           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    Ketchings v. Jackson                        No. 03-1054
        ELECTRONIC CITATION: 2004 FED App. 0112P (6th Cir.)
                    File Name: 04a0112p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ARGUED: Debra M. Gagliardi, OFFICE OF THE
                  FOR THE SIXTH CIRCUIT                                  ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
                    _________________                                    Phillip D. Comorski, Detroit, Michigan, for Appellee.
                                                                         ON BRIEF: Debra M. Gagliardi, OFFICE OF THE
 ROBERT HENRY KETCHINGS            X                                     ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
 JR.,                               -                                    Gerald Lorence, Detroit, Michigan, for Appellee.
           Petitioner-Appellee, -                                                            _________________
                                    -  No. 03-1054
                                    -
            v.                       >                                                           OPINION
                                    ,                                                        _________________
                                    -
 ANDREW JACKSON , Warden,           -                                       RONALD LEE GILMAN, Circuit Judge. Robert Henry
        Respondent-Appellant. -                                          Ketchings Jr. was tried by a jury in a Michigan state court and
                                    -                                    convicted of second-degree murder, assault with intent to
                                   N                                     inflict great bodily harm less than murder, intentional
       Appeal from the United States District Court                      discharge of a firearm at a dwelling, and the use of a firearm
      for the Eastern District of Michigan at Detroit.                   in a felony. The charges arose from Ketchings’s involvement
    No. 01-73141—Nancy G. Edmunds, District Judge.                       in a drive-by shooting in Detroit. After exhausting his state-
                                                                         court remedies, Ketchings petitioned the district court for a
                    Argued: March 17, 2004                               writ of habeas corpus. He argued, among other things, that
                                                                         the length of his sentence was unlawfully extended because
              Decided and Filed: April 19, 2004                          of his refusal to admit that he was guilty of the offenses for
                                                                         which he was convicted. Ketchings contended that his
  Before: KRUPANSKY and GILMAN, Circuit Judges;                          sentence was therefore imposed in violation of his right
             RUSSELL, District Judge.*                                   against self-incrimination, a right enshrined in the Fifth
                                                                         Amendment to the United States Constitution.
                                                                           The district court concluded that the state court had
                                                                         unreasonably applied the relevant holdings of the United
                                                                         States Supreme Court regarding the Fifth Amendment. It
                                                                         therefore granted a conditional writ of habeas corpus, to
                                                                         become effective unless Ketchings is properly resentenced by
                                                                         another state trial judge. Michigan now appeals. For the
    *
     The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.

                                  1
No. 03-1054                      Ketchings v. Jackson         3   4        Ketchings v. Jackson                        No. 03-1054

reasons set forth below, we AFFIRM the judgment of the            to 10 years for assault, and 2 to 4 years for the discharge of a
district court.                                                   firearm, and to a consecutive 2-year term for using a firearm
                                                                  to commit a felony. The sentence imposed on the second-
                   I. BACKGROUND                                  degree murder count was nearly twice the maximum
                                                                  recommended by the Michigan Sentencing Guidelines, which
 A summation of the material facts is provided by the             establishes a relevant range of 10 to 25 years’ imprisonment.
Michigan Court of Appeals:
                                                                    In his appeal to the Michigan Court of Appeals, the last
     At trial, the evidence established that defendant’s          court in Michigan to address the merits of his case, Ketchings
  friend had been robbed the night before the drive-by            presented the following six claims:
  shooting in question. The next day, defendant, along
  with three other persons, sought revenge for the robbery.           1. that the trial court abused its discretion in admitting
  They set out in a car in search of “Rick,” the alleged              other-acts evidence;
  robber. Defendant was armed with a .380 automatic and
  the other persons in the vehicle were likewise armed with           2. that the trial court erred in failing to instruct the jury
  an AK-47 and a 9 millimeter semi-automatic pistol.                  on the cognate lesser included offenses of voluntary and
  They stopped in front of a house looking for Rick, and              involuntary manslaughter and careless, reckless, and
  unable to find him, emptied a barrage of gunfire at the             negligent use of a firearm with death resulting;
  house, outside of which children were playing. Although
  testimony at trial indicated that defendant’s gun jammed,           3. that the trial court abused its discretion when it
  witnesses testified that defendant raised himself out of            denied Ketchings’s motion for a mistrial;
  the driver’s side window of the car as he fired at the
  house. Spent shell casings were later found at the scene            4.    that Ketchings was denied his right to a speedy trial;
  belonging to both defendant’s .380 automatic and the
  codefendant’s 9 millimeter weapon. A nine-year-old girl             5. that the trial court improperly took Ketchings’s
  who was playing outside of the house was shot and killed            failure to admit guilt into account at sentencing;
  as a result of the gunfire.
                                                                      6. that his sentence of 40 to 80 years for second-degree
People v. Ketchings, 1999 WL 33437836, at * 3 (Mich. App.,            murder violates the principle of proportionality.
Aug. 20, 1999) (per curiam) (unpublished). The drive-by
shooting took place on October 29, 1994. Ketchings was 19         The Michigan Court of Appeals rejected all six claims.
years old at the time. The forensic evidence established that     (Although the appellate court found that the trial court had
the victim was killed by a 9 millimeter bullet, which did not     erred when it admitted into evidence certain other bad acts,
come from the gun used by Ketchings.                              this error was determined to be harmless.)

