           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206
        ELECTRONIC CITATION: 2000 FED App. 0177P (6th Cir.)
                    File Name: 00a0177p.06


UNITED STATES COURT OF APPEALS
                  FOR THE SIXTH CIRCUIT
                    _________________


                                  ;
                                   
 CHRISTOPHER MACHACEK,
                                   
        Petitioner-Appellant,
                                   
                                   
                                      No. 98-1815
           v.
                                   
                                    >
 GERALD HOFBAUER, Warden, 
        Respondent-Appellee. 
                                  1
      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.
   No. 97-71761—Nancy G. Edmunds, District Judge.
                    Argued: March 15, 2000
               Decided and Filed: May 26, 2000
Before: MERRITT, DAUGHTREY,  and MAGILL, Circuit
                    Judges.*
                      _________________
                           COUNSEL
ARGUED: Don Ferris, FERRIS & SALTER, Ann Arbor,
Michigan, for Appellant. Laura Graves Moody, OFFICE OF
THE ATTORNEY GENERAL, HABEAS CORPUS

    *
    The Honorable Frank J. Magill, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.

                                 1
2       Machacek v. Hofbauer                          No. 98-1815       No. 98-1815                      Machacek v. Hofbauer       15

DIVISION, Lansing, Michigan, for Appellee. ON BRIEF:                                        ________________
Don Ferris, FERRIS & SALTER, Ann Arbor, Michigan, for
Appellant. Laura Graves Moody, OFFICE OF THE                                                    DISSENT
ATTORNEY GENERAL, HABEAS CORPUS DIVISION,                                                   ________________
Lansing, Michigan, for Appellee.
                                                                           MERRITT, Circuit Judge, dissenting. I disagree with
  MAGILL, J., delivered the opinion of the court, in which              Section V of the Court’s opinion. As the Court’s quotation of
DAUGHTREY, J., joined. MERRITT, J. (p. 15), delivered a                 the transcript sets out, the detective who interrogated
separate dissenting opinion.                                            Machacek asked him to sign “directly below . . . a paragraph
                                                                        that is called Waiver of Rights” which says “I have read . . .
                      _________________                                 my rights, and . . . I waive them . . .” Immediately following
                                                                        this request for Machacek to sign the waiver, the detective
                          OPINION                                       said “we’re not asking you to waive or give up any of your
                      _________________                                 rights or anything of that nature.” This latter statement was
                                                                        false and in my opinion constitutes a blatant violation of
  MAGILL, Circuit Judge. Christopher Machacek appeals                   Miranda. The same detective then told Machacek the same
the district court's1 denial of his application for a writ of           thing again, a second time: “[Signing the waiver] is not
habeas corpus following his conviction for first degree murder          waiving anything,” he said. Machacek then signed the
in a Michigan state court. At the district court level,                 waiver. Although I am certainly not anxious to reverse this
Machacek argued that the Michigan trial court erred in                  case, I do not see how we can say anything other than that we
admitting an incriminating statement obtained in violation of           cannot sanction this classic violation of Miranda. Maybe a
his Fourth, Fifth and Sixth Amendment rights. The district              detailed harmless error analysis could sustain the state
court denied Machacek's petition, finding his Fourth                    conviction, but I cannot go along with my colleagues’ view
Amendment claim barred by Stone v. Powell, 428 U.S. 465                 that no constitutional error happened. Machacek only signed
(1970), and his other claims to be meritless. For reasons to be         the waiver of rights after being twice told he was waiving
discussed, we affirm.                                                   nothing. In other words, he was falsely told that he could talk
                         I. Background                                  and get it off his chest without running the risk of
                                                                        incriminating himself. I agree with the rest of the Court’s
  On December 30, 1986, petitioner Christopher Machacek                 opinion.
and Steven Stamper, both sixteen years old at the time, took
Mary Ann Hulbert, who was thirteen years old, into the
woods near Ann Arbor, Michigan, and shot her several times.
Her body was found by two hunters on January 7, 1987. An
autopsy performed on January 8, 1987, revealed that Mary
Ann had been shot seven times from both the front and back,
with the death bullet penetrating her heart and lungs.

