                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0068p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                        Petitioner-Appellee, -
 STEPHEN MICHAEL FLEMING,
                                                 -
                                                 -
                                                 -
                                                     No. 07-2311
          v.
                                                 ,
                                                  >
                                                 -
                      Respondent-Appellant. -
 LINDA METRISH, Warden,
                                                 -
                                                N
                  Appeal from the United States District Court
                 for the Eastern District of Michigan at Detroit.
                No. 04-72365—Arthur J. Tarnow, District Judge.
                                Argued: October 30, 2008
                         Decided and Filed: February 25, 2009
                Before: CLAY, GILMAN, and ROGERS, Circuit Judges.

                                   _________________

                                        COUNSEL
ARGUED: Janet A. VanCleve, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellant. Douglas W. Baker, STATE APPELLATE DEFENDER
OFFICE, Detroit, Michigan, for Appellee. ON BRIEF: Raina I. Korbakis, OFFICE OF
THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellant. Douglas
W. Baker, STATE APPELLATE DEFENDER OFFICE, Detroit, Michigan, for Appellee.
      GILMAN, J., delivered the opinion of the court, in which ROGERS, J., joined.
CLAY, J. (pp. 24-55), delivered a separate opinion concurring in part and dissenting in part.
                                   _________________

                                        OPINION
                                   _________________

        RONALD LEE GILMAN, Circuit Judge. Stephen Michael Fleming was convicted
of second-degree murder and a related firearm offense. He was sentenced to life in prison
on the two charges. Fleming then petitioned for state postconviction relief, but was turned
down at all levels of the state judiciary. He subsequently sought habeas corpus relief in


                                             1
No. 07-2311         Fleming v. Metrish                                                 Page 2


federal court, arguing that the state trial court erred by denying a motion to suppress his
confession and by not allowing him to call a witness who purportedly would have aided his
defense. The district court conditionally granted his petition for a writ of habeas corpus. For
the reasons set forth below, we REVERSE the judgment of the district court and REMAND
the case with instructions to deny Fleming’s petition.

                                    I. BACKGROUND

A.      Factual background

        Scott York was found dead in the woods of Moffat Township, Michigan on
October 21, 1999. York had been shot both in the face and in the back of the head. In early
November 1999, Fleming’s brother provided Detective Robert Lesneski with information
that led Lesneski to conclude that Fleming was involved in York’s death. Fleming’s brother
persuaded Fleming to explain his connection with York to Lesneski. Lesneski subsequently
arranged a meeting with Fleming.

        During the meeting, Fleming told Detective Lesneski that he had picked up a
hitchhiker on October 21, 1999. The hitchhiker and Fleming proceeded to a store to
purchase alcoholic beverages and then left to drink together. Fleming told Lesneski that he
later dropped off the hitchhiker somewhere near Sterling, Michigan. Lesneski showed
Fleming a photograph of a man and asked whether it depicted the hitchhiker. After Fleming
said that it did, Lesneski identified the man in the photo as York.

        The police subsequently obtained a search warrant for Fleming’s residence and other
buildings on his farm in mid-November 1999. Upon arriving at Fleming’s residence,
Detective Lesneski said that Fleming was “very cooperative” and even told the officers about
illegal drugs that were located on the property. After finding the drugs, Lesneski approached
Fleming to “read him his rights” and to ask if Fleming would speak with him. Fleming
refused to answer “questions about that fucking homicide or homosexual activity,” and then
said that he was “not going to be one of the guys that you hear about in 60 minutes, that went
to jail for something he didn’t do.” Lesneski subsequently placed Fleming under arrest for
possessing illegal drugs and had him put in the back seat of a police squad car. The detective
No. 07-2311         Fleming v. Metrish                                                      Page 3


estimated that Fleming was placed in the car between 1:00 and 1:30 p.m. A search continued
on Fleming’s property for evidence relating to York’s death.

       Approximately one hour later, Fleming was taken from the squad car to a narcotics
van to sit with Officer Robert Clayton, where Fleming would sit for roughly two hours.
Fleming and Officer Clayton engaged in “small talk” until Detective Lesneski approached
the van and smiled. Clayton surmised that something “positive” had happened. Indeed, the
police had found the murder weapon and were therefore “quite excited.”

