                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0409p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                            Petitioner-Appellant, -
 VAN CHESTER THOMPKINS, JR.,
                                                     -
                                                     -
                                                     -
                                                         No. 06-2435
         v.
                                                     ,
                                                      >
 MARY BERGHUIS, Warden,                              -
                            Respondent-Appellee. -
                                                    N
                     Appeal from the United States District Court
                    for the Eastern District of Michigan at Detroit.
                   No. 05-70188—Patrick J. Duggan, District Judge.
                                    Argued: February 1, 2008
                             Decided and Filed: November 19, 2008
                    Before: MOORE, CLAY, and ROGERS, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Elizabeth L. Jacobs, LAW OFFICE, Detroit, Michigan, for Appellant. Janet A.
VanCleve, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellee. ON BRIEF: Elizabeth L. Jacobs, LAW OFFICE, Detroit, Michigan, for Appellant. Brad
H. Beaver, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellee.
                                       _________________
                                           OPINION
                                       _________________
        KAREN NELSON MOORE, Circuit Judge. Petitioner-Appellant Van Chester Thompkins,
Jr. (“Thompkins”) appeals the district court’s denial of his petition for a writ of habeas corpus.
Following a jury trial in 2002 in Michigan state court, Thompkins was convicted of first-degree
murder, assault with intent to commit murder, and several firearms-related charges. After
exhausting the state appeals process, Thompkins filed in the United States District Court for the
Eastern District of Michigan a petition for a writ of habeas corpus, which the district court denied.
The district court certified three claims for appeal: (1) whether Thompkins’s confession was
obtained in violation of the Fifth Amendment when the police officers questioned Thompkins for
nearly three hours, the officers described the interview as “very, very one-sided,” and the officers
described Thompkins as “not verbally communicative” and as having “shared very limited verbal
responses” while “[l]argely . . . remain[ing] silent”; (2) whether Thompkins’s right to due process
was violated when the prosecution offered evidence of accomplice-witness Eric Purifoy’s jury


                                                 1
No. 06-2435                Thompkins v. Berghuis                                                 Page 2


verdict and guilty plea conviction on charges stemming out of the same incident giving rise to
Thompkins’s charges; and (3) whether Thompkins was denied effective assistance of counsel when
his counsel failed to request that the trial court instruct the jury that it could consider the evidence
relating to the jury verdict and guilty-plea conviction of accomplice-witness Purifoy only in
evaluating Purifoy’s credibility and not as substantive evidence of Thompkins’s guilt.
        For the reasons discussed below, we AFFIRM the district court’s denial of Thompkins’s
petition for a writ of habeas corpus as to his claim of prosecutorial misconduct, but we REVERSE
the judgment of the district court denying relief as to his Fifth Amendment and ineffective-
assistance-of-counsel claims and REMAND the case with instructions that the district court order
that Thompkins be released from state custody unless the State of Michigan commences a new trial
within 180 days of the final federal-court judgment in this case.
                                         I. BACKGROUND
        On January 10, 2000, a shooting occurred around 9:00 p.m. in a strip mall parking lot in
Southfield, Michigan. Samuel Morris (“Morris”) died from multiple gunshot wounds, while his
friend Frederick France (“France”) survived despite being shot several times. At Thompkins’s trial,
France testified that he and Morris were driving through the mall parking lot when a group of several
men walked in front of their car and began staring at them. Joint Appendix (“J.A.”) at 264-65 (Trial
Tr. 5/13/2002 at 197-98). France testified that he and Morris got out of their car and that France and
Thompkins exchanged words as Thompkins and the others in his group approached a white and blue
van. J.A. at 270-73 (Trial Tr. 5/13/2002 at 204-07). Morris and France reentered their car and
began driving away, but the van soon pulled up alongside them so that the passenger-side window
of the van was adjacent to the driver-side window of Morris and France’s car. J.A. at 273-81 (Trial
Tr. 5/13/2002 at 207-215). France testified that he had no doubt that Thompkins was seated in the
passenger seat of the van and that Thompkins said “What you say, Big Dog” immediately before
drawing a gun and firing several shots into Morris and France’s car. J.A. at 280-81 (Trial Tr.
5/13/2002 at 214-15). The next day, while France was in the hospital, two police officers showed
him a photograph taken by a security camera inside Lou’s Deli, a store at the mall where the
shooting occurred, and France identified three individuals as being respectively the shooter, the
driver, and another passenger in the van. J.A. at 287-89 (Trial Tr. 5/13/2002 at 230, 232, 237).
France identified Thompkins as the shooter. J.A. at 288 (Trial Tr. 5/13/2002 at 232).
        The police focused their investigation into the shooting on three men, Thompkins, Eric
Purifoy (“Purifoy”), and Myzell Woodward (“Woodward”). Woodward, who contacted the police
shortly after the incident, apparently was never charged. Pet’r Br. at 6. Purifoy turned himself in
to the police, and he was tried in August 2000 on the same charges as would later be brought against
Thompkins. J.A. at 289 (Trial Tr. 5/13/2002 at 237); J.A. at 345-47 (Trial Tr. 5/16/2002 at 85-87).
Purifoy was acquitted of the murder and assault charges, convicted of carrying a concealed weapon,
and after his trial Purifoy pleaded guilty to three further firearm-related counts. J.A. at 345-47 (Trial
Tr. 5/16/2002 at 85-87).
        Thompkins was not found until over a year after the shooting when he was arrested along
with three other men near Columbus, Ohio, on February 19, 2001. J.A. at 319-20, 331-32 (Trial Tr.
5/16/2002 at 35-36, 55-56). Thompkins attempted to escape while the officers were handcuffing
the others and, when recaptured, gave the officers various false pieces of identification and insisted
that his name was Detniuan Isiah Reed. J.A. at 324-25, 328-29 (Trial Tr. 5/16/2002 at 42-43, 52-
53). When Thompkins was fingerprinted at the Franklin County (Ohio) jail, the results revealed his
true identity as Van Chester Thompkins, Jr. J.A. at 331-32 (Trial Tr. 5/16/2002 at 55-56).
       On February 22, 2001, Detective Christopher Helgert (“Helgert”) from the Southfield
(Michigan) Police Department interrogated Thompkins at the jail in Ohio. J.A. at 149 (Op. & Order
No. 06-2435               Thompkins v. Berghuis                                                 Page 3