    1
     The Honorable Nancy G. Edmunds, United States District Judge for
the Eastern District of Michigan.
14   Machacek v. Hofbauer                   No. 98-1815    No. 98-1815                        Machacek v. Hofbauer          3

                    VI. Conclusion                            After the body of Mary Ann was discovered on January 7,
                                                           1987, police went to Machacek's house and requested that
  For the aforementioned reasons, we affirm the district   Diana McKenzie, Machacek's foster mother, bring him to the
court's denial of habeas relief to petitioner.             station. Ms. McKenzie agreed and escorted Machacek to the
                                                           station.    At the station, Detective Sergeant William
                                                           McFarlane took Ms. McKenzie aside and told her that Mary
                                                           Ann had been murdered. Ms. McKenzie then gave the police
                                                           permission to talk to petitioner.
                                                             At 7:20 p.m., the formal interview began with Ms.
                                                           McKenzie present. Because petitioner challenges the
                                                           knowing and voluntary nature of his waiver of his Fifth and
                                                           Sixth Amendment rights, we quote excerpts    from the audio
                                                           recordings of his interview at some length.2
                                                           Detective Stamper: This is a statement of your Miranda
                                                                              rights. Number One: You have the right
                                                                              to remain silent, which means you don't
                                                                              have to talk to us if you don't want to.
                                                                              Do you understand that one?
                                                           Machacek:             Yes.
                                                           Detective Stamper: Number Two: Anything you say can and
                                                                              will be used against you in a courtof law.
                                                                              Do you understand that one?
                                                           Machacek:             Yes.
                                                           Detective Stamper: Number Three: You have the right to
                                                                              talk to a lawyer and have him present
                                                                              with you while you are being questioned.
                                                                              Do you understand that one?
                                                           Machacek:             Yes.



                                                               2
                                                               We note that some of the audio recordings were made without the
                                                           knowledge of the questioning officers.
4    Machacek v. Hofbauer                       No. 98-1815     No. 98-1815                          Machacek v. Hofbauer           13

Detective Stamper: Number Four: If you cannot afford to            Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare
                   hire a lawyer, one will be appointed to      v. Michael C., 442 U.S. 707, 725 (1979)). "Whether a waiver
                   represent you before any questioning, if     is knowing and intelligent is determined by the particular
                   you wish. Do you understand that?            facts and circumstances of the case, 'including the
                                                                background, experience, and conduct of the accused.'" See
Machacek:           Yes.                                        United States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir. 1990)
                                                                (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). After
Detective Stamper: Number Five: You can decide at any           extensive hearings, the state trial court determined that both
                   time to exercise these rights and not        Machacek and his legal guardian made the final decision to
                   answer any question or make any              waive his Miranda rights freely and with full understanding.
                   statements. Do you understand that?
                                                                   We agree with the Michigan court. Assuming that
Machacek:           Yes.                                        Detective Stamper may have somehow mislead Machacek
                                                                about the consequences of signing the waiver card, police did
Detective Stamper: Directly below is a paragraph that is        not treat the signing of the card as a waiver of Machacek's
                   called Waiver of Rights. It says, "I have    rights. Rather, after Machacek signed the waiver card,
                   read the above statement of my rights        Detective Fulcher emphasized that Machacek's signature
                   and I understand each of these rights        merely indicated his understanding of his legal rights. After
                   and having these rights in mind, I waive     confirming that Machacek understood his rights, Detective
                   them and willingly make a statement."        Fulcher specifically asked Machacek whether he wanted to
                                                                make a statement without an attorney being present.
                    We're not asking you to waive or give up    Machacek agreed and admitted his involvement     in the brutal
                    any of your rights or anything of that      murder of young Mary Ann Hulbert.4
                    nature. Okay?
                                                                  Based on the "totality of the circumstances" surrounding
Machacek:           Yes.                                        Machacek's waiver, we find that the Michigan courts'
Detective Stamper: Can you read?                                determination that Machacek knowingly and voluntarily
                                                                waived his Miranda rights was not an unreasonable
Machacek:           Yes.                                        application of Supreme Court precedent. The audio
                                                                recordings of Machacek's interview firmly convince us that
Detective Stamper: What I would like for you to do and          both Machacek and his foster mother knowingly and
                   don't get offended when I ask that           intelligently waived his Fifth and Sixth Amendment rights.
                   because some people can't. What I
                   would like you to do is read those over
                   and make sure they read exactly the way
                   that I read them to you. Make sure you
                   understand them thoroughly. Then if
                   you do, I would ask you to sign it on that       4
                   line that says, Signature, and your               The record shows that Machacek had extensive contacts with the
                   guardian-mother to sign underneath.          juvenile justice system and, thus, was not naive about the consequences
                                                                of waiving his Fifth and Sixth Amendment rights.
12   Machacek v. Hofbauer                       No. 98-1815     No. 98-1815                    Machacek v. Hofbauer       5

