                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1180n.06

                                           No. 11-2256

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


BRIAN MILLER,                                            )
                                                                               FILED
                                                                           Nov 14, 2012
                                                         )
                                                                     DEBORAH S. HUNT, Clerk
          Petitioner-Appellee,                           )
                                                         )
v.                                                       )    On Appeal from the United States
                                                         )    District Court for the Eastern
BLAINE LAFLER, WARDEN,                                   )    District of Michigan
                                                         )
          Respondent-Appellant.                          )




Before:          BOGGS and CLAY, Circuit Judges; and STAFFORD, District Judge.*

                 BOGGS, Circuit Judge. In May 2008, a Michigan jury convicted Brian Miller of

first-degree home invasion and second-degree criminal sexual conduct. The state trial judge held

a sentencing hearing and imposed consecutive terms of 50 to 240 months and 24 to 180 months of

imprisonment for the respective charges. Miller asserted his innocence throughout the hearing, but

the judge urged Miller to admit responsibility for the sake of his family and that of the victim. The

judge criticized Miller when he failed to do so. Miller moved for resentencing, arguing among other

things that the trial court based its sentence in part on Miller’s assertion of innocence. The trial

judge denied the motion, again commenting on Miller’s failure to accept responsibility.




          *
          The Honorable William H. Stafford of the United States District Court for the Northern
District of Florida, sitting by designation.
No. 11-2256
Miller v. Lafler

       Miller appealed to the Michigan Court of Appeals, which concluded that the trial court did

not base its sentencing decision on Miller’s refusal to admit guilt. The Michigan Supreme Court

denied Miller’s application for review. After his direct appeals, Miller filed a pro se petition for a

writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The

district court granted Miller’s petition in part, finding that the trial court violated Miller’s Fifth

Amendment rights by basing its decision to make Miller’s sentences consecutive on an adverse

inference drawn from Miller’s repeated assertions of innocence.

       The district court granted relief under 28 U.S.C. § 2254(d)(1) and (d)(2), holding that the

Michigan Court of Appeals unreasonably applied clearly established federal law as determined by

the Supreme Court and unreasonably determined the facts in light of the evidence. However, we find

no law, clearly established or unreasonably applied, that would support Miller’s habeas claim. Nor

do we find a factual issue that would warrant consideration under § 2254(d)(2). For the reasons that

follow, we reverse the district court and deny Miller’s petition for habeas corpus.

                                                  I

       The facts of this case arise from an August 2007 event involving Miller and a female who

was a neighbor to Miller and a friend of Miller’s sister. The victim awoke early in the morning to

find Miller, donning a mask, in her bedroom doorway. Miller rushed the victim, tore off her shirt,

fondled her, and attempted to rape her. He stopped after the victim identified Miller by his voice.

The two talked for some time afterward. Miller admitted to breaking into the victim’s home through

a laundry-room window and to being under the influence of alcohol and drugs. The victim ordered

Miller to leave after he made another unwanted sexual advance. Before leaving, Miller threateningly

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Miller v. Lafler

ordered the victim not to report the incident. Notwithstanding the threat, the victim phoned the

police, who immediately arrested Miller. He pled not guilty, but was convicted after a four-day trial.

       At sentencing, the trial judge heard from both Miller and his attorney. Speaking first,

Miller’s attorney portrayed him as a young man with a rough background who posed no threat to the

community and who was prepared to accept the consequences of his actions. After taking statements

from the victim and the prosecutor, the trial judge permitted Miller to allocute. It was at this point

that Miller began to assert his innocence:

       I’m -- I’m not a . . . whatever she is saying. This never happened. . . . And you know
       there’s just, I don’t know what’s going on. You know everybody’s blaming it on
       me. But you know, I’m the one with the job, I had a job. I got my diploma. I’m
       special ed. You know, . . . I don’t know how to say it, you know, to you right - - right
       now, because it’s just going through my head so fast. I don’t know what to tell you.
       And it’s just -- just so hard on me.

Later, he appears to indicate that the victim picked on him as a child:

       You, know [sic] I’ve been teased as a kid by -- by -- by the defendant, you know, a
       lot. You know when I was growing up, that’s -- that’s hard, you know, going through
       school. Oh, you’re in special ed, ha -- ha -- ha, you know that, you know. You’re a
       retard, you know? How - - how do you feel, you know, about all that.

