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

Supreme Court briefAug 12, 2025

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No. 24-1122

In the Supreme Court of the United States

ROBIN ROOT,

Petitioner,

JEREMY HOWARD, WARDEN,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

REPLY BRIEF FOR PETITIONER

DAVID A. DODGE

Dodge & Dodge, P.C.

200 Ottawa Ave., N.W.

Grand Rapids, MI

49503

PAUL W. HUGHES

Counsel of Record

SARAH P. HOGARTH

ANDREW A. LYONS-BERG

GRACE WALLACK

McDermott Will & Schulte LLP

500 North Capitol Street NW

Washington, DC 20001

(202) 756-8000

phughes@mwe.com

Counsel for Petitioner

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Reply Brief for Petitioner ............................................1

I. The Seibert issue warrants review. .......................1

A. The state acknowledges a stark split as

to which Seibert opinion controls. ....................1

B. This is a suitable vehicle. .................................5

C. The question presented is important

and recurring. ................................................. 10

II. Root’s other claims are worthy of review. ........... 11

Conclusion ................................................................. 12

TABLE OF AUTHORITIES

Cases

Cardwell v. Taylor,

461 U.S. 571 (1983) .............................................. 11

Carpenter v. United States,

585 U.S. 296 (2018) .............................................. 11

D’Ambrosio v. Bagley,

527 F.3d 489 (6th Cir. 2008) .................................. 7

Elonis v. United States,

575 U.S. 723 (2015) ............................................... 4

Hemphill v. New York,

595 U.S. 140 (2022) ................................................ 8

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) ................................................ 8

Lockyer v. Andrade,

538 U.S. 63 (2003) .................................................. 9

Marks v. United States,

430 U.S. 188 (1977) ............................................ 2, 3

Michigan v. Tucker,

417 U.S. 433 (1974) .............................................. 11

Miranda v. Arizona,

384 U.S. 436 (1966) .................................. 2, 5, 7, 10

Missouri v. Seibert,

542 U.S. 600 (2004) ...........................................1-10

People v. Root,

2017 WL 3798495 (Mich. Ct. App.

Aug. 31, 2017) .....................................................5-7

Reyes v. Lewis,

833 F.3d 1001 (9th Cir. 2016) ............................ 3, 4

iii

Cases — continued

State v. O’Neill,

936 A.2d 438 (N.J. 2007)...................................... 10

Thompson v. Keohane,

516 U.S. 99 (1995) ................................................ 11

United States v. Bailon,

60 F.4th 1032 (7th Cir. 2023) ................................ 4

United States v. Chatrie,

136 F.4th 100 (4th Cir. 2025) .............................. 12

United States v. Heron,

564 F.3d 879 (7th Cir. 2009) .................................. 4

United States v. Neely,

124 F.4th 937 (D.C. Cir. 2024) .............................. 4

United States v. Ray,

803 F.3d 244 (6th Cir. 2015) .................................. 3

United States v. Rodriguez–Preciado,

399 F.3d 1118 (9th Cir. 2005) ................................ 3

United States v. Smith,

110 F.4th 817 (5th Cir. 2024) .............................. 12

United States v. Taylor,

596 U.S. 845 (2022) ................................................ 4

United States v. Woolridge,

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

Williams v. Taylor,

529 U.S. 362 (2000) ................................................ 9

Withrow v. Williams,

507 U.S. 680 (1993) .............................................. 11

Cases — continued

Yee v. City of Escondido,

503 U.S. 519 (1992) ................................................ 8

Statutes

28 U.S.C.

§ 2254(b)(3) ............................................................. 7

§ 2254(d)(1) ..................................................... 1, 8, 9

Other Authorities

Brandon L. Garrett, The Substance of

False Confessions, 62 Stan. L. Rev.

1051 (2010) ........................................................... 10

Brief Amici Curiae of Criminal Law and

Procedure Professors, Alvarez v.