"unreasonable application" of Supreme Court precedent.                             Your signature is not an admission of
Thus, we must reject petitioner's request for habeas relief                        anything. It is not waiving anything. It
based on an alleged violation of his right to counsel.                             merely indicates that you have been read
                                                                                   your rights and you do understand each
           V. Valid Waiver Of Miranda Rights                                       one of them.
  In his habeas appeal, petitioner also argues that the         Mrs. McKenzie:     Should . . . We're going to have to get a
Michigan state courts erroneously found that Detective                             lawyer then and should his mother be
Stamper's misleading statements about the significance of                          notified?
signing a waiver card did not render his waiver of Fifth
Amendment rights invalid. Although we agree that Detective      Detective Fulcher: Are you his legal guardian?
Stamper's statements were less than appropriate, we find the
Michigan court's decision to be an "objectively reasonable"     Ms. McKenzie:      Right now, yes.
application of clearly established Supreme Court precedent,
and, thus, affirm the district court's denial of petitioner's   Detective Fulcher: Are you indicating that you don't want
request for habeas relief.                                                         him to talk to us without an attorney
                                                                                   being present?
   In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court held that the privilege against self-incrimination        Ms. McKenzie:      Well, what do you suggest? I've never
protects individuals from "informal compulsion exerted by                          been through this.
law-enforcement officers during in-custody questioning."
Id. at 461. Unless a suspect knowingly, voluntarily, and        Detective Fulcher: It's not up to me. It is one-hundred
intelligently waives these rights, a court will exclude                            percent yours and Chris' decision.
statements made as a result of an involuntary waiver. See
Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990). In                                ...
determining whether a suspect has validly waived his rights,    Ms. McKenzie:      Well, does he have to sign that before
a trial court should consider the following factors:                               our lawyer is here?
    First, the relinquishment of the right must have been       Detective Fulcher: He doesn't have to sign anything. We
  voluntary in the sense that it was the product of a free                         are asking him to sign it, if he
  and deliberate choice rather than intimidation, coercion                         understands his rights.
  or deception. Second, the waiver must have been made
  with full awareness both of the nature of the right being       Questioning stopped at this point and Ms. McKenzie left
  abandoned and the consequences of the decision to             the room to talk to her ex-husband. Ms. McKenzie returned
  abandon it. Only if the "totality of the circumstances        to the room approximately five minutes later and the
  surrounding the investigation" reveal both an uncoerced       following conversation took place.
  choice and the requisite level of comprehension may a
  court properly conclude that the Miranda rights have          Detective Fulcher: Chris, we have talked about your rights.
  been waived.                                                                     You have signed the form and you are
                                                                                   indicating that you do understand your
6    Machacek v. Hofbauer                       No. 98-1815      No. 98-1815                      Machacek v. Hofbauer        11