  On April 30, 1997, Ketchings was convicted on a number             Ketchings sought habeas relief in the district court after
of charges arising out of his involvement in the drive-by         exhausting his state-court remedies. In a 51-page opinion, the
shooting. He was sentenced to concurrent terms of                 district court denied habeas relief with respect to all but the
imprisonment of 40 to 80 years for second-degree murder, 5        fifth of Ketchings’s claims: that the trial court improperly
                                                                  took Ketchings’s failure to admit guilt into account at
No. 03-1054                         Ketchings v. Jackson         5   6      Ketchings v. Jackson                         No. 03-1054

sentencing in violation of his Fifth Amendment rights. The             State-court findings of fact must be accepted unless
district court concluded that the Michigan Court of Appeals’s        rebutted by clear and convincing evidence. 28 U.S.C.
application of United States Supreme Court precedent in              § 2254(e)(1). We review the district court’s legal conclusions
evaluating Ketchings’s fifth claim was objectively                   de novo. Hudson v. Jones, 315 F.3d 212, 215 (6th Cir. 2003).
unreasonable. Ketchings’s petition for a writ of habeas
corpus was therefore conditionally granted, subject to an            B. The state court’s decision involved an unreasonable
appropriate resentencing by a state trial judge other than the       application of Supreme Court Precedent
one who originally imposed the sentence. The state appeals.
                                                                       The Michigan Court of Appeals’s entire discussion of
                       II. ANALYSIS                                  Ketchings’s Fifth Amendment claim is contained in the
                                                                     following paragraph:
A. Standard of review
                                                                            Defendant’s next claim of error on appeal is that the
   Ketchings filed his petition for a writ of habeas corpus after        trial court improperly took defendant’s failure to admit
the effective date of the Antiterrorism and Effective Death              guilt into account at sentencing. We disagree. A
Penalty Act of 1996, principally codified at 28 U.S.C.                   sentencing court cannot, in whole or in part, base its
§ 2254(d). Habeas relief may be granted only if the state                sentence on a defendant’s refusal to admit guilt. People
court’s decision either (1) “resulted in a decision that was             v. Yennior, 399 Mich. 892; 282 NW2d 920 (1977). See
contrary to, or involved an unreasonable application of,                 also People v. Adams, 430 Mich. 679, 687, n 6; 425
clearly established Federal law, as determined by the Supreme            NW2d 437 (1988). However, evidence of a lack of
Court of the United States; or (2) resulted in a decision that           remorse may be considered in determining an
was based on an unreasonable determination of the facts in               individual’s potential for rehabilitation. People v. Wesley,
light of the evidence presented in the State court proceeding.”          428 Mich. 708, 711; 411 NW2d 159 (1987) (opinion of
28 U.S.C. § 2254(d)(1)-(2).                                              Archer, J.). As previously explained by this Court in
                                                                         People v. Calabro, 166 Mich.App 389, 396; 419 NW2d
   The Supreme Court explained these concepts in Williams                791 (1988), “[A] defendant’s lack of remorse may be
v. Taylor, 529 U.S. 362, 412-13 (2000):                                  considered by a court in imposing sentence. It is
                                                                         undeniable that when a defendant is remorseful, it is
  Under the “contrary to” clause, a federal habeas court                 urged in mitigation by him or on his behalf, and it is
  may grant the writ if the state court arrives at a                     healthful to ventilate the process from both perspectives
  conclusion opposite to that reached by [the Supreme                    rather than to sanction the use in amelioration while
  Court] on a question of law or if the state court decides              condemning it in aggravation.” See also People v.
  a case differently than [the Supreme Court] has on a set               Houston, 448 Mich. 312, 323; 532 NW2d 508 (1995). In
  of materially indistinguishable facts.          Under the              this case, it is clear from our review of the full comments
  “unreasonable application” clause, a federal habeas court              made by the sentencing judge that the court was merely
  may grant the writ if the state court identifies the correct           addressing the factor of remorsefulness in the context of
  governing legal principle from [the Supreme Court’s]                   defendant’s rehabilitative potential and avoidance of
  decisions but unreasonably applies that principle to the               responsibility for his actions. There is no indication in
  facts of the prisoner’s case.                                          the record that defendant’s sentence was improperly
No. 03-1054                          Ketchings v. Jackson        7    8      Ketchings v. Jackson                         No. 03-1054

