                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 16a0099n.06

                                         No. 14-3070


                         UNITED STATES COURT OF APPEALS                           FILED
                              FOR THE SIXTH CIRCUIT                          Feb 16, 2016
                                                                         DEBORAH S. HUNT, Clerk
REGINALD CLEMENT,                               )
                                                )
       Petitioner-Appellant,                    )
                                                )
v.                                              )
                                                    ON APPEAL FROM THE UNITED
                                                )
                                                    STATES DISTRICT COURT FOR THE
BENNIE KELLY, Warden,                           )
                                                    NORTHERN DISTRICT OF OHIO
                                                )
       Respondent-Appellee.                     )
                                                )
                                                )

BEFORE:       DAUGHTREY, COOK, and WHITE, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Reginald Clement is an

Ohio state prisoner seeking federal habeas corpus relief based on the allegedly improper

admission of an involuntary statement he made while in the hospital and an alleged

Confrontation Clause violation, both of which occurred during his trial for the murder of

Gregory Williams.    A jury convicted Clement of aggravated murder, aggravated robbery,

kidnapping, and having a weapon while under disability, and the trial judge imposed a life

sentence.   The district court dismissed Clement’s habeas petition, concluding that relevant

rulings by the Ohio state courts were neither contrary to nor unreasonable applications of

established federal law. We agree and affirm.


                    FACTUAL AND PROCEDURAL BACKGROUND

       The events leading to Gregory Williams’s death began with a phone call to Williams,

asking him to bring marijuana to the home of brothers Dominic and Alfred Rodgers to sell to
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them and their cousin, Demetrius Williams, who was also present at the house. In point of fact,

the trio planned to rob Gregory Williams, and they invited Lavonte Green and petitioner

Reginald Clement to join them in the robbery. Both Green and Clement had guns.

        In the meantime, Gregory asked his friend Tramel Wallace to drive him to the Rodgerses’

house. When Wallace and Gregory pulled into the driveway, Green jumped into the back seat of

the car and pointed a gun at Gregory, who then climbed over the seat into the back of the car and

began to wrestle with Green for the gun. As they wrestled, the gun discharged, but no one was

hurt. Wallace quickly backed the vehicle out of the driveway, but when he stopped backing up

in order to drive forward, Clement stuck his arm in the passenger-side window and shot Gregory

in the chest as he struggled with Green. As Wallace drove away, Green jumped out of the car.

Wallace drove to a nearby police station to get help for Gregory, who later died from his wound.

Several days later, police questioned Clement in a local hospital, where he was being treated for

a gunshot wound to his leg, and took a statement from Clement, who denied shooting Gregory.

        An Ohio jury found Clement guilty of aggravated murder, aggravated robbery,

kidnapping, and having a weapon while under disability. He was sentenced to life imprisonment

with parole eligibility after 36 years.

        On direct appeal, Clement argued that the trial court erred (1) in admitting the written

statement he provided police while he was in the hospital in significant pain and on pain killers,

because it was involuntary under those circumstances and (2) in allowing the state to offer Alfred

Rodgers’s prior testimony from Green’s trial, including his statement implicating Clement as the

shooter, as substantive evidence of guilt. The Ohio Court of Appeals overruled both assignments

of error. The court first found no evidence to support the assertion that Clement’s statement was

involuntary or made without full awareness of the consequences and a valid waiver of his rights.


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The court further ruled that Alfred Rodgers’s prior testimony was not hearsay and could be

admitted as substantive evidence of guilt at trial because it had been made at Green’s trial six

weeks earlier under penalty of perjury and subject to cross-examination. The Ohio Court of

Appeals thus affirmed Clement’s conviction, and the Ohio Supreme Court denied further review.

See State v. Clement, No. 94869, 2011 WL 1168133 (Ohio Ct. App. Mar. 31, 2011); State v.

Clement, 949 N.E.2d 1005 (Table) (Ohio 2011).