Denying Mot. to Suppress at 1). At a hearing in October 2001 regarding Thompkins’s motion to
suppress statements that he made during the February 2001 interrogation, Helgert testified that he
and his partner interviewed Thompkins for approximately three hours. J.A. at 213-14 (Supp. Hr’g
Tr. at 78-79). Helgert read Thompkins a form that advised him of his Miranda rights and got
Thompkins to confirm orally his understanding of those rights, but Thompkins refused to sign the
form acknowledging that the officers had read him his rights. J.A. at 214-15, 220-23 (Supp. Hr’g
Tr. at 79-80, 85-88). Helgert described the interview as “very, very one-sided,” J.A. at 217 (Supp.
Hr’g Tr. at 82), and as “nearly a monologue,” J.A. at 227 (Supp. Hr’g Tr. at 92). Helgert described
Thompkins as “so uncommunicative,” J.A. at 217 (Supp. Hr’g Tr. at 82), as “not verbally
communicative,” J.A. at 227 (Supp. Hr’g Tr. at 92), and remarked that “[l]argely, he remained
silent,” J.A. at 229 (Supp. Hr’g Tr. at 94). Helgert also stated that “Mr. Thompkins shared very
limited verbal responses with us,” J.A. at 217 (Supp. Hr’g Tr. at 82), and that Thompkins “talk[ed]
with us very sporadically,” J.A. at 216 (Supp. Hr’g Tr. at 81). Asked whether Thompkins had
“consistently exercised his right to remain substantively silent for at least two hours and forty-five
(45) minutes,” Helgert replied “Yes, that’s right.” J.A. at 232 (Supp. Hr’g Tr. at 97). On re-direct,
Helgert stated that occasionally Thompkins gave both verbal and non-verbal responses to the
questions and that he understood Thompkins’s “eye contact,” “a nod of the head,” and “look[ing]
up” as engaging in limited conversation. J.A. at 236-37 (Supp. Hr’g Tr. at 101-02). Helgert also
testified that “I don’t know” was a “quite prevalent” response to his questions, as well that
“[s]ometimes [Thompkins’s response] would be a word or two. A ‘yeah,’ or a ‘no,’ or ‘I don’t
know.’” J.A. at 233, 236 (Supp. Hr’g Tr. at 98, 101).
        After two hours and forty-five minutes of the “very, very one-sided” interview, Helgert “tried
to take a different tac[k], I guess what I call a spiritual tac[k],” and he asked Thompkins “whether
or not he believed in God.” J.A. at 217 (Supp. Hr’g Tr. at 82). Helgert testified that Thompkins
       made eye-contact with me for one of the few times that he did for the interview. I
       saw his eyes well up with tears. He answered me orally and said, “Yes.”
              I asked if he had prayed to God? And he said “Yes.”
              And I asked him if he had asked God to forgive him for—I believe the words
       were, and I quoted them in my report verbatim “shooting that boy down.” And he
       answered, “Yes.”
J.A. at 218 (Supp. Hr’g Tr. at 83). Helgert testified that Thompkins “refuse[d] to write anything,”
that Thompkins “wouldn’t touch the pen or paper that my partner placed in front of him,” and that
shortly after this exchange the interview was terminated. J.A. at 218-19 (Supp. Hr’g Tr. at 83-84).
On May 10, 2002, the Michigan state court denied Thompkins’s motion to suppress his statements,
reasoning that Thompkins “never invoked his right to remain silent, and participated in the interview
by making eye contact, nodding, and answering questions with, ‘I don’t know.’” J.A. at 152 (Order
Denying Mot. to Suppress at 4).
        On May 13, 2002, Thompkins’s trial began before a jury in the Oakland County Circuit
Court, and Thompkins states that “[t]he defense theory was that Eric Purifoy was the shooter and
that [Thompkins] was merely present.” Pet’r Br. at 7. The prosecution presented the testimony of
several witnesses who saw or heard parts of the altercation and shooting in the mall parking lot. See
Resp’t Br. at 6-8. France testified about the interactions leading up to the shooting; he also testified
about identifying Thompkins as the shooter and Purifoy as the driver after seeing photographs of
them the day after the shooting when France was in the hospital. J.A. at 287-88 (Trial Tr. 5/13/2002
at 231-32). The prosecution also asked France about what he knew about Purifoy’s trial, and France
responded that Purifoy “got charged, but he got found not guilty on having anything to do with this,”
with the prosecution confirming that “this” involved “[t]he murder.” J.A. at 289 (Trial Tr. 5/13/2002
at 237). On cross-examination, France stated that at some point police officers had presented him
No. 06-2435                    Thompkins v. Berghuis                                                             Page 4


with a photo-lineup in which he picked out a person other than Thompkins. J.A. at 295-97 (Trial
Tr. 5/14/2002 at 48-50).
         The prosecution offered the testimony of Omar Stephens (“Omar”),1 who stated that he and
Thompkins were friends and that he had a sister named Tamika. J.A. at 307-11 (Trial Tr. 5/16/2002
at 5-9). Omar stated that he and Tamika had a phone conversation with Thompkins approximately
one month after the shooting, after Omar saw Thompkins’s picture on television. J.A. at 308-10
(Trial Tr. 5/16/2002 at 6-8). Omar testified that Thompkins explained that the shooting victims “got
into it” and that “[h]e just told . . . me he had to pop them up.” J.A. at 311 (Trial Tr. 5/16/2002 at
9). Omar also testified that around the time of the shooting Thompkins had been driving a van
matching the description of the van used in the shooting. J.A. at 312-13 (Trial Tr. 5/16/2002 at 10-
11).
         The prosecution called Purifoy as a witness, but he initially refused to testify, stating that he
had “been advised to take the Fifth Amendment Right as far as anything concerning January 10th.”
J.A. at 343 (Trial Tr. 5/16/2002 at 73). After conferring with his attorney, Purifoy   changed his mind
and later decided to testify. J.A. at 375-76 (Trial Tr. 5/16/2002 at 153-54).2 Purifoy stated that on
January 10, 2000, Thompkins drove Purifoy and Woodward to the mall and Lou’s Deli. J.A. at 379-
82 (Trial Tr. 5/16/2002 at 160, 164-66). Because Thompkins was unfamiliar with the area, Purifoy
gave him directions and, after the group finished eating, Purifoy claimed that he took the keys to
Thompkins’s van for the return drive because they “had some problems getting there.” Id. at 382.
Purifoy also described the shooting, stating that Thompkins was in the passenger seat when Purifoy
pulled the van alongside Morris and France’s car but that when Purifoy heard shots, he and
Thompkins ducked down. J.A. at 383-91 (Trial Tr. 5/16/2002 at 167-71, 174-77). Purifoy testified
that after the shots were fired he looked up and saw a gun in Thompkins’s hand. J.A. at 390-91
(Trial Tr. 5/16/2002 at 176-77). The prosecution requested that the court take judicial notice that
Purifoy had not received immunity for his testimony. J.A. at 401-02 (Trial Tr. 5/16/2002 at 188-89).
The prosecution introduced letters written by Purifoy to Thompkins and read aloud a portion of one
letter referring to Myzell Woodward, the third person in the van on the night of the shooting. The
prosecution stated to Purifoy that “[y]ou know that he [Woodward] has been—he is being looked
at with respect to a murder in Ohio, where he faces potentially the death penalty.” J.A. at 405 (Trial
Tr. 5/16/2002 at 215). The prosecution asked Purifoy about what happened at his own trial
regarding these events, and Purifoy replied that “I was acquitted of the Murder charge and found
guilty on Weapons Charges.” J.A. at 401 (Trial Tr. 5/16/2002 at 188).
        The prosecution presented the testimony of Detective Helgert, eliciting testimony from
Helgert regarding the outcome of Purifoy’s jury trial in which he was acquitted on murder charges
arising out the same events underlying the charges in this trial. J.A. at 345-47 (Trial Tr. 5/16/2002
at 85-87). Helgert also stated that Purifoy “was charged under the theory that he was an Aider and
Abettor.” J.A. at 346 (Trial Tr. 5/16/2002 at 86). Helgert then testified about the interrogation of
Thompkins that took place in Ohio in February 2001. J.A. at 355-66 (Trial Tr. 5/16/2002 at 100-11).