  influenced by his failure to admit guilt or that the court          objective review of the transcript makes clear that the
  was attempting to punish defendant for exercising his               sentencing judge was not, as the Michigan Court of Appeals
  constitutional right to maintain his innocence. Wesley,             found, “merely addressing the factor of remorsefulness in the
  supra; People v. Stewart (On Remand), 219 Mich.App                  context of defendant’s rehabilitative potential . . . .”
  38, 44; 555 NW2d 715 (1996); People v. Drayton, 168                 Ketchings, 1999 WL, at * 7. To the contrary, the relevant
  Mich.App 174, 178; 423 NW2d 606 (1988). We                          portion of the sentencing-hearing transcript reads as follows:
  therefore find no error.
                                                                            THE COURT: The first thing I have to say is that you
People v. Ketchings, 1999 WL 33437836, at * 7 (Mich. App.,                indicate to the Court that you’re not guilty. And as your
Aug. 20, 1999).                                                           lawyer will tell you and I’ll tell you one of the things the
                                                                          Judge considers in sentencing, in determining what the
   The Supreme Court has held that a defendant’s Fifth                    sentence should be is whether a person can be
Amendment right against self-incrimination “is fulfilled only             rehabilitated. But if you don’t think you did anything
when a criminal defendant is guaranteed the right ‘to remain              wrong to start with and you don’t accept what a jury says
silent unless he chooses to speak in the unfettered exercise of           –
his own will, and to suffer no penalty . . . for such silence.’”
Estelle v. Smith, 451 U.S. 454, 468 (1981) (quoting Malloy v.               DEFENDANT KETCHINGS: But –
Hogan, 378 U.S. 1, 8 (1964)). This guarantee extends to the
sentencing phase of the trial. Mitchell v. United States, 526               THE COURT: I’m just giving you my thinking now.
U.S. 314, 328-29 (1999) (“In accordance with the text of the              Can I talk? I didn’t interrupt you.
Fifth Amendment, we must accord the privilege the same
protection in the sentencing phase of ‘any criminal case’ as                DEFENDANT KETCHINGS: I understand.
that which is due in the trial phase of the same case.”).
                                                                             THE COURT: How can you be rehabilitated? How
  In its brief, the state “does not dispute . . . that a petitioner       can you ask me to put you back in the community? How
retains the privilege against compelled self-incrimination                do I know you’re not going to go back out and do
through the sentencing phase of criminal proceedings.” The                something else like this and say, hey, judge, I didn’t do
state instead argues that the “trial court never attempted to get         it. I wasn’t part of it.
Ketchings to admit his guilt.” Indeed, the Michigan Court of
Appeals found “no indication in the record that defendant’s                 We have and I don’t know if you’re ever heard me say
sentence was improperly influenced by his failure to admit                this, but the jury system, you, know, sometimes I like it
guilt or that the court was attempting to punish defendant for            and sometimes I don’t. But we’re one of the very few
exercising his constitutional right to maintain his innocence.”           countries in the world that has a jury, a judge of their
Ketchings, 1999 WL, at * 7.                                               peers. They’re people like you. They judge you. And
                                                                          I’m sort of upset that you don’t acknowledge that you did
  A state court’s findings of fact are binding in a federal               something wrong at this point.
habeas proceeding unless they are rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). The record in                                           ....
this case provides such clear and convincing evidence. An
No. 03-1054                         Ketchings v. Jackson         9   10   Ketchings v. Jackson                        No. 03-1054