       After Clement’s efforts to obtain relief through collateral state proceedings proved

unsuccessful, he filed a petition for a writ of habeas corpus in federal district court, in which he

raised 12 grounds for relief. Only two are at issue in this appeal: (1) “Petitioner was denied his

constitutional rights under the Fifth and Sixth Amendment[s] where any statement that he gave

to the police was involuntary and violated his constitutional rights,” and (2) “Petitioner was

denied his right of confrontation and cross-examination when the trial court allowed a statement

from a witness to be used as substantive evidence rather than limiting the use of that evidence to

impeachment only.”

       The matter was referred to a magistrate judge, who concluded that Clement procedurally

defaulted his Sixth Amendment claim regarding his hospital statement, a default that was not

excused by proof of actual innocence; that the state court reasonably determined that Clement’s

hospital statement was voluntary under the Fifth Amendment; and that the state court’s

admission of Alfred Rodgers’s prior testimony was not contrary to or an unreasonable

application of clearly established federal law. The district court adopted that recommendation,

denied the petition, and issued a certificate of appealability limited to Clement’s Confrontation

Clause claim. We then expanded the certificate of appealability to add his claim that his hospital

statement was obtained in violation of his Fifth Amendment rights.


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                                         DISCUSSION

       In a habeas proceeding, we review the district court’s legal conclusions de novo and its

findings of fact for clear error. Davis v. Lafler, 658 F.3d 525, 530 (6th Cir. 2011) (en banc).

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110

Stat. 1214 (1996), an application for a writ of habeas corpus may not be granted unless the state

court adjudication on the merits of the claim “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 “resulted in a decision that was based on an

unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Section 2254(d)’s “highly

deferential standard . . . demands that state-court decisions be given the benefit of the doubt.”

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (internal quotation marks and citations omitted).

       A state court’s decision is 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.”   Williams v. Taylor, 529 U.S. 362, 413 (2000).          A state court

unreasonably applies clearly established law if it identifies the correct legal principle but

unreasonably applies it to the facts of the case.      Id.   “For purposes of § 2254(d)(1), an

unreasonable application of federal law is different from an incorrect application of federal

law.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks and citation

omitted).

Involuntary Statement Claim

       Three days after Gregory Williams was murdered, Clement was questioned by Detective

Volek at a hospital, where Clement was being treated for a gunshot wound to his leg. Clement


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was under arrest at the time of questioning, and a deputy was stationed outside his room. When

he arrived at the hospital that day, Volek checked with the nurses and learned that Clement was

“okay for conversation.”     Medical records indicate that 30 minutes before Volek’s visit,

Clement’s self-reported pain level was eight on a scale of ten and that he had been given two

Percocet tablets. Nevertheless, Clement appeared alert, coherent, and engaged, and he was

talking with family when Volek entered his room. He was sitting up in bed, and he did not

grimace or groan during the interview. However, when asked whether he was hurting, Clement

said, “Yes.”

       Volek asked Clement’s family to leave the room, and they complied. He then read

Clement a form explaining his constitutional rights, and Clement answered that he understood

each of them. Clement also stated that he did not have any questions about the explanation of

rights, and he read and signed a waiver form. After orally answering Volek’s questions, Clement

indicated that he would like to make a written statement. Volek gave him a printed statement

form, which again explained his constitutional rights. Clement initialed the form to indicate that

he understood his rights, that he wished to make a statement, and that he was not presently under

the influence of alcohol, drugs, or narcotics. Clement then provided the following “very well-

written” statement in “very neat” penmanship:

       I was riding in the car with Lavonte [Green]. Demetrius Williams called me up to
       his friend’s house on South Green. When I got there, Demetrius and another guy
       was waiting on somebody to bring some kind of weed. Lavonte said he was
       going to rob the guy and I said, I’m leaving.

       I went across the street and got in my car and pulled off. Shortly after, Lavonte
       called and asked me to pick him up off Emerson Street. So I picked him up and
       he was upset but didn’t say much. So I was dropping him off, then when I was
       dropping him off, he said I left him for dead. I didn’t know what that meant and
       he just shot me in my right leg and I pulled off.