Responding to Miller’s allocution, the trial court stated that, based upon what it had seen during the

trial, it believed Miller was a danger to the community. After expressing its views on the weight of

the evidence, the court noted its concern with the grief that Miller’s denial of responsibility caused

Miller’s family:

       Now your family, I don’t know what they think. . . . Ah, you know, obviously they
       don’t think you did it. They believe you. Ah, you know they believe this young lady
       is just making it up because she thinks, you know, she doesn’t like you because
       you’re special ed. . . . But quite frankly, I don’t know that they do you any favor by
       accepting that. I think they would probably be better off if they told you point blank

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        they think you did this, and you shouldn’t be conducting yourself in this way, and
        they want to get you help. That’s what I think they should be saying to you based on
        what I saw here. ‘Cause I -- I have no doubt in my mind you did it, ah, there’s no
        doubt about it, you did this.


The trial judge went on to admonish Miller personally, stating,

        Your family is going to suffer the rest of their lives because they’re going to think
        that you went to prison when you shouldn’t have. And they’re going to blame this
        young lady for the fact that you went to prison. Um, and you’re never going to get
        any help. And you’re going to live to do it again. And then the next time you’ll go
        away for the rest of your life. That’s the bad part about it. And to be honest with
        you, if you wanted to do your family a favor, you would turn to them and you would
        admit [the crime] to them. You would say, look I absolutely did this. Because they
        need to know that you did it, so they can get you help.

The court doubted that Miller would actually admit his guilt:

        But you’re not going to do that. You’re gonna to do [sic] like every other defendant
        I’ve sent to prison. You’re gonna deny it all the way to prison. And then they’re
        going to spend money on appellate lawyers, and all this kind of stuff for you, ‘cause
        they think you got railroaded.

After the trial judge criticized Miller’s failure to accept responsibility for a second time, Miller and

the judge engaged in the following exchange:

        THE COURT: Tell them what you did, so that they can go on with their lives and
        not think that you’ve been railroaded. But you’re not gonna do it. So everyone
        continues to suffer.

        MR. MILLER: Because I didn’t do it.

        THE COURT: I’m sorry?

        MR. MILLER: Because I didn’t do it.

        THE COURT: That’s what I expected you to say.



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        MR. MILLER: You -- you got your own story, she’s got her own story, I got my own
        story.

The trial court proceeded to impose consecutive sentences at the high end of the state sentencing

guidelines. In explaining its reasoning, the court stated,

        I think based on the discussion that I’ve had here, I’m convinced that you’ve not
        learned anything. That you have no remorse for what you’ve done. And -- and
        because of that, I am going to exercise my discretion to run consecutive instead of
        concurrent. Because I think that, ah, I need to remove you from society as long as I
        possibly can. To protect the victim, number one. Ah, but also to hopefully hope [sic]
        that you’ll mature, ah, to an extent that when you do get out that you don’t repeat this
        kind of behavior again.

        Miller moved for resentencing on a number of grounds, including that the trial court based

its sentence on Miller’s continued assertion of innocence. The trial court rejected this argument.

It noted that any negative references to Miller’s failure to accept responsibility were merely

commentary on how “unfair [it was] for him to allow this relationship that existed between his sister

and [the victim] to sour when he knows that [he committed the crime] and all the evidence shows

that he did it,” but that the court “would not have taken that into consideration in [Miller’s]

sentencing.”

        The Michigan Court of Appeals affirmed Miller’s sentence. People v. Miller, No. 286771,

2010 WL 446050, at *3 (Mich. Ct. App. Feb. 9, 2010). The state appellate court, citing its own case

law, recognized that improper consideration of a defendant’s refusal to admit guilt violates the Fifth

Amendment. Ibid. (citing People v. Conley, 715 N.W.2d 377 (Mich. Ct. App. 2006) (which, in turn,

cites Sixth Circuit precedent)). However, the appellate court found no such violation in Miller’s

case, pointing out that the trial court did not threaten to punish Miller if he failed to admit guilt and


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Miller v. Lafler

characterizing the judge’s comments above as “discuss[ion] [of] the fact that defendant’s failure to

be honest with his sister and family caused the breakup of a longtime friendship . . . .” Ibid. The

Michigan Supreme Court denied Miller’s application for leave to appeal in a summary order. People

v. Miller, 783 N.W.2d 373 (Mich. 2010).

       The district court below granted in part Miller’s petition for a writ of habeas corpus, finding

that the Michigan Court of Appeals unreasonably applied clearly established federal law and

unreasonably determined the facts in upholding Miller’s sentence. Miller v. Lafler, No. 2:10-CV-

14955, 2011 WL 4062410, at *7 (E.D. Mich. Sept. 13, 2011). Relying heavily upon our opinion in

Ketchings v. Jackson, 365 F.3d 509 (6th Cir. 2004), the court below found that the state trial court

“did not merely comment upon petitioner’s lack of remorse, ‘but referred negatively directly and

indirectly to’ petitioner’s ‘continued assertion of his belief in his innocence.’” Ibid. (quoting

Ketchings, 365 F.3d at 513). Warden Blaine Lafler appeals the district court’s decision.

                                              II

       Both parties agree that the deferential standard of the Antiterrorism and Effective Death

Penalty Act applies to this case. Under AEDPA, we may not grant a writ of habeas corpus on a

claim that a state court has resolved on the merits unless the decision:

       (1) . . . 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) . . . 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). Meeting either of these standards is difficult. “As amended by AEDPA, §

2254(d) stops short of imposing a complete bar on federal court relitigation of claims already

                                                   -6-
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Miller v. Lafler

rejected in state proceedings.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Under AEDPA,

federal courts retain authority to issue a writ only “in cases where there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents.

[This authority] goes no farther.” Ibid. We review the district court’s application of AEDPA de

novo. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir. 2011) (en banc).

                                                  A

       To establish a successful claim for relief under paragraph (d)(1), a petitioner must show that

the state court unreasonably applied clearly established federal law. For the purposes of AEDPA,

a law is “clearly established” if it is enshrined in “the holdings, as opposed to the dicta, of [the

Supreme Court’s] decisions as of the time of the relevant state-court decision.” Williams v. Taylor,

529 U.S. 362, 412 (2000). While AEDPA does not require us “to wait for some nearly identical

factual pattern before a legal rule must be applied,” Panetti v. Quarterman, 551 U.S. 930, 953 (2007)

(internal quotation marks omitted), the legal rule asserted must be one “squarely established” by the

Supreme Court. Knowles v. Mirzayance, 556 U.S. 111, 122 (2009).

       Even then, the state court’s ruling must involve “an unreasonable application of” clearly

established federal law.1 “Unreasonable” in this context does not mean merely incorrect, but rather

means “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003).              “A state

court’s determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded



       1
         Miller does not assert that the Michigan Court of Appeals made a decision “contrary to”
clearly established federal law, and we therefore limit our analysis to the “unreasonable application”
standard.

                                                 -7-
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Miller v. Lafler

jurists could disagree’ on the correctness of the state court’s decision.” Harrington, 131 S. Ct. at 786

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Under this standard, “even a strong

case for relief does not mean the state court’s contrary conclusion was unreasonable.” Ibid. Rather,

before we may grant the writ, “a state prisoner must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for fairminded disagreement.”

Id. at 786–87.

                                                   B

        Miller also asks us to review his case under § 2254(d)(2) for an unreasonable factual

determination by the state court. He correctly points out that the district court cited both paragraphs

(d)(1) and (d)(2) in its opinion below. However, in our de novo review of the district court’s

AEDPA discussion, we find no issue under paragraph (d)(2). The question in this case is purely a

legal one: Did the Michigan Court of Appeals unreasonably apply clearly established federal law,

as determined by the Supreme Court, in holding that the trial judge’s comments did not violate

Miller’s Fifth Amendment rights? The district court seemingly had the same view, as it devoted the

totality of its analysis to determining the applicable rule of law. Miller v. Lafler, 2011 WL 4062410,

at *6–7. In only two sentences out of the entire opinion does the district court even make reference

to § 2254(d)(2). Ibid. These passing references cannot create a (d)(2) issue in what is clearly a

(d)(1) case. We therefore limit our analysis to § 2254(d)(1).