                    rights and you would like to talk to us      1522. Thus, even if we believe that a state court incorrectly
                    about the death of Mary.                     applied federal law, we must refuse to issue the writ of habeas
                                                                 corpus if we find that the state court's decision was a
Machacek:           Yes.                                         reasonable one. Given the facts of this case, we have little
                                                                 trouble deciding that the Michigan court's decision was
Detective Fulcher: And Mrs. McKenzie, do you understand          "objectively reasonable" in light of clearly established federal
                   his rights and you are allowing him to        law.
                   talk to us about that now?
                                                                    Machacek argues that Ms. McKenzie, his legal guardian,
Mrs. McKenzie:      Um-humm.                                     invoked his right to counsel by making the following remark,
                                                                 "Should . . . We're going to have to get a lawyer then and
Detective Fulcher: We haven't threatened anyone or made          should his mother be notified?" In light of the Supreme
                   any promises or anything of that nature?      Court's decision in Davis v. United States, 512 U.S. 452
                                                                 (1994), we reject petitioner's argument. In Davis, the Court
Ms. McKenzie:       No, but I just want Chris to tell the        held that a suspect "must unambiguously request counsel."
                    honest-to-god truth of what he knows         Id. at 459. Thus, "if a suspect makes a reference to an
                    and you can take a lie detector's test and   attorney that is ambiguous or equivocal in that a reasonable
                    that would maybe clear it.                   officer in light of the circumstances would have understood
Detective Fulcher: Do you feel that we have threatened or        only that the suspect might be invoking the right to counsel,
                   intimidated you in any way to get you to      our precedents do not require the cessation of questioning."
                   talk to us, Chris?                            Id. The Court ultimately held that the suspect's statement,
                                                                 "Maybe I should talk to a lawyer," was equivocal, and, thus,
Machacek:           No.                                          police were allowed to continue questioning the suspect.
                                                                 Id. at 462.
  At this point, Ms. McKenzie asked petitioner whether he
told anyone that he had access to her husband's Chevy Blazer.      In light of Davis, the Michigan court's finding that Ms.
The officers discussed the issue with Ms. McKenzie before        McKenzie did not invoke the right to counsel was
continuing with the following conversation.                      "objectively reasonable." Her equivocal statement began and
                                                                 ended as if she were asking the police a question. After Ms.
Detective Fulcher: Chris, I would like to refresh you            McKenzie ambiguously suggested that she might want
                   memory about the rights. The blue form        counsel present during questioning, police immediately
                   that you signed – I will lay it in front of   stopped questioning Machacek and asked Ms. McKenzie to
                   you. It indicates all those rights. Do        clarify whether she was invoking Machacek's right to counsel.
                   you recall reading me those rights to you     Ms. McKenzie's response indicated that she was very
                   a short time ago or Detective Stamper, I      uncertain about whether she wanted counsel present. Before
                   should say, reading the rights to you?        continuing the questioning, police allowed Ms. McKenzie to
                                                                 leave the room and discuss the matter with her ex-husband.
Machacek:           Yes.                                         Upon her return, she unequivocally consented to proceeding
                                                                 without having a lawyer present. Given the facts of this case,
Detective Fulcher: Do you still understand your rights?          we cannot say the state trial court's determination was an
10   Machacek v. Hofbauer                         No. 98-1815      No. 98-1815                          Machacek v. Hofbauer            7

    (d) An application for a writ of habeas corpus on              Machacek:              Yes.
  behalf of a person in custody pursuant to the judgment of
  a State court shall not be granted with respect to any           Detective Fulcher: Having those rights in mind, do you still
  claim that was adjudicated on the merits in State court                             want to make a statement without your
  unless the adjudication of the claim–                                               attorney being present now?
    (1) resulted in a decision that was contrary to, or            Machacek:              Yes.
  involved an unreasonable application of, clearly
  established Federal law, as determined by the Supreme              After agreeing to make a statement to the officers,
  Court of the United States . . . .                               Machacek described the murder of Mary Ann, implicating
                                                                   Steven Stamper as the one who pulled the trigger. Machacek
28 U.S.C. § 2254(d). After we heard oral arguments in this         told police how the two boys took Mary Ann to the woods,
case, the Supreme Court resolved some confusion among the          blindfolded her, placed her up against a tree, and shot her
circuits by holding that section 2254(d)'s "contrary to" and       numerous times as she ran trying to escape from her
"unreasonable application" clauses          have independent       abductors. After shooting and killing the young girl,
meanings. See Williams v. Taylor, 120 S.Ct. 1495, 1519             Machacek helped Stamper drag Mary Ann's body through the
(2000). With respect to the first of the two statutory clauses,    woods and dump her in some bushes.
the Court held that a state court decision can be "contrary to"
clearly established federal law if the state court arrives at a                          II. Procedural History
conclusion opposite to that reached by the Supreme Court on
a question of law. See id. A state court decision can also be        In determining whether to exclude Machacek's
"contrary to" Supreme Court precedent if the state court           incriminating statements, the Michigan trial court held a
confronts facts that are materially indistinguishable from a       Walker hearing3 and listened to the tape recordings of
relevant Supreme Court precedent and arrives at an opposite        Machacek's interview. The trial court concluded:
result. See id. Because none of Machacek's claims implicate
the "contrary to" clause of this provision, we will evaluate his     In this case, Defendant Machacek was informed of his
claims under the "unreasonable application" prong.                   Miranda rights in the presence of his foster mother,
                                                                     Diana McKenzie. It is clear that he and she understood
   In Williams, the Court held that an "unreasonable                 those rights. She was given the opportunity to discuss
application" of clearly established federal law established by       these rights and whether or not an attorney should be
Supreme Court precedent occurs if "the state court identifies        called with her ex-husband. During this time Defendant
the correct governing legal rule from [the Supreme Court's]          Machacek was not being questioned and could reflect on
cases but unreasonably applies it to the facts of the particular     whether he wanted to proceed. The record shows that the
state prisoner's case." Id. at 1520. Thus, "a federal habeas         final decision was made freely with full understanding.
court making the 'unreasonable application' inquiry should ask
whether the state court's application of clearly established
federal law was objectively reasonable." Id. Although the
Court failed to specifically define "objectively reasonable," it
observed that "an unreasonable application of federal law is           3
                                                                         A Walker hearing is a hearing held in the Michigan state courts,
different than an incorrect application of federal law." Id. at    outside the presence of the jury, to determine whether a confession was
                                                                   voluntarily made. See People v. Walker, 374 Mich. 331 (1965).
8      Machacek v. Hofbauer                       No. 98-1815     No. 98-1815                       Machacek v. Hofbauer         9