Volek’s entire interaction with Clement at the hospital lasted approximately 30 minutes.

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         The state trial court denied the motion to suppress Clement’s statement, noting that he

had initialed all of the questions regarding his rights and had given a detailed statement in his

own handwriting. The Ohio Court of Appeals affirmed the trial court’s decision to admit the

statement, applying the standards set forth in Miranda v. Arizona, 384 U.S. 436, 444 (1966)

(listing the particular warnings that must be given during a custodial interrogation before an

individual can waive his constitutional rights knowingly and intelligently), and Moran v.

Burbine, 475 U.S. 412, 421 (1986) (holding that a waiver of Miranda rights must be “the product

of a free and deliberate choice rather than intimidation, coercion, or deception,” and be “made

with a full awareness of both the nature of the right being abandoned and the consequences of

the decision to abandon it”). The Ohio Court of Appeals found no evidence of coercive activity

and concluded that there was no evidence to support a finding that Clement’s statement was

involuntary or made without full awareness of the consequences.

         Reviewing Clement’s habeas petition, the magistrate judge determined that Clement had

failed to identify any Supreme Court case law holding that the circumstances of his case required

a finding that his statement was per se involuntary and ruled that “the state court made a

reasonable determination of the facts and reasonably applied the constitutional standard in

determining that Clement’s waiver of his rights was voluntary.” Clement v. Kelly, 2013 WL

6048743, at *14 (N.D. Ohio Nov. 14, 2013). The district court subsequently noted that Clement

“ma[de] a good argument for why he could not voluntarily waive his rights under the

circumstances,” but concluded that the Ohio court had not unreasonably applied Supreme Court

precedent in finding to the contrary. Clement v. Kelly, 2013 WL 6837303 (N.D. Ohio Dec. 26,

2013).




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       In focusing on the validity of Clement’s waiver of his Miranda rights, the district court,

like the state courts, appears to have conflated the analysis of two distinct concepts of

voluntariness. The fundamental constitutional guarantee, and the one invoked by Clement in his

habeas petition, is the right to be free from coercion when giving a statement to law enforcement

officers. See Mallory v. Hogan, 378 U.S. 1, 7 (1964) (“[T]he admissibility of a confession in a

state criminal prosecution . . . is controlled by that portion of the Fifth Amendment to the

constitution of the United States commanding that no person ‘shall be compelled in any criminal

case to be a witness against himself.’”) (internal citations omitted). Thus, as the Mallory court

held, “the constitutional inquiry is . . . whether the confession was free and voluntary; that is, (it)

must not be extracted by any sort of threats or violence, nor obtained by any direct or implied

promises, however slight, nor by the exertion of any improper influence.” Id. (internal quotation

marks and citations omitted). It was apparently this guarantee that Clement intended to invoke

when he claimed in his habeas petition, as he had in state court, that “any statement that he gave

to the police was involuntary and violated his constitutional rights.”

       Two years after the Supreme Court decided Mallory, the Court crafted a prophylactic rule

in Miranda intended to implement the protection against self-incrimination. Miranda, 384 U.S.

at 444 (holding that “the prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the

use of procedural safeguards effective to secure the privilege against self-incrimination”). The

Court also held that the Miranda safeguards, including certain warnings about the use of any

resulting statement and the right to have an attorney present during questioning, can be waived,

but that the waiver must be made “knowingly and intelligently,” id. at 475, and the




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“relinquishment of the privilege” must be “voluntary.” Id. at 476. See also Moran, 475 U.S. at

421 (holding that a Miranda waiver must entail a “free and deliberate choice”).