         1
            The record contains some uncertainty as to whether Omar’s last name is Stephens or Allen. J.A. at 426-27
(Trial Tr. 5/17/2002 at 83-84) (witness referring to “Omar Allen”); see also J.A. at 156-61 (Affidavits of Kenneth Lee
and Omar Allen) (asserting that Omar’s last name is Allen and that “[h]is testimony in court that Thompkins had
confessed to him was a total lie”).
         2
            Prior to Purifoy’s testimony, the prosecution moved to exclude several letters that Purifoy wrote to
Thompkins, arguing that the defense had produced them only the preceding day. J.A. at 179 (Fed. Dist. Ct. Op. & Order
Denying Habeas Pet. at 6). In response, the defense claimed that it had not decided whether to introduce the letters and
had received them only the night before the trial. Id. The parties ultimately resolved the matter off-the-record and the
prosecution decided to enter the letters into evidence; after Purifoy testified, the trial judge read a prepared statement
to the jury. See J.A. at 179, 194-95 (Op. at 6, 21-22).
No. 06-2435                    Thompkins v. Berghuis                                                Page 5


He testified that “[m]y partner and I did most of the talking in that interview,” J.A. at 359 (Trial Tr.
5/16/2002 at 104), and that Thompkins “spent a lot of his time sitting . . . simply holding his head
looking down,” J.A. at 364 (Trial Tr. 5/16/2002 at 109). Helgert stated that “I remember two things
that he did say, he said ‘He didn’t want a peppermint’ that my partner offered him and ‘the chair that
he was sitting in was hard.’” Id. Helgert explained that his interrogation tactics included “using the
ostrich head in the sand metaphor. ‘How do you think this is going to turn out for you?’ ‘You need
to help yourself, you need to put forth an explanation.’ ‘People are going to want to hear from
you.’” J.A. at 360-61 (Trial Tr. 5/16/2002 at 105-06). Helgert testified that “[n]one of that
generated any significant response,” that it “wasn’t productive,” and that the questions did not elicit
“any admissions or denials, for that matter, it didn’t really illicit [sic] any sort of reaction.” J.A. at
361, 363 (Trial Tr. 5/16/2002 at 106, 108).
        Helgert stated that “there were several times I had to direct his attention back to me to make
eye contact with me.” J.A. at 363-64 (Trial Tr. 5/16/2002 at 108-09). Describing his questions near
the end of the three-hour interview, Helgert recalled that “[t]he last theme I employed” was his
“spiritual tac[k],” in which he “appeal[ed] to somebody’s sense of morality or religion.” J.A. at 364-
65 (Trial Tr. 5/16/2002 at 109-10); J.A. at 217 (Supp. Hr’g Tr. at 82). This theme elicited several
answers of “Yes” from Thompkins to questions about whether Thompkins believed in God, prayed,
and had prayed for forgiveness for “shooting that boy down.” J.A. at 365 (Trial Tr. 5/16/2002 at
110). Helgert stated that his partner placed a tablet of paper and a pen in front of Thompkins, but
Thompkins “never touched” them. J.A. at 365-66 (Trial Tr. 5/16/2002 at 110-11).
        Two Southfield police officers testified for the defense, Stacey Vida (“Vida”) and Keith
Wing (“Wing”). Vida testified that when    she interviewed France at the hospital he told her that the
shooter was a light-skinned black male.3 J.A. at 417 (Trial Tr. 5/17/2002 at 20). Wing also testified
that France described the shooter as light-skinned. J.A. at 419, 421 (Trial Tr. 5/17/2002 at 46, 60).
The defense presented testimony from Tamika Stephens, who denied that she was related to Omar
Stephens/Allen and stated that she had been Thompkins’s girlfriend for six years. J.A. at 425-26
(Trial Tr. 5/17/2002 at 82-83). Tamika testified that Omar did not have any telephone conversations
with Thompkins in her presence. J.A. at 427-28 (Trial Tr. 5/17/2002 at 84-85). Finally, Tamika and
Thompkins’s cousin Lakeisha Mallory testified that Thompkins is left-handed. J.A. at 430, 434
(Trial Tr. 5/17/2002 at 87, 107). France, the surviving victim of the shooting, had earlier testified
that the shooter used his right hand to pull the trigger. J.A. at 293 (Trial Tr. 5/14/2002 at 25).
        When the case was submitted to the jury, the court did not give an instruction informing the
jury that it could use the evidence regarding the result of co-defendant Purifoy’s jury trial only to
assess Purifoy’s credibility, but Thompkins’s counsel did not request such an instruction or object
to its absence. The jury convicted Thompkins on all charges, and Thompkins appealed to the
Michigan Court of Appeals, which affirmed his convictions in February 2004. J.A. at 163-67 (Mich.
Ct. App. Op.). The Michigan Court of Appeals held that “the record does not demonstrate that
defendant asserted his right to remain silent” and that because Thompkins “continued to talk with
the officer, albeit sporadically . . . [t]he trial court did not clearly err in concluding that defendant
voluntarily waived his right to remain silent and that he did not subsequently invoke his right to
silence.” J.A. at 163-64 (Op. at 1-2). The court noted that plain-error review applied to
Thompkins’s claims of prosecutorial misconduct regarding the references to the jury verdict in
Purifoy’s trial because Thompkins’s counsel failed to object contemporaneously, and the court held
that any errors that may have occurred did not result in prejudice warranting reversal. J.A. at 164-65
(Op. at 2-3). The court rejected Thompkins’s claim of ineffective assistance because it found no
prejudice. J.A. at 165-66 (Op. at 3-4). In particular, the court observed that “[a]lthough the [trial]
court did not specifically instruct the jury that it could consider Purifoy’s conviction only for


        3
            Thompkins has a “‘[d]ark brown’ complexion.” J.A. at 294 (Trial Tr. 5/14/2002 at 27).
No. 06-2435                Thompkins v. Berghuis                                                  Page 6


purposes of his credibility, the record does not disclose an attempt to argue that conviction for an
improper purpose.” J.A. at 166 (Op. at 4). In July 2004, the Michigan Supreme Court denied
Thompkins’s application for leave to appeal the judgment of the Michigan Court of Appeals. J.A.
168 (Mich. Sup. Ct. Order).
       In January 2005, Thompkins filed a petition for a writ of habeas corpus in the U.S. District
Court for the Eastern District of Michigan. J.A. at 4-75 (Petition for Writ of Habeas Corpus & Brief
in Support). The district court denied Thompkins’s petition in September 2006. J.A. at 174-206
(U.S. Dist. Ct. Op. & Order Denying Habeas Pet.). Thompkins filed a Notice of Appeal in October
2006, J.A. at 208 (Notice of Appeal), and the district court granted a partial certificate of
appealability as to the three issues summarized above. J.A. at 457-59 (Order Granting COA).
                                            II. ANALYSIS
A. Standard of Review
       Thompkins seeks relief pursuant to 28 U.S.C. § 2254, which, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr.
24, 1996) (“AEDPA”), provides that
        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; or
                (2) resulted in a decision that was based on an unreasonable determination
                    of the facts in light of the evidence presented in the State court
                    proceeding. 28 U.S.C. § 2254(d)(1)-(2).
         The Supreme Court has explained that “[a] state-court decision will certainly be contrary to
our clearly established precedent if the state court applies a rule that contradicts the governing law
set forth in our cases.” Terry Williams v. Taylor, 529 U.S. 362, 405 (2000). A state-court decision
is also “contrary to” clearly established federal law “if the state court arrives at a conclusion opposite
to that reached by [the Supreme] Court on a question of law or if the state court decides a case
differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Id. at 412-
13. A state court’s decision is an “unreasonable application” of clearly established federal law “if
the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions
but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. “[C]learly
established law under [AEDPA] encompasses more than just bright-line rules laid down by the
[Supreme] Court. It also clearly includes legal principles and standards enunciated in the Court’s
decisions.” Taylor v. Withrow, 288 F.3d 846, 850-51 (6th Cir.), cert. denied, 537 U.S. 1007 (2002).
“The lack of an explicit statement” of a rule “is not determinative” because “[t]he Court has made
clear that its relevant precedents include not only bright-line rules but also the legal principles and
standards flowing from precedent.” Id. at 852; see also Panetti v. Quarterman, 127 S. Ct. 2842,
2858 (2007) (“AEDPA does not ‘require state and federal courts to wait for some nearly identical
factual pattern before a legal rule must be applied.’”) (quotation omitted).
       We review the district court’s legal conclusions de novo and its factual findings for clear
error. Moss v. Hofbauer, 286 F.3d 851, 858 (6th Cir.), cert. denied, 537 U.S. 1092 (2002). We
review the state court’s determination of mixed questions of fact and law under the “unreasonable
application” prong. Barnes v. Elo, 339 F.3d 496, 501 (6th Cir. 2003), cert. denied, 540 U.S. 1164
No. 06-2435               Thompkins v. Berghuis                                                 Page 7


(2004). AEDPA “establish[es] a presumption that a state court’s determination of a factual issue
is correct, and mandat[es] that ‘[t]he applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.’” Moss, 286 F.3d at 858-59 (quoting 28 U.S.C.
§ 2254(e)(1)). “In applying AEDPA, we look to the last state-court decision on the merits, which
in this case is the decision of the [Michigan] Court of Appeals.” Garcia v. Andrews, 488 F.3d 370,
374 (6th Cir.), cert. denied, 128 S. Ct. 493 (2007).
B. Thompkins’s Fifth Amendment Claim
        Thompkins argues that the introduction at his trial of the statements that he made near the
end of the three-hour long interrogation session conducted by Detective Helgert violated the Fifth
Amendment. Thompkins contends that he had effectively invoked his right to remain silent by
being—in the words that Helgert used at the hearing on Thompkins’s Motion to Suppress—“so
uncommunicative,” J.A. at 217 (Supp. Hr’g Tr. at 82), “not verbally communicative,” J.A. at 227
(Supp. Hr’g Tr. at 92), and by “[l]argely . . . remain[ing] silent,” J.A. at 229 (Supp. Hr’g Tr. at 94).
Further, when Thompkins’s attorney asked Helgert whether Thompkins “had consistently exercised
his right to remain substantively silent for at least two hours and forty-five (45) minutes,” Helgert
replied “Yes, that’s right.” J.A. at 232 (Supp. Hr’g Tr. at 97).
        The district court denied Thompkins’s Fifth Amendment claim because it found that the
Michigan state court—which held that Thompkins did not “assert[] his right to remain silent”
because “he continued to talk with the officer, albeit sporadically” such that Thompkins “voluntarily
waived his right to remain silent,” J.A. at 163-64 (Mich. Ct. App. Op. at 1-2)—did not unreasonably
apply clearly established federal law as determined by the Supreme Court or base its decision on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceeding. J.A. 202-03 (Op. at 29-30). Noting that “[t]he prosecution has the burden of
establishing a knowing and intelligent waiver of the rights,” Thompkins argues that “[t]he
prosecution did not meet its heavy burden in proving a valid waiver of the right” to remain silent
given Detective Helgert’s repeated descriptions of Thompkins as silent and uncommunicative and
Helgert’s inability to identify answers to specific questions that Thompkins made in the first two
hours and forty-five minutes of the interview. Pet’r Br. at 15, 22, 21. Thompkins thus contends that
the state court’s decision involved both an “unreasonable application of clearly established federal
law” and “resulted in a decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceedings.” Pet’r Br. at 22 (citing § 2254(d)(2)).
        We agree with Thompkins and reverse the district court’s denial of his petition because the
state-court’s decision involved both “an unreasonable application of[] clearly established Federal
law” and “an unreasonable determination of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
       1. Clearly Established Federal Law Regarding Waiver and Invocation of a Suspect’s
          Right to Remain Silent
         In Miranda v. Arizona, 384 U.S. 436, 475 (1966), the Supreme Court held that “a heavy
burden rests on the government to demonstrate that the defendant knowingly and intelligently
waived his privilege against self-incrimination.” The Supreme Court has explained that “[t]he
critical safeguard” provided by the Miranda warnings is the knowledge of “a person’s ‘right to cut
off questioning.’” Michigan v. Mosley, 423 U.S. 96, 103 (1975) (quoting Miranda, 384 U.S. at 474).
Therefore, “the admissibility of statements obtained after the person in custody has decided to
remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously
honored.’” Id. at 103-04 (quoting Miranda, 384 U.S. at 474, 479).
No. 06-2435               Thompkins v. Berghuis                                                Page 8


        In determining whether a suspect has waived her Miranda rights, the Supreme Court has held
that that “[t]he courts must presume that a defendant did not waive his rights; the prosecution’s
burden is great.” North Carolina v. Butler, 441 U.S. 369, 373 (1979) (emphases added). Further,
“a valid waiver will not be presumed simply from the silence of the accused after warnings are given
or simply from the fact that a confession was in fact eventually obtained.” Miranda, 384 U.S. at
475. In Butler, the Supreme Court re-affirmed its holding in Carnley v. Cochran, 369 U.S. 506, 516
(1962), that “[p]resuming waiver from a silent record is impermissible,” but the Court did state in
Butler that “in at least some cases waiver can be clearly inferred from the actions and words of the
person interrogated.” Butler, 441 U.S. at 373 & n.4. The Court in Butler quoted two crucial
passages from its opinion in Miranda, observing that in Miranda
       this Court said: “If the interrogation continues without the presence of an attorney
       and a statement is taken, a heavy burden rests on the government to demonstrate that
       the defendant knowingly and intelligently waived his privilege against self-
       incrimination and his right to retained or appointed counsel.”
                The Court’s opinion went on to say: “An express statement that the
       individual is willing to make a statement and does not want an attorney followed
       closely by a statement could constitute a waiver. But a valid waiver will not be
       presumed simply from the silence of the accused after warnings are given or simply
       from the fact that a confession was in fact eventually obtained.”
                Thus, the Court held that an express statement can constitute a waiver, and
       that silence alone after such warnings cannot do so. But the Court did not hold that
       such an express statement is indispensable to a finding of waiver.
Butler, 441 U.S. at 372-73 (quoting Miranda, 384 U.S. at 475) (internal citations omitted) (emphases
added). The Court’s Miranda opinion emphasized that “[t]he requirement of warnings and waiver
of rights is [] fundamental with respect to the Fifth Amendment privilege and not simply a
preliminary ritual to existing methods of interrogation.” Miranda, 384 U.S. at 476. Finally, the
Supreme Court has cautioned that “[i]nvocation and waiver are entirely distinct inquiries, and the
two must not be blurred by merging them together.” Smith v. Illinois, 469 U.S. 91, 98 (1984).
         In terms of a suspect’s invocation of her right to remain silent, in Miranda the Supreme
Court held that “[i]f the individual indicates in any manner, at any time prior to or during
questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at
473-74 (emphasis added). Although the Supreme Court has not addressed what conduct or
statements suffice to “indicate[] in any manner” one’s intent to invoke the right to remain silent, the
Supreme Court has explained the standard governing the invocation of one’s right to counsel. In
Davis v. United States, 512 U.S. 452, 455 (1994), the Supreme Court noted that the suspect “waived
his rights to remain silent and to counsel, both orally and in writing.” Approximately an hour and
a half into the interview, the suspect stated that “‘[m]aybe I should talk to a lawyer.’” Id. at 455.
After the investigating agents sought clarification as to whether the suspect wanted a lawyer, the
suspect said “‘No, I don’t want a lawyer.’” Id. Rejecting the defendant’s argument that his
statement that “[m]aybe I should talk to a lawyer” effectively invoked his right to counsel such that
the interrogation should have ceased and his statements been suppressed, the Supreme Court held
that to invoke one’s right to counsel “the suspect must unambiguously request counsel” because the
Court’s “precedents do not require the cessation of questioning” “if a suspect makes a reference to
an attorney that is ambiguous or equivocal.” Id. at 459. The Court specifically restated its holding
as establishing “that, after a knowing and voluntary waiver of the Miranda rights, law enforcement
officers may continue questioning until and unless the suspect clearly requests an attorney.” Id. at
461 (emphases added).
       In terms of our review of the distinct waiver and invocation inquiries, “[a]lthough the
ultimate question of whether [the suspect’s] waiver was knowing and intelligent is subject to review
No. 06-2435                    Thompkins v. Berghuis                                                           Page 9


under the standards set forth in section 2254(d), any subsidiary factual findings made by the state
court are entitled to a presumption of correctness under section 2254(e).” Valdez v. Ward, 219 F.3d
1222, 1231 (10th Cir. 2000) (internal citation omitted); see also Williams v. Jones, 117 F. App’x
406, 412 (6th Cir. 2004) (unpublished) (citing Valdez); United States v. Rodriguez, 518 F.3d 1072,
1076 (9th Cir. 2008) (“This court reviews a trial court’s legal conclusions on Miranda waivers de
novo, and findings of fact underlying those conclusions for clear error.”); United States v. Carter,
489 F.3d 528, 534 (2d Cir. 2007) (“We review a district court’s determination regarding the
constitutionality of a Miranda waiver de novo and a district court’s underlying factual findings for
clear error.”). In the invocation “context, we review the district court’s factual findings concerning
the words a defendant used to invoke his Miranda rights for clear error and whether the words
actually invoked those rights de novo.” Rodriguez, 518 F.3d at 1076.
        In denying Thompkins’s petition, the district court quoted a First Circuit case that
“‘concluded that Davis applies to both components of Miranda: the right to counsel and the right
to remain silent’” and accordingly analyzed the record to determine whether Thompkins “clearly
and unequivocally invoked his right to remain silent after Helgert advised him of his Miranda4
rights.” J.A. at 201-02 (Op. at 28-29) (quoting Bui v. DiPaola, 170 F.3d 232, 239 (1st Cir. 1999)).
         2. The Michigan State Courts’ Adjudication of Thompkins’s Fifth Amendment Claim
         In denying Thompkins’s motion to suppress, the Michigan trial court rejected Thompkins’s
argument that his silence and general uncooperativeness during the three-hour long interview were
“repeated implicit invocations of his right to silence” and instead found that “[t]he defendant never
invoked his right to remain silent.” J.A. at 151-52 (Order Denying Mot. to Suppress at 3-4). As to
the initial issue of whether Thompkins waived his rights, the trial court observed that the officers
advised Thompkins of his rights, but that he refused to sign the form. The trial court concluded that
Thompkins “knowingly and intelligently waived his rights” because he “never invoked his right to
remain silent, and participated in the interview by making eye contact, nodding, and answering
questions with, ‘I don’t know.’” Id. at 152.
     The Michigan Court of Appeals affirmed, and the entirety of its analysis regarding
Thompkins’s Fifth Amendment claim is quoted below:
                  Defendant argues that the trial court erred by denying his motion to suppress
         his statements to the police. Defendant asserts that the police improperly continued
         to interrogate him after he “implicitly” invoked his right to remain silent by failing
         to answer the officers’ questions. We disagree.
                  The record discloses that defendant was advised of his Miranda rights and,
         according to the interrogating officer, verbally acknowledged that he understood
         those rights. Contrary to defendant’s argument, the record does not demonstrate that
         defendant asserted his right to remain silent. Although defendant refused to sign the
         advice of rights form, he continued to talk with the officer, albeit sporadically. He
         answered questions with brief responses, or by nodding his head, but never said he
         did not want to talk or that he was not going to say anything. “When a defendant
         speaks after receiving Miranda warnings, a momentary pause or even a failure to
         answer a question will not be construed as an affirmative invocation by the defendant


         4
           Thompkins contends that lower courts are in conflict regarding whether the Davis “unambiguous request”
standard for invoking the right to counsel affects the analysis of whether an individual has invoked the right to remain
silent. Pet’r Br. at 18-22. Because the resolution of this issue is not critical to the outcome in this case—that is, we
conclude that the prosecution failed to meet its “heavy burden” in first showing that Thompkins waived his Miranda
rights—we need not address Thompkins’s arguments that the Davis standard does not apply to invoking the right to
remain silent.
No. 06-2435                     Thompkins v. Berghuis                                                            Page 10


         of a right to remain silent.” The trial court did not clearly err in concluding that
         defendant voluntarily waived his right to remain silent and that he did not
         subsequently invoke his right to silence. Defendant’s statements were properly
         admitted into evidence.
J.A. 163-64 (Mich. Ct. App. Op. at 1-2) (footnote and citations to Michigan case law omitted).
         The state court’s adjudication of Thompkins’s Fifth Amendment claim both involved an
unreasonable determination of the facts in light of the evidence presented and also unreasonably
applied clearly established federal law. That is, the state court’s analysis failed to pay proper heed
to the Supreme Court’s holding that “[t]he courts must presume that a defendant did not waive his
rights; the prosecution’s burden is great.” Butler, 441 U.S. at 373; see also Miranda, 384 U.S. at
475 (“[A] heavy burden rests on the government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination.”). Furthermore, the record contradicts
the finding that Thompkins “continued to talk with the officer, albeit sporadically.” We consider
the factual determination first, as it underlies the legal determinations.
        The Michigan Court of Appeals’s finding that Thompkins “continued to talk with the officer,
albeit sporadically” lacks support in the record. Certainly, Helgert at one point testified that
Thompkins “talk[ed] with us very sporadically,” J.A. at 216 (Supp. Hr’g Tr. at 81), but Helgert
identified essentially no specific statements that Thompkins made. At the suppression hearing,
Helgert testified that during the first two hours and forty-five minutes of the interrogation Helgert
was “just repeating that theme [and b]eing really quite repetitious in the monologue, ‘This is your
opportunity to talk. What do you think is going to happen? Who is going to speak up for you if you
don’t speak up for yourself?’” J.A. 233 (Supp. Hr’g Tr. at 98). When the prosecution asked Helgert
how Thompkins responded to this monologue, Helgert offered vague testimony that “sometimes
[Thompkins’s response] would be eye-contact, sometimes it would be a nod of the head, sometimes,
I know the words, ‘I don’t know’ was quite prevalent,” while also admitting that Thompkins “sat
there and listened to our speech, if you will, most of the time.” J.A. at 233, 234 (Supp. Hr’g Tr. at
98, 99). Helgert never identified any specific question or questions to which Thompkins made his
“responses” of eye-contact, head nods, or use of the phrase “I don’t know.” Indeed, Helgert even
admitted that when he tried his “spiritual tac[k]” near the end of the interrogation, Thompkins then
“made eye-contact with me for one of the few times that he did for the interview.” J.A. at 218 (Supp.
Hr’g Tr. at 83) (emphasis added). Helgert’s testimony thus demonstrates that Thompkins rarely
even made eye contact with the officers. At trial, Helgert stated that “I remember two things that
he did say, he said ‘He didn’t want a peppermint’ that my partner offered him and ‘the chair that he
was sitting in was hard.’” J.A. at 364 (Trial Tr. 5/16/2002 at 109).
        Given that the above constituted the total of Thompkins’s responses to the first two hours
and forty-five minutes of the interrogation, the Michigan Court of Appeals’s finding that Thompkins
“talk[ed] with the officer, albeit sporadically” simply misrepresents the record. Rather, Helgert’s
testimony demonstrates that the interrogation was “very, very one-sided,” J.A. at 217 (Supp. Hr’g
Tr. at 82), “nearly a monologue,” J.A. at 227 (Supp. Hr’g Tr. at 92), and that Thompkins was
“uncommunicative,” J.A. at 217 (Supp. Hr’g Tr. at 82), and “not verbally communicative,” J.A. at
227 (Supp. Hr’g Tr. at 92). Most revealingly, three times Thompkins’s counsel asked Helgert
variations of a question regarding whether Thompkins remained silent during the first two-plus
hours of the interrogation, and each time Helgert  confirmed that Thompkins had done so. See J.A.
at 229, 231, 232 (Supp. Hr’g Tr. at 94, 96, 97).5 Contrary to the state court’s statement, the evidence

         5
           Specifically, the first question asked Helgert whether “consistently . . . for two hours and fifteen (15) minutes
every time you gave [Thompkins] an opportunity to participate meaningfully in the conversation he exercised his right
to remain silent,” and Helgert replied that “[l]argely he remained silent, that’s correct.” J.A. at 229 (Supp. Hr’g Tr. at
94). The second question asked Helgert whether Thompkins “exercised [his right to remain silent] continuously for two
No. 06-2435                    Thompkins v. Berghuis                                                           Page 11


demonstrates that Thompkins was silent for two hours and forty-five minutes. Indeed, the only
evidence of Thompkins’s participation consists of his declining a peppermint, complaining about
his chair, and occasionally nodding his head or responding “I don’t know” to unidentified questions,
and these actions do not amount even to “sporadic” conversation with the officers. To disregard a
state court’s factual determination, “the state court’s factual determination must be ‘objectively
unreasonable’ in light of the evidence presented during the state proceedings,” and this is such a
case. Dennis v. Mitchell, 354 F.3d 511, 518 (6th Cir. 2003).
         The state court also unreasonably applied clearly established federal law insofar as the court
viewed such scant evidence of Thompkins’s participation during the interrogation as demonstrating
that Thompkins voluntarily waived his right to remain silent given the Supreme Court’s command
that “[t]he courts must presume that a defendant did not waive his rights; the prosecution’s burden
is great.” Butler, 441 U.S. at 373; see also Miranda, 384 U.S. at 475 (stating that a “heavy burden
rests on the government” to prove waiver). Helgert’s vague testimony regarding Thompkins’s
“responses” during the interrogation—responses consisting of eye contact, head nods, declining a
peppermint, complaining about his chair, and occasional statements of “I don’t know”—does not
suffice to meet the state’s “great” burden of showing that Thompkins waived his right to remain
silent. The Supreme Court’s opinion in Miranda specifically addressed this precise issue: “[A]
valid waiver will not be presumed simply from the silence of the accused after warnings are given
or simply from the fact that a confession was in fact eventually obtained.” Miranda, 384 U.S. at 475
(emphasis added); see also United States v. Upton, 512 F.3d 394, 399 (7th Cir. 2008) (“Waiver can
never occur through ‘mere silence,’ as the Miranda warnings themselves indicate.”) (citing Butler,
441 U.S. at 373). In addition, Thompkins refused to sign even the advice of rights form, which
purports only to show a suspect’s acknowledgment that officers had read the rights and not that the
suspect was waiving the rights. The Supreme Court’s opinion in Butler clearly permits implied
waivers of Miranda rights, but a suspect’s uncooperativeness or refusal to sign even an advice of
rights form certainly has relevance to determining whether Thompkins waived his rights. Butler,
441 U.S. at 374 (“[T]he question of waiver must be determined on ‘the particular facts and
circumstances surrounding th[e] case, including the background, experience, and conduct of the
accused.’”) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
         Had Helgert identified any particular exchange involving an instance of eye contact or a head
nod, the issue of whether the prosecution had satisfied its “heavy burden” of showing “a course of
conduct indicating waiver” would be entirely different. Helgert described his questioning as similar
to a “monologue” propounding on the “theme” that this was Thompkins’s opportunity to tell his side
of the story. Crucially, Helgert described Thompkins’s conduct throughout the first two and half
hours of the interview as generally “shar[ing] very limited verbal responses with us,” J.A. at 217
(Supp. Hr’g Tr. at 82), as “remain[ing] silent,” J.A. at 229 (Supp. Hr’g Tr. at 94), and as “not very
cooperative or responding,” J.A. at 228 (Supp. Hr’g Tr. at 93). Helgert described Thompkins’s
“limited” conduct of making a “nod of the head” or a “‘yeah,’ or a ‘no,’ or ‘I don’t know’” without
providing any context. J.A. at 236-37 (Supp. Hr’g Tr. at 101-02). Had Helgert testified that
Thompkins nodded his head in response to a question asking whether Thompkins wanted his side
of the story to be known, such testimony would obviously be powerful evidence of waiver; a head
nod in response to a question asking whether Thompkins was comfortable declining to exercise his
opportunity to tell his side of the story (or a “no” to a question about whether Thompkins wished
to tell his story) would present an entirely different situation. Without the context of Thompkins’s
occasional eye contact or head nods, we cannot say that Thompkins’s conduct indicated a waiver


hours and forty-five (45) minutes in terms of substantive responses to your attempts to elicit statements regarding his
offense, is that fair to say?,” and Helgert responded “[m]uch of the time. Most of the time, yes.” J.A. at 231 (Supp. Hr’g
Tr. at 96). Finally, the third question inquired whether Thompkins’s statements responding to Helgert’s “spiritual tac[k]”
of questioning came “after [Thompkins] had consistently exercised his right to remain substantively silent for at least
two hours and forty-five (45) minutes?,” and Helgert answered “Yes, that’s right.” J.A. at 232 (Supp. Hr’g Tr. at 97).
No. 06-2435                Thompkins v. Berghuis                                                Page 12


of his rights; to the contrary, refusing to sign even an advice of rights form, being “so
uncommunicative,” J.A. at 217 (Supp. Hr’g Tr. at 82), “remain[ing] silent,” J.A. at 229 (Supp. Hr’g
Tr. at 94), and “spen[ding] a lot of his time sitting . . . simply holding his head looking down,” J.A.
at 364 (Trial Tr. 5/16/2002 at 109), form a course of conduct that powerfully suggests Thompkins
did not waive his rights.
        Thompkins’s conduct also contrasts markedly to the behavior of defendants in cases where
courts have found implied waivers. For instance, in United States v. Upton, 512 F.3d 394, 399 (7th
Cir. 2008), the Seventh Circuit found that the defendant “impliedly waived his Miranda rights
before he confessed” even though “he did not sign an acknowledgment form” because the defendant
“freely talk[ed] about the allegations against him, admitting they were true but attempting to strike
a deal.” The Seventh Circuit also stated that “[w]aiver can never occur through ‘mere silence,’ as
the Miranda warnings themselves indicate.” Id. Similarly, in United States v. Younger, 398 F.3d
1179, 1186 (9th Cir. 2005), the Ninth Circuit affirmed a district court’s finding of “an implied
waiver . . . based on evidence that after Officer Hall advised defendant of his Miranda rights but
before questioning him, defendant made a spontaneous statement and responded to further
questioning without reference to counsel.” In Burket v. Angelone, 208 F.3d 172, 198 (4th Cir. 2000),
the Fourth Circuit denied a certificate of appealability in a case in which the Virginia Supreme Court
found an implied waiver given that the defendant “initiated a conversation” with the detective and
“stated that he understood his rights and wanted to talk to” the detective.
         The case presenting perhaps the starkest contrast is Bui v. DiPaola, 170 F.3d 232, 239 (1st
Cir. 1999), the First Circuit case that the district court cited. In Bui, the First Circuit observed that
courts “routinely” conclude that defendants have impliedly waived their rights in cases in which the
“incriminating statements were made either as part of a ‘steady stream’ of speech or as part of a
back-and-forth conversation with the police.” Bui, 170 F.3d at 240 (internal citations omitted). The
First Circuit concluded that the petitioner’s interview “fit the implied waiver profile” because the
record showed “a fairly standard two-way conversation with the authorities” in which the
petitioner’s conduct even included a “continuation of the conversation,” asking the officers “‘who
said I did this’” when the officers inquired “whether he had something to say about the reasons for
his arrest” in response to the petitioner’s “boast[] that the police had nothing” on him. Id. at 240-41.
The account of Helgert’s interview with Thompkins bears no resemblance to the clear evidence in
Bui of a back-and-forth conversation between the petitioner and the authorities, which included
specific questions and answers. Indeed, the evidence in Bui demonstrated that the petitioner even
asked questions; in contrast, as Helgert testified at trial, Thompkins “spent a lot of his time sitting
. . . simply holding his head looking down,” J.A. at 364 (Trial Tr. 5/16/2002 at 109). Helgert
described the interview as “nearly a monologue,” J.A. at 227 (Supp. Hr’g Tr. at 92), and as “very,
very one-sided,” J.A. at 217 (Supp. Hr’g Tr. at 82), an account that clearly establishes the interview
was not “a fairly standard two-way conversation.” Bui, 170 F.3d at 241.
        As a result, we conclude that Thompkins did not waive his rights, and the Michigan Court
of Appeals unreasonably applied clearly established federal law, namely Miranda itself and Butler,
in concluding otherwise. The state failed to satisfy its “heavy burden” of showing that Thompkins’s
“course of conduct indicat[ed] waiver.” Butler, 441 U.S. at 373. Indeed, Thompkins’s persistent
silence for nearly three hours in response to questioning and repeated invitations to tell his side of
the story offered a clear and unequivocal message to the officers: Thompkins did not wish to waive
his rights. See United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988) (concluding that the
defendant “did not waive her rights” when, “[i]n the face of repeated questioning by Agent Brehm,
Wallace maintained her silence for several minutes and, perhaps, as many as ten minutes.”).
       In sum, we hold that the district court erred in denying Thompkins’s petition for a writ of
habeas corpus because the Michigan Court of Appeals’s rejection of his Fifth Amendment claim
“was based on an unreasonable determination of the facts in light of the evidence” and “involved
No. 06-2435               Thompkins v. Berghuis                                                Page 13


an unreasonable application of[] clearly established Federal law.” § 2254(d). Because we conclude
that the Michigan Court of Appeals unreasonably applied clearly established federal law in
determining that Thompkins waived his right to remain silent, we do not need to resolve whether
the state court further unreasonably applied clearly established federal law in determining that
Thompkins failed to invoke his right to remain silent by in fact remaining substantively silent for
nearly three hours.
C. Thompkins’s Prosecutorial Misconduct Claim
        Thompkins argues that various instances of prosecutorial misconduct violated his Due
Process Clause right to a fair trial. Pet’r Br. at 23-34. Thompkins’s claim of prosecutorial
misconduct centers upon the prosecution’s offering “evidence of Purifoy’s jury verdict and guilty
plea conviction and of the aider and abettor charge against Purifoy.” J.A. at 459 (Order Granting
Certificate of Appealability at 3).
        The warden argues that Thompkins has procedurally defaulted this claim because he failed
to object contemporaneously to the instances of prosecutorial misconduct and the Michigan Court
of Appeals reviewed this claim for plain error. Resp’t Br. at 25 (citing Gulertekin v.
Tinnelman-Cooper, 340 F.3d 415, 423-34 (6th Cir. 2003); see also Seymour v. Walker, 224 F.3d
542, 557 (6th Cir. 2000) (noting that “[c]ontrolling precedent in our circuit indicates that plain error
review does not constitute a waiver of state procedural default rules”). The warden further notes that
Thompkins’s appellate brief failed to argue for the existence of cause and prejudice to excuse his
procedural default. Resp’t Br. at 25. In his Reply Brief, Thompkins did include a brief section
asserting that his arguments relating to his ineffective-assistance-of-counsel claim sufficiently
demonstrated cause and prejudice for the failure to preserve his claim of prosecutorial misconduct.
Pet’r Reply Br. at 2-3.
        In ruling on Thompkins’s prosecutorial-misconduct claim, the district court noted the
warden’s argument that the claim was procedurally defaulted but elected to consider the merits
“[g]iven that the cause and prejudice inquiry for the procedural default issue merges with an analysis
of the merits of [Thompkins’s] ineffective assistance of counsel claim.” J.A. at 184 (Op. at 11 n.3).
Although Thompkins’s failure to set forth an explicit argument regarding cause and prejudice until
his Reply Brief is troubling in light of this clear notice that the warden had already asserted that his
prosecutorial-misconduct claim was procedurally defaulted, we follow the district court in
considering the merits of Thompkins’s prosecutorial-misconduct claim given the overlapping
analysis. We also conclude that Thompkins is not entitled to relief on this claim.
       1. Clearly Established Federal Law Regarding Prosecutorial Misconduct
         “On habeas review, [t]he relevant question is whether the prosecutor’s comments so infected
the trial with unfairness as to make the conviction a denial of due process.” Bates v. Bell, 402 F.3d
635, 640-41 (6th Cir. 2005) (quotation omitted). Therefore, “to obtain relief, [Thompkins] must
demonstrate that the prosecution’s conduct was both improper and so flagrant as to warrant
reversal.” Id. at 641. We consider four factors “in determining whether the challenged conduct is
flagrant: (1) the likelihood that the remarks of the prosecutor tended to mislead the jury or prejudice
the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were
deliberately or accidentally made; and (4) the total strength of the evidence against the defendant.”
Id. Finally, “[c]laims of prosecutorial misconduct are reviewed deferentially on habeas review.”
Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004).
       2. The State Court’s Adjudication of Thompkins’s Prosecutorial-Misconduct Claim
       The Michigan Court of Appeals applied plain-error review to Thompkins’s claim of
prosecutorial misconduct because of his failure to lodge contemporaneous objections. J.A. at 164-65
No. 06-2435                Thompkins v. Berghuis                                                Page 14


(Mich. Ct. App. Op. at 2-3). The state court recognized that it was “improper for the prosecution
to introduce evidence of codefendant Purifoy’s conviction,” but it concluded that Thompkins’s
“substantial rights were not affected because the defense asserted that Purifoy was the shooter and
that the evidence of Purifoy’s conviction [on firearm charges] linked Purifoy to the gun.” J.A. at
164 (Op. at 2). As a result, the court of appeals apparently believed that the evidence that Purifoy
had been convicted of possessing a firearm on that date would bolster Thompkins’s attempts to pin
the murder on Purifoy, despite the evidence that Purifoy’s jury had acquitted him of the murder
charges.
        The district court agreed with the state court that “[t]he testimony regarding the outcome of
Purifoy’s trial was improper and should not have been admitted.” J.A. at 186 (Op. at 13). However,
the district court noted that “if the defendant’s accomplice testifies at trial, evidence of the
accomplice’s convictions may be introduced so the jury can assess his credibility,” so long as the
trial court instructs the jury “that it may not consider the accomplice’s conviction as evidence of the
defendant’s guilt.” J.A. at 186-87 (Op. at 13-14). Even though Purifoy testified and the trial court
failed to give the jury such a cautionary instruction, the district court denied Thompkins’s
prosecutorial-misconduct claim because it did not believe that the introduction of such evidence
rendered the entire trial fundamentally unfair. Id.
        We agree with the district court’s analysis and affirm the denial of Thompkins’s
prosecutorial-misconduct claim on this ground. The true cause for concern is not necessarily that
the prosecutor elicited such evidence of an accomplice’s conviction—as the district court noted,
evidence of an accomplice’s conviction is admissible to evaluate the witness’s credibility—but
rather the failure of the trial court to instruct the jury on the proper use of the evidence (and the
failure of defense counsel to request such an instruction). It was not wholly illegitimate and
improper for the prosecution to introduce evidence of Purifoy’s convictions, and the error that
occurred from this introduction stemmed not from the prosecutor’s actions but instead from the
failure of Thompkins’s counsel to request, and the trial court’s failure to give, a cautionary
instruction to the jury. That is, although an error or misconduct occurred, the parties responsible for
that error are Thompkins’s attorney and the trial judge, not the prosecutor. Accordingly,
Thompkins’s claim of prosecutorial misconduct lacks merit.
D. Thompkins’s Ineffective-Assistance-of-Counsel Claim
         Thompkins argues that he received ineffective assistance of counsel because his attorney
failed to request that the trial court instruct the jury that it could consider the evidence of Purifoy’s
jury trial and guilty pleas only in assessing Purifoy’s credibility and not as substantive evidence of
Thompkins’s guilt. Pet’r Br. at 36. We conclude that the district court erred in denying
Thompkins’s ineffective-assistance-of-counsel claim and that Thompkins is entitled to habeas relief
on this ground as well.
        1. Clearly Established Federal Law Regarding Ineffective Assistance of Counsel
        The standard for establishing ineffective assistance of counsel requires that a defendant
(1) “show that counsel’s representation fell below an objective standard of reasonableness” and (2)
that a defendant show prejudice, i.e., that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 694 (1984). Further, “[a] reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
No. 06-2435               Thompkins v. Berghuis                                               Page 15


       2. The State Court’s Adjudication of Thompkins’s Ineffective-Assistance-of-Counsel
          Claim
        That Thompkins has satisfied the first prong of his ineffectiveness claim—deficient
performance—is clear. Although the warden contends that “failure to ask for [a limiting] instruction
was sound trial strategy,” Resp’t Br. at 30, the Michigan Court of Appeals appeared to accept that
counsel’s failure to request a limiting instruction was error and simply denied Thompkins
ineffectiveness claim because it found a lack of prejudice because “the record does not disclose an
attempt to argue [Purifoy’s] conviction for an improper purpose,” that is, for a purpose other than
an effect on Purifoy’s credibility. J.A. at 166 (Mich. Ct. App. Op. at 4). Likewise, the district court
agreed with Thompkins “that effective counsel would have requested such [a limiting] instruction.”
J.A. at 197 (Op. at 24). Indeed, the failure to request such a limiting instruction is particularly
deficient in light of Thompkins’s primary defense at trial, which was “that Eric Purifoy was the
shooter and that defendant was merely present.” Pet’r Br. at 7. The district court noted
Thompkins’s argument that “he was extraordinarily prejudiced by the introduction of this testimony
[relating to Purifoy’s trial and convictions] because his defense was that Purifoy was the shooter.
As [Thompkins] raises: ‘[i]f Purifoy’s jury found him not guilty who did that leave as the shooter?’”
J.A. at 185 (Op. at 12).
        We hold that Thompkins has satisfied the second prong of his ineffectiveness claim as well.
Although the district court found that the performance of Thompkins’s counsel was deficient, the
court denied Thompkins’s claim because “the Court [did] not believe that the introduction of
evidence regarding Purifoy’s convictions rendered [Thompkins’s] trial fundamentally unfair.” J.A.
at 197 (Op. at 24). Rendering the trial “fundamentally unfair,” however, is not the standard used
to evaluate a claim of ineffective assistance; under Strickland, the required showing is prejudice,
measured as “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. Given that Thompkins’s
central strategy at trial involved pinning the blame on Purifoy, that his jury heard evidence—from
multiple witnesses, J.A. at 345-47 (Trial Tr. 5/16/2002 at 85-87) (Helgert); J.A. at 289 (Trial Tr.
5/13/2002 at 237) (France); J.A. at 401 (Trial Tr. 5/16/2002 at 188) (Purifoy)—that Purifoy had been
acquitted of murder likely exerted a powerful influence on the jury to convict Thompkins of murder.
If the jury did not convict Thompkins, the jury knew that no one would be convicted for killing
Morris and shooting France. Most importantly, in the absence of a limiting instruction, the jury
could well have believed that it was entirely proper to weigh Purifoy’s acquittal as significant
evidence that Thompkins must have been the shooter. In fact, the trial court’s jury instructions
included the statement that “[y]ou may convict the defendant based only on the accomplice’s
testimony, if you believe the testimony and it proves the Defendant’s guilty beyond a reasonable
doubt.” J.A. at 443 (Trial Tr. 5/17/2002 at 166) (emphasis added). The jury thus heard that it could
convict Thompkins based solely on Purifoy’s testimony, which included not only his account of the
shooting but also his statement that he had been acquitted of murder.
        Although we have concluded that the district court erred in denying Thompkins’s ineffective-
assistance-of-counsel claim, on habeas review Thompkins of course bears the additional burden of
“show[ing] that the [Michigan] Court of Appeals applied Strickland to the facts of his case in an
objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699 (2002). We hold that
Thompkins has satisfied this burden as well.
        The Michigan Court of Appeals applied Strickland in an objectively unreasonable manner
in this case because its analysis of prejudice was fundamentally flawed. The Michigan Court of
Appeals appeared to acknowledge that Thompkins’s counsel erred and was deficient in failing to
request a limiting jury instruction regarding the evidence of Purifoy’s trial verdicts, but it rejected
Thompkins’s claim because “the record does not disclose an attempt to argue [regarding Purifoy’s]
No. 06-2435               Thompkins v. Berghuis                                             Page 16


conviction for an improper purpose.” J.A. at 166 (Mich. Ct. App. Op. at 4). Questions of the
prosecution’s purpose or intent are completely irrelevant in an analyzing whether an error resulted
in prejudice, which by definition concerns the error’s effect upon the outcome. Strickland, 466 U.S.
at 696 (“[A] court making the prejudice inquiry must ask if the defendant has met the burden of
showing that the decision reached would reasonably likely have been different absent the errors.”)
(emphasis added). Even if the prosecution intended that the evidence regarding Purifoy’s jury trial
outcome be considered only as it pertained to Purifoy’s credibility, the prosecutor’s intent does not
cure the problem that a reasonable probability exists that the jury understood Purifoy’s acquittal as
powerful evidence that Thompkins, the only other individual in the front seat of the van, must have
been the shooter.
        In denying Thompkins’s ineffective-assistance claim on the ground that the prosecution did
not introduce evidence relating to Purifoy’s jury trial “for an improper purpose,” the Michigan Court
of Appeals applied the prejudice prong of the Strickland analysis in an objectively unreasonable
manner. We therefore conclude that Thompkins is entitled to relief on his claim of ineffective
assistance of counsel.
                                       III. CONCLUSION
        For the reasons discussed above, we AFFIRM the district court’s denial of Thompkins’s
petition for a writ of habeas corpus as to his claim of prosecutorial misconduct, but we REVERSE
the judgment of the district court denying relief as to his Fifth Amendment and ineffective-
assistance-of-counsel claims and REMAND the case with instructions that the district court order
that Thompkins be released from state custody unless the State of Michigan commences a new trial
within 180 days of the final federal-court judgment in this case.