       Officer Clayton next told Fleming that things did not look good for him and that
“maybe he needed to do the right thing.” Fleming testified, on the other hand, that Clayton
told him that “it’s obviously not a good sign for you,” and that “[i]f you have a chance at
anything, . . . I would [] strongly recommend that you get with the program is my advice.”
Clayton denied ever telling Fleming “[t]o get with the program.” There is no dispute,
however, that between one and five minutes later Clayton asked whether Fleming wished to
speak with Detective Lesneski. Fleming agreed to do so. Shortly thereafter, Lesneski took
Clayton’s place in the van.

       Detective Lesneski testified that he did not ask any questions or begin an
interrogation when he entered the van. He said that Fleming began to weep. Lesneski then
moved the van out of view of the other officers who were in the vicinity because Fleming
did not want them to see him crying. After Lesneski moved the van, Fleming said that he
felt hot and nauseous. Lesneski opened the van’s doors for Fleming so that he could get
some air. After asking for “a couple of minutes” to “get [his] head straight,” Fleming
confessed to York’s murder. Fleming then asked Lesneski whether the police had found the
gun. Lesneski replied that they had.

       Detective Leskneski maintains that he let Fleming speak without interruption until
he was finished. Lesneski said that he then told Fleming the following:

       I read you your rights once today, . . . and you didn’t want to talk to me . . . .
       Now I am required by law to read you your rights. I have to protect you.
       My job is to protect you and I need to do that. I don’t want you waking up
       tomorrow feeling sorry for something you did or didn’t say.
No. 07-2311         Fleming v. Metrish                                                 Page 4


Lesneski proceeded to read Fleming his Miranda rights for the second time. Fleming
acknowledged that he understood his rights. Lesneski then questioned Fleming about York’s
death. In response, Fleming provided “far more information” about the circumstances
surrounding the killing. Approximately an hour later, Detective Lesneski tape recorded
Fleming’s confession at a police station. Lesneski read Fleming his Miranda rights a third
time before recording the statement. The recording was played for the jury at trial.

        Fleming offered a different version of the conversation that took place inside the van
with Detective Lesneski. According to Fleming, Lesneski initiated the conversation and
claimed to have

        found a weapon and that it [would] be within my best interests to cooperate.
        He told me that I did need to—he told me to be careful of what I say, that
        don’t be sorry for —you don’t want to be sorry for something you have or
        haven’t said. I don’t remember the exact words, but there was a
        conversation before I had—I didn’t come right out and say, “Yeah, I done
        it.”

B.      Procedural background

        Fleming’s counsel filed a pretrial motion to suppress the statements Fleming made
to Detective Lesneski. In April 2000, the trial court conducted a so-called Walker hearing,
which under Michigan law refers to a “phase of motion practice in which all issues of
admissibility of a defendant’s statements are resolved.” People v. Ray, 430 N.W.2d 626, 631
(Mich. 1988) (discussing People v. Walker, 132 N.W.2d 87 (Mich. 1965)). Fleming’s
counsel framed the issues at stake in the hearing as follows: “[W]e have both questions
regarding the right to remain silent and the Fifth Amendment, also got [sic] the right to an
attorney. Both of those things were asserted on behalf of the defendant.” The prosecutor
framed the issue, in contrast, as “nothing but voluntariness.” Accepting the prosecutor’s
statement of the issue, the state trial court held, without explaining why, that “[t]he only
issue . . . is whether or not [the confession] was voluntary.”

        In May 2000, Fleming stood trial in the state court. He maintained that he had killed
York in self-defense, thinking that York was going to harm him. In support of this claim,
Fleming testified that York bragged about robbing drug dealers and that he had asked
Fleming for “a couple hundred dollars” to buy crack cocaine. Fleming also claimed that
No. 07-2311          Fleming v. Metrish                                                    Page 5


York became furious when he refused, telling Fleming that “I am going to kick your fucking
teeth right through your head.” He further alleged that he shot York twice before York hit
the ground because York would not stop advancing toward him after Fleming warned him
to stop. In addition to his own testimony, Fleming presented two witnesses who said that
York had a reputation for being violent. The trial court refused, however, to allow Fleming
to call a witness who allegedly saw York rob a drug dealer the week before York was killed.

        After exhausting his state-court remedies, Fleming sought a writ of habeas corpus
in federal district court, alleging that he was being held in a state prison in violation of his
constitutional rights. The district court conditionally granted Fleming’s petition, holding that
his Fifth Amendment right to remain silent had been violated and that he was denied his
constitutional right to mount a defense because the trial court did not permit Fleming to call
a witness who purportedly would have bolstered his self-defense claim. This timely appeal
followed.

                                       II. ANALYSIS

A.      Standard of review

        “In a habeas corpus appeal, we review the district court’s legal conclusions de novo,
but will not set aside its factual findings unless they are clearly erroneous. The standard for
reviewing state-court determinations on habeas, by contrast, is governed by the Antiterrorism
and Effective Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254(d).” Ivory v.
Jackson, 509 F.3d 284, 291 (6th Cir. 2007) (citation omitted). AEDPA provides that a
federal court

        may not grant a writ of habeas to a petitioner in state custody with respect
        to any claim adjudicated on the merits in state court unless (1) the state
        court’s decision ‘was contrary to, or involved an unreasonable application
        of, clearly established Federal law, as determined by the Supreme Court’ or
        (2) the state court’s decision ‘was based on an unreasonable determination
        of the facts in light of the evidence presented in the State court proceedings.’
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (quoting 28 U.S.C. § 2254(d)) (citation
omitted).

        A state-court decision is considered “contrary to . . . clearly established federal law”
if the two are “diametrically different, opposite in character or nature, or mutually opposed.”
No. 07-2311          Fleming v. Metrish                                                 Page 6


Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal quotation marks omitted).
Alternatively, to be deemed an “unreasonable application of . . . clearly established Federal
law,” a state-court decision on the merits must be “objectively unreasonable,” not simply
erroneous or incorrect. Id. at 409-11. The state court’s findings of fact are presumed to be
correct unless they are rebutted by clear and convincing evidence. Benge v. Johnson, 474
F.3d 236, 241 (6th Cir. 2007).

B.      Alleged Fifth Amendment violation

        1.      Procedural default

        The district court held that the Michigan Court of Appeals unreasonably applied
Supreme Court precedent in concluding that Fleming’s Fifth Amendment right to remain
silent was not violated during the investigation of York’s murder. As a threshold matter,
however, the state argues that the district court should not have even reached the issue
because the same was procedurally defaulted. But the state’s counsel, according to the
district court, “acknowledged at oral argument [that] the issue had been raised in state court.”



        The state nevertheless argues that the Fifth Amendment issue was not properly raised
during the pretrial Walker hearing because, according to the state, the sole purpose of such
hearings is to address whether a particular confession was provided voluntarily. Fleming
responds that, even if the Michigan courts originally created Walker hearings to assess
voluntariness, “the profession [came] to use the term[] ‘Walker hearing’ to refer to that phase
of motion practice in which all issues of admissibility of a defendant’s statements are
resolved.” See People v. Ray, 430 N.W.2d 626, 631 (Mich. 1988).

        We find no error in the district court’s adoption of Fleming’s persuasive response
regarding the scope of a Walker hearing. Moreover, the state’s concession that the Miranda
issue “had been raised in state court” negates a finding of procedural default. We therefore
turn to the merits of Fleming’s Fifth Amendment Miranda claim.
No. 07-2311            Fleming v. Metrish                                                 Page 7


        2.        Admissibility of Fleming’s confession

        Under Miranda v. Arizona, 384 U.S. 436, 473-74 (1966), law enforcement officers
must cease questioning a suspect who invokes his right to remain silent or to have an
attorney present. This does not mean that statements obtained after a suspect invokes that
right are necessarily inadmissible in all cases. Instead, “the admissibility of statements
obtained after the person in custody has decided to remain silent depends . . . on whether his
‘right to cut off questioning’ was ‘scrupulously honored.’” Michigan v. Mosley, 423 U.S.
96, 104 (1975).

        We disagree with the district court’s conclusion that the Michigan Court of Appeals
unreasonably applied Mosley. The district court’s analysis turned on its determination that
Officer Clayton “interrogated” Fleming while he was in custody. We will therefore address
the issue of whether there was an interrogation before turning to the Michigan Court of
Appeals’s application of Mosley.

                  a.      Whether Fleming was interrogated by the police

        In Rhode Island v. Innis, 446 U.S. 291 (1980), the Supreme Court defined the term
“interrogation” in the Miranda context as follows:

        “Interrogation,” as conceptualized in the Miranda opinion, must reflect a
        measure of compulsion above and beyond that inherent in custody itself.
        We conclude that the Miranda safeguards come into play whenever a person
        in custody is subjected to either express questioning or its functional
        equivalent. That is to say, the term “interrogation” under Miranda refers not
        only to express questioning, but also to any words or actions on the part of
        the police (other than those normally attendant to arrest and custody) that the
        police should know are reasonably likely to elicit an incriminating response
        from the suspect. . . . But, since the police surely cannot be held accountable
        for the unforeseeable results of their words or actions, the definition of
        interrogation can extend only to words or actions on the part of police
        officers that they should have known were reasonably likely to elicit an
        incriminating response.
Id. at 300-02 (emphasis in original). Police officers placed Innis under arrest, advised him
of his Miranda rights, and took him to a police station in a patrol car. Innis, 446 U.S. at 293-
94. “The respondent stated that he understood [his Miranda] rights and wanted to speak with
a lawyer.” Id. at 294. While in the car, however, the officers began to speak to each other
No. 07-2311             Fleming v. Metrish                                               Page 8


about the murder weapon, which they had not yet located. Id. at 294. One of the officers
testified as follows:

        I was talking back and forth with [a second police officer] stating that I
        frequent this area while on patrol and [that because a school for handicapped
        children is located nearby,] there’s a lot of handicapped children running
        around in this area, and God forbid one of them might find a weapon with
        shells and they might hurt themselves.
Id. at 294-95 (second alteration in original).

        The second officer “apparently shared his fellow officer’s concern,” indicating that
he “more or less concurred with [the first officer] that it was a safety factor and that we
should, you know, continue to search for the weapon and try to find it.” Id. at 295.
Sometime during the course of this discussion, Innis “interrupted the conversation, stating
that the officers should turn the car around so he could show them where the gun was
located. . . . The respondent then led the police to a nearby field, where he pointed out the
shotgun under some rocks by the side of the road.” Id.

        After considering the above facts, the Supreme Court held that the officers’
conversation was not reasonably likely to elicit an incriminating response. Id. at 302. The
court noted that nothing in the record indicated that the suspect was “peculiarly susceptible
to an appeal to his conscience,” and further elaborated that

        [t]he case thus boils down to whether, in the context of a brief conversation,
        the officers should have known that the respondent would suddenly be
        moved to make a self-incriminating response. Given the fact that the entire
        conversation appears to have consisted of no more than a few off hand
        remarks, we cannot say that the officers should have known that it was
        reasonably likely that [the suspect] would so respond. This is not a case
        where the police carried on a lengthy harangue in the presence of the
        suspect. Nor does the record support the respondent’s contention that, under
        the circumstances, the officers’ comments were particularly “evocative.” It
        is our view, therefore, that the respondent was not subjected by the police to
        words or actions that the police should have known were reasonably likely
        to elicit an incriminating response from him.
Id. at 302-03.