       From this discussion, it is clear that two concepts of voluntariness are involved when the

admissibility of a confession is challenged: (1) the voluntary nature of the statement itself that

insures against coercion and (2) the voluntary nature of a Miranda waiver. Although Clement

did not raise a Miranda challenge in state or federal court, the voluntariness of his waiver before

giving a statement to police is relevant, because the Supreme Court has observed that a voluntary

Miranda waiver will generally defeat a claim that a subsequent statement was involuntary. See,

e.g., Missouri v. Seibert, 542 U.S. 600, 608-09 (2004) (plurality opinion) (“[G]iving the

warnings and getting a waiver has generally produced a virtual ticket of admissibility . . . and

litigation of voluntariness tends to end with the finding of a valid waiver.”).

       To the extent Clement suggests that his statement was involuntary regardless of any

Miranda waiver, this argument lacks merit. Clement cites several of the Supreme Court’s

voluntariness cases—Mincey v. Arizona, 437 U.S. 385 (1978); Jackson v. Denno, 378 U.S. 368

(1964); Townsend v. Sain, 372 U.S. 293 (1963); and Culombe v. Connecticut, 367 U.S. 568

(1961)—but does not explain how the Ohio Court of Appeals decision is contrary to or an

unreasonable application of those cases. In Culombe, for example, the Court held a statement

involuntary primarily because of a prolonged, four-day interrogation. Culombe, 367 U.S. at 628-

35. Here, by contrast, the police officer spoke with Clement for only half an hour. The issue in

Townsend was whether a statement can be voluntary after a defendant is given “a drug having

the effect of a ‘truth serum.’” Townsend, 372 U.S. at 307-08. That issue is not relevant in

Clement’s case. And, in Jackson, the Court considered only whether a defendant was entitled to

a hearing on the voluntariness of a confession. Jackson, 378 U.S. at 391-96.


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       Mincey presents an even clearer contrast to the case at hand. There, the defendant

sustained serious injuries during an exchange of gunfire with law enforcement and arrived at the

hospital virtually comatose. Mincey, 437 U.S. at 398. Only hours after he was shot, police

began questioning him while he was in an intensive care unit and able to respond only in writing

because a tube in his throat prevented him from speaking. Id. at 396, 398-99. Mincey was

“evidently confused and unable to think clearly” and complained of “unbearable” pain. Id. at

398. He had received Miranda warnings but “asked repeatedly that the interrogation stop until

he could get a lawyer.” Id. at 396. By contrast, Clement had been injured several days earlier,

appeared alert and responsive, and never signaled any resistance to interrogation. Clement chose

to waive his Miranda rights and affirmatively agreed to supply a statement in his own

handwriting. Because of these significant differences, Mincey cannot provided Clement with a

basis for relief under the deferential standard of AEDPA.

       Nor can Clement rely on Mincey to support his argument that the Ohio Court of Appeals

erred by failing to conduct an independent evaluation of the record and to consider the totality of

the evidence in concluding that his statements to the police were voluntary. In Mincey, the

Supreme Court noted its “duty to make an independent evaluation of the record” to explain why

it was not bound on direct review by a state-court determination that a confession was voluntary.

Here, the Ohio court cited relevant Supreme Court opinions addressing Miranda waivers and

reasonably applied the law to the facts of this case. Moreover, we reject Clement’s assertion that

the state court failed to conduct an independent evaluation of the record, because the record

before us confirms that the appellate court actually undertook an independent review of the trial

court record. Its analysis set out the facts that supported its conclusion and was significantly

more detailed than the trial court’s ruling on the motion to suppress. Such an explicit statement


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of the facts could only have come from an independent review of the record. Thus, the Ohio

Court of Appeals did not rely unreasonably on the trial court’s findings.

       Clement’s argument that the magistrate judge improperly deferred to the Ohio court’s

rulings also lacks merit. The judge’s habeas review conformed to the highly deferential standard

required by § 2254(d)(1) and the Supreme Court cases interpreting that section. We are bound

by the same standard and, like the magistrate judge and the district court in adopting the

magistrate judge’s report, we cannot say that the Ohio court’s application of the law to the facts

of this case was unreasonable. As the magistrate judge noted, there is no Supreme Court

precedent requiring a finding that Clement’s statement was per se involuntary under the

circumstances. Moreover, although the district judge observed that Clement “ma[de] a good

argument” that his statement could be deemed involuntary given his medical condition at the

time, federal habeas relief is precluded as long as “fairminded jurists could disagree on the

correctness of the state court’s decision.” Harrington, 562 U.S. at 101 (internal quotation marks

and citation omitted).