On appeal, the Michigan Court of Appeals affirmed the trial        III. Stone v. Powell Bars Petitioner's Fourth Amendment
court's ruling, finding that:                                                                Claim
    Our review of the record, which includes audio tapes             Petitioner's Fourth Amendment claim is not reviewable. A
    made without the knowledge of the officers questioning        habeas petitioner may not seek habeas relief on a claim of
    defendant, leaves us convinced that defendant's statement     illegal arrest if he had a full and fair opportunity to raise the
    was voluntarily made, that his rights were scrupulously       claim in state court and presentation of the claim was not
    honored, and that both he and his foster mother               thwarted by any failure of the state's corrective processes. See
    knowingly and intelligently waived his right to remain        Stone v. Powell, 428 U.S. 465, 494-95 (1976). In Riley
    silent and to have an attorney present during the             v.Gray, 674 F.2d 522 (6th Cir. 1982), we set forth two distinct
    questioning. We therefore find the remainder of               inquiries a court must perform when determining whether a
    defendant's claims regarding the admissibility of his         petitioner may raise a claim of illegal arrest in a habeas
    statement to be without merit.                                action. First, the "court must determine whether the state
                                                                  procedural mechanism, in the abstract, presents the
  On September 14, 1988, a jury convicted Machacek of first       opportunity to raise a fourth amendment claim. Second, the
degree murder. He was sentenced to a mandatory life               court must determine whether presentation of the claim was
sentence without possibility of parole. On April 4, 1989,         in fact frustrated because of a failure of that mechanism." Id.
Machacek filed a claim of appeal with the Michigan Court of       at 526. Because Machacek concedes that Michigan has a
Appeals challenging the trial court's refusal to suppress the     procedural mechanism which presents an adequate
incriminating statement he made to police on January 7, 1987.     opportunity to raise his Fourth Amendment claims, he must
Machacek also appealed the trial court's finding that officers    establish that a failure of that procedural mechanism
had probable cause to believe that he was guilty of murder.       somehow prevented him from litigating his claims.
On February 17, 1993, the Michigan Court of Appeals
affirmed Machacek's conviction. The Michigan Supreme                In this case, the record reflects that petitioner was able to
Court denied his application for leave to appeal the appellate    present his Fourth Amendment claims to the Michigan courts
court's decision.                                                 and that these claims were carefully considered and rejected
                                                                  at the trial level and on appeal. Machacek may be
   On April 21, 1997, Machacek filed for a writ of habeas         disappointed with his inability to persuade the Michigan
corpus with the United States District Court for the Eastern      courts that his statement was the product of an illegal arrest,
District of Michigan, arguing that the Michigan court erred in    but the record clearly shows that he received all the process he
allowing an incriminating statement obtained in violation of      was due. Accordingly, any claims concerning the validity of
his Fourth, Fifth and Sixth Amendment rights to be                his arrest are not cognizable on habeas review under the
introduced into evidence at trial. On June 30, 1998, the          doctrine of Stone v. Powell.
district court denied his petition for a writ of habeas corpus.
This appeal followed. For reasons to be discussed, we affirm                IV. Failure To Invoke Right To Counsel
the district court's ruling in its entirety.
                                                                    Machacek filed his petition after the effective date of the
                                                                  Antiterrorism and Effective Death Penalty Act (AEDPA), 28
                                                                  U.S.C. § 2254(d). Thus, the district court's review was
                                                                  limited to the standards of review set out in the AEDPA as
                                                                  follows:
