                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0696n.06

                                          No. 17-1422                                    FILED
                                                                                 Dec 19, 2017
                         UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

JEFFREY MONTREAL CURRY,                                 )
                                                        )
       Petitioner-Appellant,                            )
                                                        )
v.                                                      )       ON APPEAL FROM THE
                                                        )       UNITED STATES DISTRICT
PAUL KLEE, Warden,                                      )       COURT FOR THE EASTERN
                                                        )       DISTRICT OF MICHIGAN
       Respondent-Appellee.                             )
                                                        )
                                                        )



       Before: SILER, KETHLEDGE, and THAPAR, Circuit Judges.

       KETHLEDGE, Circuit Judge. Jeffrey Curry appeals the district court’s denial of his

petition for a writ of habeas corpus, arguing that the state courts violated his Fifth Amendment

rights when they admitted his confession at trial. We reject his arguments and affirm.

       Curry shot Dedrick Jackson at the house of their mutual friend, Christopher Ray.

According to Curry, he stayed up the rest of the night drinking and getting high on cocaine and

other drugs. The police arrested Curry later that day—but only after a chase, which ended when

a squad car struck Curry as he ran through a parking lot. That left Curry with a scratch on his

cheek and bruises on his back, arm, and leg. An officer took Curry to the police station, where

(according to Curry) he asked the officer to take him to the hospital. Curry says the officer

refused.
No. 17-1422
Curry v. Klee

          Detective Robert Ruth then arrived to interview Curry. The two spoke for a few minutes,

during which time Ruth asked Curry about an old scar on his stomach. Curry said that Jackson

had given him the scar. Curry added that he had gone to Ray’s house without knowing that

Jackson was there and that Jackson “came outside and put a gun to [Curry’s] stomach and

[Curry] took it.” Ruth then asked, “you shot in self defense is what you’re saying?” Curry

responded, “I guess so.”

          Another detective then joined the interview. Curry asked the two detectives if he could

go to the hospital; they said they would take him when they “got done here.” Ruth then read

Curry his Miranda rights, which he waived. See Miranda v. Arizona, 384 U.S. 436, 444-45

(1966). Curry thereafter described how he shot Jackson in self-defense. After the interview, the

police took Curry to the hospital, where doctors examined him and found that he had no major

injuries.

          Before trial in state court, Curry moved to suppress his confession, arguing it was

involuntary because the officers had refused to take him to the hospital first. The court denied

Curry’s motion, and a jury later found him guilty of second-degree murder and other related

crimes. The court sentenced him to 25-50 years’ imprisonment. Curry appealed the suppression

issue to the Michigan Supreme Court, which remanded for factual findings. The trial court

thereafter conducted an evidentiary hearing and determined that Curry’s waiver and confession

were voluntary. The Michigan Court of Appeals affirmed, and the state supreme court denied

review.

          Curry thereafter filed a petition for federal habeas relief, again raising the suppression

issue. The district court denied the petition. We review that decision de novo. See Wheeler v.

Simpson, 852 F.3d 509, 514 (6th Cir. 2017).


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Curry v. Klee

         To obtain habeas relief, Curry must show that the state courts’ decision was contrary to,

or an unreasonable application of, clearly established Supreme Court precedent. See 28 U.S.C.

§ 2254(d)(1). An application of established precedent is unreasonable if no “fairminded jurists”

could agree with the state court’s decision. Harrington v. Richter, 562 U.S. 86, 101 (2011).

         Curry claims that his Miranda waiver and confession were involuntary and thus violated

the Fifth Amendment. Coercive police conduct “is a necessary predicate” to establishing that

claim.    Colorado v. Connelly, 479 U.S. 157, 167, 169-70 (1986).          Curry argues that the

detectives coerced him when they refused to take him to the hospital until he first explained why

he had shot Jackson. After the evidentiary hearing, however, the trial court specifically found

that Curry’s injuries were not serious and that the detectives had not withheld medical care to

force him to talk. We presume those findings correct absent clear and convincing evidence to

the contrary. See 28 U.S.C. § 2254(e)(1). There is no such evidence here: the detectives

testified (credibly, in the trial court’s view) that they told Curry he could stop talking to them

whenever he wanted. And once Curry got to the hospital, his treaters found that he had no major

injuries. The record thus supports the trial court’s findings.

         Curry also argues that his waiver and confession were involuntary because he was drunk,

high on cocaine, and sleep-deprived when he gave them. But Curry cites no Supreme Court

precedent that would have made clear to the state courts that these circumstances rendered his

statements involuntary. And as a factual matter the trial court found that Curry was alert during

the interview and not drunk or high. So this argument fails.

         Curry next argues that his confession should have been excluded because the detectives

did not read him his Miranda rights until after the interrogation had begun. As an initial matter,

the state agrees that the trial court should not have admitted the statements that Curry made


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Curry v. Klee

before he received his Miranda warnings. The parties dispute, however, whether that error

warrants relief and whether Curry’s post-warning statements were properly admitted.         We

address first whether Curry’s post-warning statements were properly admitted, because, if they

were, then his pre-warning statements were cumulative and thus less prejudicial.

       Curry contends that his post-warning statements—namely his admission that he shot

Jackson “in self defense”—were involuntary because he had already said the same thing before

he received his Miranda warnings. The usual rule in these circumstances is that the defendant’s

post-warning statements are admissible so long as the defendant was not coerced before or after

he received the warnings. See Oregon v. Elstad, 470 U.S. 298, 307, 318 (1985). But Curry says

that his post-warning statements were inadmissible because his interrogation was continuous,

without any break between his pre-warning statements and his post-warning ones. For support,

Curry cites the Court’s plurality opinion in Missouri v. Seibert, 542 U.S. 600, 615 (2004). But

we have already held that Seibert did not create a binding rule for purposes of habeas review.

See United States v. Ray, 803 F.3d 244, 272 (6th Cir. 2015). We therefore lack authority to hold

that the state court unreasonably admitted Curry’s post-warning statements at trial. And that

means the court’s admission of his pre-warning statements was largely cumulative and thus not a

basis for habeas relief. See Ruelas v. Wolfenbarger, 580 F.3d 403, 413 (6th Cir. 2009).

       The district court’s judgment is affirmed.




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