criminal trial—of determining culpability. Again, the

proposed exception is a procedural rule that cannot be

retroactively applied on federal collateral review.

Because Stone applies only to collateral proceedings, and because Root’s proposed exception to Stone

cannot be applied retroactively on collateral review,

the exception is entirely foreclosed. It does not warrant this Court’s review.

B. This case presents a poor vehicle to

review the proposed Stone exception.

Even if the proposed Stone exception were analytically viable, this case is not the one to consider it, for

two reasons.

First, just like her other issues, the proposed

Stone exception has not been litigated in the courts

below. After she was convicted following her second

trial, Root argued in the state appellate courts that

obtaining the CSLI and her phone billing records

without a warrant were Fourth Amendment violations under this Court’s decision in Carpenter, and

therefore the statements that she gave after the police

confronted her with that information should have

28

been suppressed. App. 23a. After the state courts denied relief, she made the same argument in the district court, though she tacked on a perfunctory citation to the Fifth Amendment without any analysis.

App. 31a. The district court determined that the claim

was barred under Stone. App. 30a–31a. Then, in her

application for a certificate of appealability in the

Sixth Circuit, she argued that her claim should not be

barred by Stone because the claim also implicated the

Fifth Amendment. App. 5a. Noting that the substance

of the claim implicated only the Fourth Amendment

and not the Fifth Amendment, the Sixth Circuit denied her application. App. 5a. In sum, the argument

that Root put forth, and that the courts below rejected,

was that Stone did not even apply to her Carpenter

argument.

Now, in this petition, she seems to concede that

her Carpenter argument is barred by Stone, yet, for

the first time, she maintains that there should be

some sort of rapidly-changing-technology exception to

Stone. This Court should not countenance such a rapidly-changing-litigation tactic. Because the courts below were presented with an argument that was, in effect, the inverse of the question presented here, the

question is not prime for review. See Cutter and Byrd,

supra.

Second, the proposed exception could not apply in

this case because it is precluded by § 2254(d)(1)’s litigation bar. Because the Michigan Court of Appeals adjudicated Root’s Carpenter claim on the merits, App.

23a–29a, she cannot obtain relief unless the court’s

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law,”

29

§ 2254(d)(1). When determining what is clearly established federal law, federal courts look to “this Court’s

precedents as of the time the state court renders its

decision.” Greene v. Fisher, 565 U.S. 34, 38 (2011)

(cleaned up). And “ ‘if a habeas court must extend a

rationale before it can apply to the facts at hand,’ then

by definition the rationale was not ‘clearly established

at the time of the state-court decision.’ ” White v.

Woodall, 572 U.S. 415, 426 (2014) (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004)).

Root now acknowledges that the CSLI information obtained in her case did not fall under Carpenter. In fact, she describes the issue as “whether Carpenter should be extended to the type of cell phone

dump used to gather information against” her. Pet. at

4 (emphasis added). So even if the exception to Stone

that she advocates for was adopted, her Fourth

Amendment claim, on its face, could not form the basis of relief in her § 2254 habeas petition.

In sum, the proposed Stone exception does not present a viable question for certiorari review in this

case—or any other.

30

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Dana Nessel

Michigan Attorney General

Ann M. Sherman

Solicitor General

Counsel of Record

P.O. Box 30212

Lansing, Michigan 48909

ShermanA@michigan.gov

(517) 335-7628

Jared Schultz

Assistant Attorney General

Criminal Appellate and

Parole Appeals Division

Michigan Department of

Attorney General

Attorneys for Respondent

Dated: JULY 2025