       In sum, the determination by the Ohio Court of Appeals that Clement’s statement was

voluntary and knowing was neither contrary to nor an unreasonable application of federal law.

Confrontation Clause Claim

       The state called Alfred Rodgers as a witness in both Green’s and Clement’s trials. Alfred

Rodgers had entered a plea agreement in which he promised to testify truthfully for the

prosecution in exchange for an 18-year sentence for his role in the offense. He testified during

Green’s trial that he saw Clement follow Wallace’s car down the driveway and point a gun in the

window. However, at Clement’s trial six weeks later, Rodgers claimed that he could not

remember this or many of the other events about which he had testified previously. The state


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then received permission to treat Alfred Rodgers as a hostile witness and to read portions of his

testimony from Green’s trial into the record.

        Clement’s attorney cross-examined Alfred Rodgers at length. Defense counsel elicited a

statement from him that because he had made a plea deal with the prosecution, his testimony at

Green’s trial was what he thought the prosecutor wanted to hear. Counsel then pursued a line of

questioning that sought to implicate Dominic Rodgers as the shooter and to imply that Alfred

Rodgers had previously identified Clement as the shooter simply to protect Dominic, his younger

brother. The Ohio Court of Appeals held that Alfred Rodgers’s prior testimony was not hearsay

and could be admitted as substantive evidence of guilt because it was given under oath and was

subject to cross-examination by the party against whom it was offered.

        The Sixth Amendment affords criminal defendants the right to confront the witnesses

against them. U.S. Const. amend. VI. Under the Confrontation Clause, a testimonial statement

of a witness who does not testify at trial cannot be admitted unless the witness is unavailable and

the defendant has had a prior opportunity to examine the witness. Crawford v. Washington,

541 U.S. 36, 59 (2004). However, “when the declarant appears for cross-examination at trial, the

Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”

Id. at 59 n.9 (citing California v. Green, 399 U.S. 149, 162 (1970)). “The [Confrontation]

Clause does not bar admission of a statement so long as the declarant is present at trial to defend

or explain it.” Id.

        We conclude that the admission of Alfred Rodgers’s prior sworn testimony did not

present a Confrontation Clause problem under clearly established Supreme Court precedent

because he was present at Clement’s trial and was cross-examined by Clement’s attorney during

trial. Clement argues that Douglas v. Alabama, 380 U.S. 415 (1965), a case in which the


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declarant was present at trial but invoked his privilege against self-incrimination and refused to

answer questions on direct- or cross-examination, governs this case. Unlike the declarant in

Douglas, however, Alfred Rodgers did not claim the privilege against self-incrimination or

refuse to answer questions on cross-examination.

       We also reject Clement’s argument that Alfred Rodgers’s professed lack of memory

made him effectively unavailable for cross-examination. The record shows that he responded to

defense counsel’s questions and claimed not to remember only whether he pleaded guilty to a

gun specification and whether he pleaded guilty to aggravated robbery. But Rodgers readily

answered defense counsel’s questions about the events surrounding Gregory Williams’s death.

Thus, he was not effectively unavailable for cross-examination; indeed, he was cross-examined

thoroughly by Clement’s attorney at Clement’s trial.          We conclude that the Ohio court’s

determination that Alfred Rodgers’s prior testimony was admissible was neither contrary to nor

an unreasonable application of federal law.

                                          CONCLUSION

       Because we cannot say that the Ohio court’s determinations that Clement’s statement was

voluntary and that Rodgers’s prior testimony was admissible were contrary to or unreasonable

applications of federal law, it follows that the district court correctly denied habeas relief in this

case. We therefore AFFIRM the judgment of the district court.




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