                                                  III



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       Miller argues that the state trial court violated his Fifth Amendment right against self-

incrimination by punishing him for maintaining his innocence at sentencing, and that the Michigan

Court of Appeals unreasonably applied clearly establish federal law in upholding his sentence.

Miller points to Estelle v. Smith, 451 U.S. 454 (1981), and Mitchell v. United States, 526 U.S. 314

(1999), to substantiate his reading of the Fifth Amendment. He further asserts that this circuit has

recognized such a reading of Estelle and Mitchell, citing our precedent in Ketchings v. Jackson, 365

F.3d 509 (6th Cir. 2004). While Miller’s reading of the applicable case law is certainly a plausible

synthesis, the Supreme Court has not squarely addressed the legal proposition advanced here. To

the extent that he relies on clearly established federal law, Miller’s proposed application is subject

to fairminded disagreement.

                                                  A

       It is axiomatic that the Fifth Amendment protects a defendant’s right “to remain silent unless

he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such

silence.” Estelle, 451 U.S. at 468 (internal quotation marks omitted). The privilege applies so long

as a defendant’s compelled testimony could result in further incrimination, Mitchell, 526 U.S. at

326, and ends when such adverse consequences are removed, whether through proper immunization,

Kastigar v. United States, 406 U.S. 441, 448 (1972), or voluntary waiver, Mitchell, 526 U.S. at

322–23. This principle applies with equal force during sentencing, as “a defendant may have a

legitimate fear of adverse consequences from further testimony” where a sentence has not yet been

imposed. Id. at 326.



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       While the Court has spoken clearly on the principle to which we must adhere, it has been less

specific on how we are to put it into practice. In Mitchell, the Court held that a sentencing court may

not make adverse inferences from a defendant’s silence as to the facts of the offense. Id. at 330. The

defendant in Mitchell pled guilty to a number of drug offenses, but did not admit to trafficking a

specific amount of narcotics. At her sentencing hearing, the government produced witnesses to

testify as to the amount of drugs involved (which in turn would determine her mandatory minimum

sentence). Though her lawyer cross-examined the government’s witnesses, the defendant herself did

not testify. In finding credible the testimony of the government witnesses, the district court noted

that it held the defendant’s silence against her, concluding that her plea waived her right to remain

silent. Id. at 319. The Supreme Court rejected the district court’s legal reasoning and held that the

court’s adverse factual inference violated the Fifth Amendment by effectively relieving the

government of its burden to prove the facts of the crime relevant to sentencing. Id. at 330. In so

doing, the district court “enlist[ed] the defendant” into the government’s case against her “at the

expense of the self-incrimination privilege.” Ibid.

       The majority went on to qualify this broad proposition: “Whether silence bears upon the

determination of a lack of remorse, or upon acceptance of responsibility for purposes of [a]

downward adjustment . . . is a separate question. It is not before us, and we express no view on it.”

Ibid. Sensing the confusion that this caveat would cause, Justice Scalia, writing for four dissenting

justices, warned that lower courts would have to deal with “clutter swept under the rug” in

addressing “determinations of acceptance of responsibility, repentance, character, and future

dangerousness, . . . that is to say, . . . the bulk of what most sentencing is all about.” Id. at 340

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(Scalia, J., dissenting). The dissent questioned how lower courts would be able to police effectively

the line between inferences as to the facts of the crime and inferences as to the defendant’s lack of

remorse, uncooperativeness, and the like. Ibid. Finally, the dissenters predicted “a decent period

of confusion in the lower courts,” ibid., a prediction that, as discussed below, appears to have come

true.

                                                   B

        Miller asserts that the state trial court violated Mitchell by holding his repeated assertions of

innocence against him. However, Miller’s claim does not fit within the narrow holding of Mitchell.

For one, Mitchell addressed negative factual inferences as to the circumstances and details of the

crime based upon a defendant’s silence. The adverse inference made in Mitchell pertained to an

unproven, unadmitted fact of the crime, the truth of which would determine the applicability of a

mandatory sentencing provision. Here, the Michigan trial court stated, and the appellate court

agreed, that any negative inference drawn from Miller’s allocution applied to his perceived level of

remorsefulness and ability to rehabilitate, both of which are sentencing factors that are properly

assessed for the purpose of applying a discretionary consecutive-sentence provision. Furthermore,

any negative inference made would have been based on Miller’s statements, as opposed to his mere

silence. This voluntary act not only distinguishes our case from Mitchell, but also may have waived

Miller’s Fifth Amendment privilege as to the content of his statements.2


        2
         Since Miller cannot clear the hurdle of AEDPA deference, we need not address this issue.
It is worth noting, however, that at least one of our sister circuits has endorsed this position, United
States v. Whitten, 610 F.3d 168, 199–200 (2d Cir. 2010), which makes sense in light of the principle
of limited waiver, see United States v. Robinson, 485 U.S. 25, 34 (1988).

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        Though it is arguable that an inference such as the one allegedly made here violates the spirit

of Mitchell, this is not enough for the purposes of AEDPA. We cannot grant habeas on a claim that

does not rest on a violation of “clearly established Federal law,” 28 U.S.C. § 2254(d)(1), and a rule

of law is not clearly established unless the Supreme Court has “squarely established” it. Mirzayance,

556 U.S. at 122. Far from squarely establishing the rule pressed here, the Supreme Court “expressed

no view” on “[w]hether silence bears upon the determination of a lack of remorse, or upon

acceptance of responsibility.” Mitchell, 526 U.S. at 330. This is fatal to Miller’s case.

                                                   C

        To the extent that Miller bases his claim on the clearly established rule of Mitchell, he must

also show that the state court’s application of this rule is “so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington, 131 S. Ct. at 786–87. Miller has failed to do so. Far from being “well

understood and comprehended,” Mitchell has divided opinions not only within this circuit but also

among our sister circuits.

                                                   1

        This circuit has previously addressed Mitchell on three separate occasions. The first of these

is Ketchings v. Jackson, 365 F.3d 509 (6th Cir. 2004). Miller asserts that Ketchings is both binding

upon this panel and dispositive of his case. On his first proposition, Miller is flatly wrong. The

Supreme Court has warned the lower courts recently and repeatedly “circuit precedent does not

constitute ‘clearly established Federal law, as determined by the Supreme Court,’” and therefore



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“cannot form the basis for habeas relief under AEDPA.” Parker v. Matthews, 132 S. Ct. 2148, 2155

(2012) (citations omitted); see also Renico v. Lett, 130 S. Ct. 1855, 1865–66 (2010).

        Furthermore, Ketchings, though similar to the case before us, is ultimately inapposite. The

defendant in Ketchings sought resentencing under the theory that the state trial judge made an

adverse inference from his failure to admit guilt. Similar to our case, the state court in Ketchings

denied the defendant’s claim on appeal on the ground that any negative comments made by the trial

judge merely went to the defendant’s lack of remorse and rehabilitative potential. Our panel upheld

the district court’s grant of a writ, citing Mitchell. Id. at 512–14.

        Were this the end of the matter, Miller might have a strong argument. Ketchings, however,

is distinguishable on two key grounds. The first of these is purely factual: the defendant in Ketchings

clearly did express remorse during his allocution. Id. at 513–14. In other words, the state court’s

reason for handing down a harsher sentence reeked of pretext—one could not reasonably infer a lack

of remorse from the defendant’s failure to admit guilt, as he expressed sympathy for the family of

the victim. The same cannot be said in Miller’s case.

        The second distinction is of a more legal nature: Ketchings does not specify whether relief

issued due to an unreasonable application of clearly established federal law (§ 2254(d)(1)) or an

unreasonable determination of fact (§ 2254(d)(2)). Id. at 514. While this is a seemingly technical

point, Ketchings should not influence our (d)(1) analysis unless it is in fact a (d)(1) ruling. Indeed,

the case reads very much like a (d)(2), unreasonable-determination-of-fact analysis. The Ketchings

panel focused heavily on examining the facts of the case, and the fate of the claim turned on the fact

that, contrary to the trial court’s inference, Ketchings expressed remorse for the pain to the victim’s

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family. Id. at 512–14. This suggests that the panel was concerned with the state court’s

determination of fact as opposed to its application of law. Consistent with this reading is the fact

that the panel spent only one paragraph parsing what was (and still is) a confusing body of Fifth

Amendment law. Id. at 512. If the panel were conducting a (d)(1) analysis, it would have certainly

spent more time with the applicable case law. We therefore find Ketchings distinguishable and

unpersuasive.

       The next case in this series is United States v. Kennedy, 499 F.3d 547 (6th Cir. 2007), which

Warden Lafler urges us to adopt. The defendant, convicted of possessing child pornography, argued

that the district court violated his Fifth Amendment rights by making an adverse inference against

him for his failure to undergo a statutorily mandated psychosexual evaluation. Id. at 549. In

rejecting this argument, the panel highlighted the narrowness of Mitchell, stating that the defendant’s

case “implicate[d] Justice Scalia’s ‘clutter swept under the rug,’ as the district court plainly

considered [the defendant’s] refusal to complete testing in determining his propensity for future

dangerousness, rather than in determining facts of the offense.” Id. at 552. Though Kennedy quite

clearly sticks closer to the central holding of Mitchell, we need not address its substantive

applicability to this case. For the purposes of AEDPA, it is sufficient to mark Kennedy as a waypoint

in navigating the case law.

       Though uncited by either party, our recent split-panel decision in Woodall v. Simpson, 685

F.3d 574 (6th Cir. 2012), warrants attention. The Woodall majority granted habeas in a state death-

penalty case, finding that the trial judge’s failure to give a no-adverse-inference instruction during

the sentencing phase of the trial violated the defendant’s Fifth Amendment rights. That this case

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ultimately concerns the right to a prophylactic instruction under Carter v. Kentucky, 450 U.S. 288

(1981), as opposed to the scope of Mitchell’s no-adverse-inference rule is enough to distinguish it.

However, the majority reached its conclusion as to the necessity of a Carter instruction by making

an intermediate holding on the scope of Mitchell, that is, that the perceived breadth of the

no-adverse-inference rule warranted a prophylactic instruction in order to protect the right. Woodall,

685 F.3d at 578–79. This intermediate holding does not bind us, but it does further demonstrate the

lack of clarity on the scope of Mitchell.

                                                  2

       We next address the law of our sister circuits. As noted previously, Mitchell has divided

courts across the country. See United States v. Caro, 597 F.3d 608, 629 (4th Cir. 2010) (collecting

conflicting cases on Mitchell’s applicability to the nonstatutory sentencing factor of remorse). Much

like our own precedent, the case law of our sister circuits breaks down into two broad groups: those

cases that expand Mitchell’s underlying principle to related but ultimately different legal questions,

and those cases that take Mitchell’s limitation at face value and restrict it to its express rule of

decision.

       The Fourth Circuit in Caro took the first of these approaches, observing that because

“remorse implies consciousness of guilt, speaking words of remorse for conduct prevents a defendant

from later denying the conduct,” and that “Estelle and Mitchell together suggest that the Fifth

Amendment may well prohibit considering a defendant’s silence regarding the non-statutory

aggravating factor of lack of remorse.” Caro, 597 F.3d at 629 n.16, 630. There, the court found that

the prosecutor improperly suggested that the jury find the defendant’s failure to express remorse as

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evidence of an aggravating factor warranting the imposition of the death penalty. Id. at 627, 630–31.

Though it is significant that the Fourth Circuit construed Mitchell broadly, Caro is set in the context

of a jury trial during the penalty phase of a death-eligible case. No other circuit has joined the Fourth

Circuit in this holding.3 Two federal district courts have expressed similar views, United States v.

Roman, 371 F. Supp. 2d 36, 50 (D.P.R. 2005), and United States v. Cooper, 91 F. Supp. 2d 90,

112–13 (D.D.C. 2000), and the District of Columbia Circuit has expressed concern about the

constitutionality of adverse inferences made from a defendant’s failure to cooperate with federal

probation officer during a presentence investigation when such cooperation may disclose further

illicit activity, United States v. Saani, 650 F.3d 761, 770–71 (D.C. Cir. 2011).