    You see, to me, young people like you the key to                   with. . . . And the prosecutor, she don’t know me. She
  rehabilitating is say, hey, I did something wrong. I’m               really don’t. She can’t even see what type of character I
  sorry, man. I was in the car, it went over and shot an               am in the world. It’s just a bad situation that did happen.
  innocent child along with other people.                              I didn’t, you know --
                             ....                                         THE COURT: Don’t use that expression.
     All right. It’s an awesome power of a judge to                       DEFENDANT KETCHINGS: I’m sorry.
  sentence somebody. . . . And it’s a heavy responsibility
  and it’s not what I particularly like, but it has to be done            Everybody saying I’m just this awful person that I’m
  and it has to be done to punish and protect society, to              really not. And I’m quite sure if she knew me in the
  rehabilitate you which is why I said the statement I did in          world, she would be part of the persons who said I was
  the beginning. One of the issues we discussed here is                always a true friend to her and to the victim’s family.
  can you be rehabilitated? And you can’t be rehabilitated             And I feel that giving me 20, 40 years of incarceration
  if you say you didn’t do anything. You were here for this            that’s not going to bring the family members back or to
  trial.                                                               pay back with my heart. And I can’t feel how the family
                                                                       members feel for losing their child, but I can sympathize
  As the district court found, “the [sentencing] judge referred        because I would hate for that to happen to my son. And
negatively directly and indirectly to [Ketchings’s] continued          I can only imagine how they feel. I know that she’s truly
assertion of his belief in his innocence and implied that              upset, you know.
[Ketchings] would be sentenced more leniently if he accepted
the jury’s verdict, that is, if he gave up his Fifth Amendment            When this crime happened, my son was just born three
privilege to . . . refuse to admit guilt.” Further contradicting       days prior to this case. And I was very truly upset, you
the Michigan Court of Appeals’s characterization that the              know, to find out what had happened. And I just looked
sentencing judge was concerned only with Ketchings’s lack              at my son, and, you know, tears came from my eyes.
of remorse and not with his unwillingness to admit guilt is the        And I do, really do feel in my heart that I’m truly sorry
fact that Ketchings made a lengthy statement expressing his            for the family members at what happened. And, you
remorse immediately prior to the sentencing judge’s                    know, I do have a strong family background even though
comments quoted above. The relevant portion of the                     I made some wrong decisions in my life, you know. And
sentencing-hearing transcript reads as follows:                        my parents always taught me to be respectful to others,
                                                                       you.
    THE COURT: Okay. We’ve heard from everybody
  except you, Mr. Ketchings. Is there anything you want                   But, you know, I just can’t say nothing more. I’m
  to tell me before the Court imposes sentence?                        truly sorry.

    DEFENDANT KETCHINGS: Yes. I do have remorse                         The fact that the sentencing judge criticized Ketchings for
  for the family. I do like to apologize for the things that         his failure to admit guilt even after he made the above-quoted
  had happened and I am truly sorry. But I still feel that           remarks clearly contradicts the Michigan Court of Appeals’s
  I’m not guilty of this crime that I’ve been charged                finding that the sentencing judge concerned himself only with
No. 03-1054                       Ketchings v. Jackson      11

remorsefulness and not with the admission of guilt. In sum,
whether evaluated as “an unreasonable application of
[] clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or
as “an unreasonable determination of the facts in light of the
evidence,” 28 U.S.C. § 2254(d)(2), the Michigan Court of
Appeal’s opinion does not withstand constitutional scrutiny.
  The state, as a final point, raises the possibility that on
remand a sentence of 40 to 80 years for second-degree murder
might again be imposed based on other factors. That
outcome, although possible, is far from certain in light of the
Michigan Sentencing Guidelines. In addition, such a
possibility does not affect the appropriateness of resentencing
before another judge as the remedy for the Fifth Amendment
violation that occurred in this case.
                    III. CONCLUSION
  For all of the reasons set forth above, we AFFIRM the
judgment of the district court.