United States, No. 22-7741 (U.S.

July 10, 2023) ......................................................... 3

Mary D. Fan, The Police Gamesmanship

Dilemma in Criminal Procedure,

44 U.C. Davis L. Rev. 1407 (2011) ...................... 10

Pet., Alvarez v. United States,

No. 22-7714 (U.S. June 5, 2023) ........................... 4

Pet., Johnson v. North Carolina,

No. 18-1542 (U.S. June 10, 2019) ......................... 4

Pet., Wass v. Idaho, No. 17-425

(U.S. Sept. 20, 2017) ............................................. 4

Pet., South Carolina v. Navy,

No. 09-1459 (U.S. May 27, 2010) .......................... 4

Saul M. Kassin, False Confessions:

Causes, Consequences, and

Implications for Reform, 1 SAGE J.

112 (2014) ............................................................. 10

REPLY BRIEF FOR PETITIONER

In the two decades since it was decided, federal

and state courts have struggled to apply this Court’s

fractured reasoning in Missouri v. Seibert, 542 U.S.

600 (2004). Multiple circuits have concluded that Justice Kennedy’s lone concurrence represents the holding of the Court, even though both the plurality and

dissent explicitly rejected Justice Kennedy’s focus on

the subjective intent of the interrogating officers. This

misapplication of Marks has caused courts across the

country to adopt as Seibert’s holding a position that

was endorsed by (at most) two justices and explicitly

rejected by seven. This result cannot stand.

The State’s chief contention is that Root failed to

exhaust her Seibert argument in state court. But the

State expressly waived exhaustion in its federal court

brief; it cannot resurrect that objection now to defeat

review.

The State’s other arguments lack merit. Root’s interrogation mirrored the facts of Seibert almost exactly—yet the Michigan courts reached the opposite

result. This error entitles Root to relief under 28

U.S.C. § 2254(d)(1). And the question presented involves an issue of fundamental constitutional rights

about which courts are hopelessly divided, and for

which this case is a suitable vehicle. The Court should

grant certiorari.

THE SEIBERT ISSUE WARRANTS REVIEW.

A. The State acknowledges a stark split as to

which Seibert opinion controls.

1. The State acknowledges a clear and intractable

split among the circuits over which opinion from

Seibert controls. See BIO 12 (“[S]even circuits have

held that the plurality opinion from Seibert is

controlling, while two rely on Justice Kennedy’s concurring opinion.”).

There was no majority opinion in Seibert. Justice

Souter, writing for a four-justice plurality, held that

the sufficiency of Miranda warnings in a two-stage interrogation would depend on five objective factors.

Seibert, 542 U.S. at 615. Justice Kennedy concurred

only in the judgment. Rather than follow the plurality’s “objective inquiry,” he would consider whether officers employed a two-stage interrogation technique

deliberately. Id. at 621-622 (Kennedy, J., concurring).

If so, post-warning statements could be admissible

only if the police take specific “curative measures.”

Ibid.

Both the four-justice plurality opinion and four

justices in dissent explicitly rejected Justice Kennedy’s focus on the subjective intent of the officer. 542

U.S. at 616 & n.6 (plurality) (“Because the intent of

the officer will rarely be as candidly admitted as it was

here … the focus is on facts apart from intent.”); id. at

623 (O’Connor, J., dissenting) (“[T]he plurality correctly declines to focus its analysis on the subjective

intent of the interrogating officer.”). 1

2. Marks v. United States teaches that, “[w]hen a

fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five

Justices, the holding of the Court may be viewed as

that position taken by those Members who concurred

in the judgments on the narrowest grounds.” 430 U.S.

Justice Breyer “join[ed] the plurality’s opinion in full” but endorsed Justice Kennedy’s opinion “insofar as it is consistent

with” the plurality’s approach. 542 U.S. at 618 (Breyer, J., concurring).

188, 193 (1977). Because Justice Kennedy’s opinion is

not necessarily “narrower” than the plurality’s, nor

represents “a common denominator of the Court’s reasoning,” applying Marks to Seibert has resulted in pervasive disagreement among the lower courts.

Most circuits hold that Justice Kennedy’s concurrence controls, though “all of these courts engage with

Marks only superficially, quoting its language with no

analysis.” Reyes v. Lewis, 833 F.3d 1001, 1009 (9th

Cir. 2016) (Callahan, J., dissenting from denial of rehearing en banc) (quotation marks omitted); see Pet.

10 (listing cases).

The Sixth and Seventh Circuits, by contrast, have

concluded that “Justice Kennedy’s intent-based test is

not the narrowest ground on which the Court agreed.”

United States v. Ray, 803 F.3d 244, 270 (6th Cir. 2015)

(emphasis added). Although Justice Kennedy described his analysis as “narrower,” “three of the four

justices in the plurality and the four dissenters decisively rejected any subjective good faith consideration.” United States v. Rodriguez–Preciado, 399 F.3d

1118, 1139 (9th Cir. 2005) (Berzon, J. dissenting).

Thus, Justice Kennedy’s concurrence “‘embodies a position supported by two Justices, at most.’” Ray, 803

F.3d at 271 (quoting Rodriguez–Preciado, 399 F.3d at

1138-1140 (Berzon, J., dissenting)).

Nor is it clear that Justice Kennedy’s concurrence

is the narrowest ground for the result in Seibert. See

Brief Amici Curiae of Criminal Law and Procedure

Professors 15, Alvarez v. United States, No. 22-7741

(U.S. July 10, 2023) (the concurrence “is broader than

the Seibert plurality in cases where police officers use

a deliberate two-step interrogation strategy,” because,

regardless of whether the plurality’s objective test is

met, the confession would not be admissible without

“specific, curative steps”); Reyes, 833 F.3d at 1008

(Callahan, J., dissenting) (“[T]here are likely to be

cases where relief would be granted under Justice

Kennedy’s test but not the plurality’s test”).

State courts are also divided: At least thirteen

states and two U.S. territories apply Justice Kennedy’s test, while thirteen other states apply the plurality opinion or a combination. 2 There is simply no

consensus—among federal or state courts—on how to

interpret Seibert.

3. The State attempts to downplay the importance

of this division by claiming the Sixth and Seventh circuits are “not firm on the issue.” BIO 12 n.1. Not so.

Both courts continue to apply the objective test from

the Seibert plurality. See United States v. Woolridge,

64 F.4th 757, 760 (6th Cir. 2023); United States v.

Bailon, 60 F.4th 1032, 1038 (7th Cir. 2023) (applying

both tests); see also United States v. Heron, 564 F.3d

879, 884 (7th Cir. 2009) (“[W]e find it a strain at best

to view [Justice Kennedy’s] concurrence * * * as the

narrowest ground on which a majority of the Court

could agree.”). Setting aside the more evenly matched

split among state high courts, the fact that the circuit

split is lopsided does not undermine its durability or

its importance. See, e.g., United States v. Taylor, 596

U.S. 845, 850 (2022) (resolving 3-1 split); Elonis v.

United States, 575 U.S. 723 (2015) (reviewing 11-2

split).

The split, moreover, continues to widen. See

United States v. Neely, 124 F.4th 937, 949 (D.C. Cir.

2024) (holding for the first time that the Justice

See Pet. at 12-13, Alvarez, No. 22-7741 (collecting cases).

Kennedy’s concurrence controls in the D.C. Circuit). It

is thus no surprise that litigants, including multiple

state attorneys general, have asked this Court to resolve this issue for years. E.g., Pet., Alvarez v. United

States, No. 22-7714 (U.S. June 5, 2023); Pet., Johnson

v. North Carolina, No. 18-1542 (U.S. June 10, 2019);

Pet., Wass v. Idaho, No. 17-425 (U.S. Sept. 20, 2017);

Pet., South Carolina v. Navy, No. 09-1459 (U.S. May

27, 2010). Review is now warranted.

B. This is a suitable vehicle.

The State’s vehicle objections lack merit.

1. The State incorrectly claims that the Michigan

court “adopt[ed] the rule from Justice Kennedy’s concurring opinion.” BIO 15. But the decision does not

even mention the concurrence, so it is odd to suggest

that it adopted that approach. See People v. Root, 2017

WL 3798495, at *9-10 (Mich. Ct. App. Aug. 31, 2017).

At best, the Michigan court applied a mixture of

the plurality and concurring opinions, and it was ultimately faithful to neither. The court cited the plurality’s focus on whether the mid-stream warnings “could

function ‘effectively’ as Miranda requires” (Root, 2017

WL 3798495, at *9), but then concluded that “the evidence does not suggest that the detectives engaged in

a deliberate two-stage interrogation technique”

(ibid.). The court never evaluated whether the warnings the officers gave Root—after interrogating her for

over three hours, in the same location, with the same

detectives—“effectively advised [her] of the choice the

Constitution guarantees.” Seibert, 542 U.S. at 611.

Nor is it any answer that Root contends that she

is entitled to relief under either opinion. The Michigan

court denied her relief on its application of Seibert, an

approach that was not true to either Seibert opinion.

Correcting this doctrinal misunderstanding of Seibert

would therefore “change[] the outcome of [Root’s]

case.” BIO 12.

This case is also an excellent vehicle for clarifying

Seibert because the facts of Root’s interrogation overlap almost exactly with Seibert itself. As in Seibert,

Root’s “unwarned interrogation was conducted in the

station house, and the questioning was systematic, exhaustive, and managed with psychological skill.”

Seibert, 542 U.S. at 616; compare Root, 2017 WL

3798495, at *3-7 (describing nearly four hours of prewarning interrogation in a windowless room at the

Sherriff’s office, flanked by armed detectives, in which

one detective obtained the confession through the “interrogation technique” of using “accusatory and intense” questioning to create “a sense of inevitability

and immediacy of the charges against Root, and the

urgency with which she needed to respond immediately if she were to have any chance of mitigating a

certain charge of first-degree murder”). The 31-minute length of this “accusatory and intense” phase of

Root’s interrogation was comparable to the entire prewarning questioning in Siebert. Compare ibid. with

Seibert, 542 U.S. at 604-605 (“30 to 40 minutes”).

If anything, the two-step interrogation here was

more egregious than in Seibert: There, the Court

found that “it would have been unnatural to refuse to

repeat at the second stage what had been said before,”

in part because “[t]he warned phase of questioning

proceeded after a pause of only 15 to 20 minutes, in

the same place as the unwarned segment,” and involved “the same officer.” 542 U.S. at 616-617. Here

too, the post-confession, post-Miranda questioning

continued in the same place and with the same officers, but did not even afford Root the “20-minute coffee

and cigarette break” between phases that the Seibert

Court found too short to cure the constitutional problem. Id. at 605; compare Root, 2017 WL 3798495, at

*9-10.

Whatever one calls the approach the Michigan

court took, it is not consistent with Seibert’s plurality

or its concurrence. If one thing is clear, it is that five

justices voted in Seibert to exclude post-warning

statements that were obtained under nearly the same

circumstances. At a minimum, the Court should

grant, vacate, and remand so the Sixth Circuit may

consider Root’s Seibert claim anew.

2. Next, the State claims that Root failed to

properly exhaust her Miranda claim in state court.

But the State expressly waived exhaustion below. Under a heading labeled “Exhaustion,” the State wrote:

“The State is not arguing that consideration of any of

Root’s habeas claims is barred by the failure to exhaust a claim for which a state court remedy exists.”

D. Ct. Dkt. 7, at 4. By statute, an express waiver of

exhaustion by the State can “estop[]” it from “reliance

upon the requirement.” 28 U.S.C. § 2254(b)(3); see

D’Ambrosio v. Bagley, 527 F.3d 489, 495 (6th Cir.

2008) (finding express waiver of exhaustion by the

state’s conduct in district court). Having disclaimed in

district court any contention that Root failed to exhaust her state-court remedies, the State cannot rely

on exhaustion to urge denial of her petition now. 3

The State’s waiver makes sense, as Root objected under the

Fifth Amendment to the introduction of her post-Miranda statements at her second trial, as the State admits (D. Ct. Dkt. 7, at

The State also suggests that the Seibert issue was

not preserved in the federal habeas proceedings. But

Root argued in her habeas petition and appeal that

the introduction of her post-Miranda statements violated the Fifth Amendment. D. Ct. Dkt. 2, at 19, 2223; C.A. Dkt. 5, at 4 (arguing that the officers’ use of

the cell-site evidence “tainted her re-iteration of her

pre-Miranda admissions during the post-Miranda

continuing interrogation” and “resulted in her self-incrimination in violation of her Fifth Amendment

rights”).

Having properly presented below the federal

claim that use of her post-Miranda statements resulted in compelled self-incrimination in violation of

the Fifth Amendment, Root “can make any argument

in support of that claim” before this Court; “parties

are not limited to the precise arguments they made

below.” Yee v. City of Escondido, 503 U.S. 519, 534535 (1992) (arguments that ordinance constituted a

taking “in two different ways * * * are not separate

claims. They are, rather, separate arguments in support of a single claim—that the ordinance effects an

unconstitutional taking.”); accord Lebron v. Nat’l R.R.

Passenger Corp., 513 U.S. 374, 379 (1995); Hemphill

v. New York, 595 U.S. 140, 149 & n.2 (2022). The

State’s contention that the Seibert argument was not

preserved therefore falls flat.

3. Finally, the State claims that 28 U.S.C.

§ 2254(d)(1) prevents Root from obtaining habeas

26 n.5 (“Root did seek suppression of the statement and later objected to the statement at trial.”)) and through her subsequent

state appeals (D. Ct. Dkt. 8 at 249-240, 467-468).

relief because (it says) “there was no ‘holding’ from

Seibert that can be ‘clearly established.’” BIO 17.

This is wrong twice over. First, the State disregards the second half of the test: A state court decision is “contrary to” or “an unreasonable application

of [] clearly established federal law” (28 U.S.C.

§ 2254(d)(1)) either “if the state court applies a rule

that contradicts the governing law,” or if it “confront[ed] a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrive[d] at a result different from [the Supreme

Court’s] precedent.” Lockyer v. Andrade, 538 U.S. 63,

73 (2003); accord Williams v. Taylor, 529 U.S. 362,

405-406 (2000). The latter is present here: The relevant facts of Root’s interrogation are “materially indistinguishable” from those of Seibert, yet the Michigan court came to the “opposite result.” Ibid.; see supra pages 5-7.

Second, even as to the first prong of the test, the

State’s argument is essentially that this Court’s review is precluded any time there is a circuit split over

the proper interpretation of the Court’s case law. Cf.

BIO 17. But mere lower court disagreement on how to

apply this Court’s precedents cannot preclude review

under Section 2254. In Lockyer, for example, the

Court recognized that its Eighth Amendment precedents did not “establish[] a clear or consistent path for

courts to follow.” 538 U.S. at 72. Yet the Court granted

certiorari to determine the “governing legal principle.”

Ibid. For this reason, too, Section 2254(d)(1) is no obstacle.

C. The question presented is important and

recurring.

The question presented concerns a fundamental

rule of constitutional law: under what circumstances

a suspect may make a “free and rational choice” to

waive the “constitutional privilege to remain silent”

(Miranda v. Arizona, 384 U.S. 436, 465 (1966)) despite

questioning prior to Miranda warnings. “Miranda’s

clarity is one of its strengths” (Seibert, 542 U.S. at 622

(Kennedy, J., concurring)), but “Seibert has been a

puzzle for police and lower courts” (Mary D. Fan, The

Police Gamesmanship Dilemma in Criminal Procedure, 44 U.C. Davis L. Rev. 1407, 1428 (2011)), eroding that clarity and undermining constitutional

rights.

This situation is untenable for officers and defendants alike. Officers “must have workable standards to

apply to the complex, ever-changing fact patterns that

play out in the real world,” but the “shifting sands of

federal jurisprudence provide no certainty concerning

the standard that might apply.” State v. O’Neill, 175,

936 A.2d 438, 454 (N.J. 2007) (noting the “confusion

in federal and state courts” that the “Seibert opinions

have sown”).

And confusion among lower courts allows coercive

interrogation tactics to persist. Among later-exonerated prisoners, 20% to 25% had falsely confessed to

police. Saul M. Kassin, False Confessions: Causes,

Consequences, and Implications for Reform, 1 SAGE

J. 112 (2014). “These outcomes occur because the suspect is exposed to highly suggestive interrogation tactics and acquiesces [to] escape from a stressful situation.” Brief Amici Curiae, supra, at 27-28. Worse, false

confessions are more likely to occur in “serious cases,

especially homicides.” Id. at 30 (citing Brandon L.

Garrett, The Substance of False Confessions, 62 Stan.

L. Rev. 1051, 1065 (2010)).

False confessions undermine the trustworthiness

of confessions in general and erode public confidence

in our justice system. See Michigan v. Tucker, 417

U.S. 433, 448 (1974) (“When involuntary statements

or the right against compulsory self-incrimination are

involved,” courts risk relying “on untrustworthy evidence”). And no one could dispute that “uniformity

among federal courts is important” for standards governing Miranda. Thompson v. Keohane, 516 U.S. 99,

106 (1995). The Court’s review is warranted.

II. ROOT’S OTHER CLAIMS ARE WORTHY OF REVIEW.

The State maintains that Root’s second question

is unfit for review because it was unexhausted and “is

entirely fact based.” BIO 21. Neither is correct. Root

challenged the voluntariness of her confession

throughout the state and federal proceedings. See supra at 7-8. And Root’s second question asks whether

the Sixth Circuit correctly applied Stone v. Powell to

conclude that Root’s Fourth and Fifth Amendment

claims were “inextricably intertwined.” Pet. i. At a

minimum, the Court should remand for consideration

of Root’s Fifth Amendment claim. See Cardwell v.

Taylor, 461 U.S. 571, 573 (1983) (remanding for reconsideration on voluntariness); Withrow v. Williams,

507 U.S. 680, 688 (1993) (Stone does not bar habeas

review of a “claim that [a] conviction rests on statements obtained in violation of the safeguards mandated by Miranda”).

Finally, Root’s third question presented is undoubtedly important. In Carpenter, the Court

reserved the question whether “real-time CSLI or

‘tower dumps’” violate the Fourth Amendment when

accessed without a warrant. Carpenter v. United

States, 585 U.S. 296, 316 (2018). Courts are intractably divided over how to apply Carpenter when officers

obtain—as they did here—troves of cell-tower data detailing the movements of any person in a particular

area at a particular time. See United States v. Chatrie,

136 F.4th 100 (4th Cir. 2025) (affirming the use of this

technique in a one-sentence opinion en banc, spawning nine separate opinions), petition for cert. filed, No.

25-112 (U.S. July 28, 2025); United States v. Smith,

110 F.4th 817 (5th Cir. 2024) (holding geofence warrants are “general warrants” categorically prohibited

by the Fourth Amendment), petition for cert. filed, No.

24-7237 (U.S. May 19, 2025).

CONCLUSION

The Court should grant the petition.

Respectfully submitted.