        Conversely, the Seventh Circuit in Burr v. Pollard, 546 F.3d 828 (7th Cir. 2008), held that

silence can be consistent not only with the exercise of one’s Fifth Amendment right, “but also with

a lack of remorse. The latter is properly considered at sentencing because it speaks to traditional

penological interests such as rehabilitation (an indifferent criminal isn’t ready to reform) and

deterrence (a remorseful criminal is less likely to return to his old ways).” Id. at 832. The Fifth

Circuit has similarly limited Mitchell’s prohibition to adverse inferences as to the facts of the

offense. United States v. Ronquillo, 508 F.3d 744, 749 (5th Cir. 2007). Additionally, three of our



        3
         Caro cites a Third Circuit opinion, Lesko v. Lehman, 925 F.2d 1527 (3d Cir. 1991), as
holding that a capital defendant’s failure to apologize may not be used as evidence of a lack of
remorse. Caro, 597 F.3d at 629. However, Lesko addresses comments made by a prosecutor at
sentencing that criticized the defendant’s failure to testify during the guilt phase of the trial. Lesko,
925 F.2d at 1540–41. The panel did not address—and indeed expressly refused to address—the
constitutionality of negative inferences as to defendant’s demeanor since the prosecution’s comments
so clearly violated Griffin v. California, 380 U.S. 609 (1965). Lesko, 925 F.2d at 1544–45.

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sister circuits have balked at and expressed apparent skepticism toward expanding Mitchell’s no-

adverse-inference rule beyond its clear holding. United States v. Seward, 583 F.3d 1045, 1048–49

(8th Cir. 2009); Lee v. Crouse, 451 F.3d 598, 605–06 (10th Cir. 2006); United States v.

Romero–Rendon, 220 F.3d 1159, 1163 n.4 (9th Cir. 2000).

                                                  3

       Both the express language and the majority circuit interpretation of Mitchell favor a narrow

application of the no-adverse-inference rule. Furthermore, the courts that have favored an expansive

view of Mitchell have done so in contexts where the defendant remained silent. Woodall, 685 F.3d

at 579 (holding that a defendant who did not testify during the penalty phase of his death-eligible

trial was entitled to a Carter instruction); Caro, 597 F.3d at 630 (observing that consideration of a

defendant’s silence to prove lack of remorse may violate the Fifth Amendment); Roman, 371 F.

Supp. 2d at 51 (same); Cooper, 91 F. Supp. 2d at 112–13 (disallowing evidence that defendant

remained silent as to his blameworthiness in post-arrest statements, but allowing evidence that

defendant expressed pride in killing the victim to witnesses). The state trial judge here did not hold

Miller’s silence against him; rather, any adverse inference drawn against Miller was based upon the

content of his voluntarily given allocution. It is accordingly doubtful that Miller would have a

meritorious claim even under an expansive view of Mitchell. Cf. Whitten, 610 F.3d at 199–200

(holding that the defendant’s voluntary allocution constituted a limited waiver of the Fifth

Amendment).

       However, the panel need not decide the correct interpretation of Mitchell for the purposes of

this case. It is enough that fairminded jurists can and do disagree on the applicable scope of

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No. 11-2256
Miller v. Lafler

Mitchell. Accordingly, we cannot say that the Michigan Court of Appeals unreasonably applied the

rule from that case. To the extent that Miller asks us to expand Mitchell, he asks to grant relief based

upon a rule that is not “clearly established Federal law, as determined by the Supreme Court of the

United States.” Regardless of which route we take, the result is the same: Miller is not entitled to

habeas relief under § 2254(d)(1).

                                                   IV

          In conclusion, the district court erred in granting habeas. Fairminded jurists disagree as to

the scope and application of Mitchell’s no-adverse-inference rule, and we therefore cannot say that

the Michigan Court of Appeals unreasonably applied it in this case. To the extent that Miller asks

us to expand Mitchell, his claim does not rest upon “clearly established Federal law.” His argument

under § 2254(d)(1) accordingly fails. We also find that, contrary to his assertion before this court,

Miller’s claim does not raise an issue under § 2254(d)(2). As Miller has failed to demonstrate that

he is entitled to relief under § 2254, we REVERSE the district court and DENY the writ of habeas

corpus.




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