        In the case before us, the Michigan Court of Appeals similarly concluded that Officer
Clayton’s brief remarks did not constitute an interrogation within the meaning of Miranda.
No. 07-2311         Fleming v. Metrish                                                    Page 9


Accepting Fleming’s account of the events as true, the Michigan court characterized Officer
Clayton’s comments as “(i) a mild admonition to ‘do the right thing’ or ‘get with the
program’; and (ii) an inquiry as to whether [Fleming] now wished to talk to the lead
investigating officer.” The court stated:

        As to (i), given the defendant’s repeated denials of involvement in the
        instant offense, as well as his general familiarity with the justice system, we
        are not convinced that these comments were ‘reasonably likely to elicit an
        incriminating response,’ as necessary to constitute an interrogation. In
        regard to (ii), we have also recognized that it is appropriate to present new
        information to an individual so that ‘an informed an intelligent assessment’
        of his or her options may be made.
        We find nothing unreasonable about the Michigan appellate court’s application of
the interrogation standard set forth in Innis. The record reasonably supports a finding that
Fleming was not subject to “a measure of compulsion above and beyond that inherent in
custody itself.” See Innis, 446 U.S. at 300. Nor is this a case “where the police carried on
a lengthy harangue in the presence of the suspect.” See id. at 303. There is no evidence,
moreover, indicating that Fleming was “peculiarly susceptible to an appeal to his
conscience.” See id. Instead, just as in Innis, Officer Clayton’s comments involved a “brief
conversation” that including nothing more than “a few off hand remarks” that were not
“particularly ‘evocative.’” See id.

        We recognize that Innis is arguably distinguishable on the basis that the conversation
in Innis occurred between two police officers, and was not directed toward the suspect
himself. See id. at 294-95. Officer Clayton’s brief remarks were, in contrast, clearly aimed
at Fleming. Such a distinction might be significant if an officer’s brief remarks morphed
into, for example, a “lengthy harangue” because, other things being equal, extended
comments directed toward a suspect are more likely to elicit an incriminating response. But
this court has previously rejected a constitutional challenge to cursory comments aimed at
a suspect in an analogous context. See United States v. Hurst, 228 F.3d 751, 760
(6th Cir. 2000) (holding that “the mere statement by [a law-enforcement official] that ‘we’ve
got good information on you,’ viewed in context, contains no compulsive element suggesting
a Fifth Amendment violation under the circumstances.”).
No. 07-2311          Fleming v. Metrish                                              Page 10


        There are strong arguments both for and against construing Officer Clayton’s
comments as an interrogation. Indeed, were Fleming’s appeal a direct one to be reviewed
de novo, the possibility exists that we might have agreed with Fleming’s position. But the
fact that a federal court might disagree with the Michigan Court of Appeals’s application of
Innis does not justify the conclusion that the Michigan court unreasonably applied the
Supreme Court’s decision. See Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (holding
that “a federal habeas court may not issue the writ simply because that court concludes in its
independent judgment that the state-court decision applied [a Supreme Court case]
incorrectly”); see also Hereford v. Warren, 536 F.3d 523, 528 (6th Cir. 2008) (“Our task is
not to determine whether the state court reached the correct outcome, but rather to determine
whether the court’s application of clearly established federal law is objectively
unreasonable—‘a substantially higher threshold.’”) (quoting Schriro v. Landrigan, 127 S. Ct.
1933, 1939 (2007)). We conclude that the Michigan Court of Appeals’s determination
regarding a lack of interrogation by Officer Clayton was not an “unreasonable application
of . . . clearly established Federal law.” See Williams v. Taylor, 529 U.S. 362, 376 (2000).

        Finally, we note that Fleming disputed Detective Lesneski’s account of the in-van
interview that took place after Officer Clayton’s remarks. Although Lesneski claimed that
he said nothing material to Fleming when Lesneski entered the van, Fleming asserts that
Lesneski encouraged him to cooperate. The state trial court failed to resolve this factual
dispute. But even if Fleming’s version of the events is assumed to be true, we would still not
conclude that the Michigan Court of Appeals unreasonably applied Mosley. We will explain
why in the course of the discussion immediately below.

                b.      Whether the Michigan Court of Appeals unreasonably applied
                        Mosley
        The district court’s finding that Officer Clayton interrogated Fleming fueled its
analysis of Michigan v. Mosley, 423 U.S. 96 (1975), and, in turn, its conclusion that the
Michigan Court of Appeals unreasonably applied that case. In Mosley, the Supreme Court
discussed the circumstances under which a police officer may resume questioning a suspect
who has previously exercised the right to remain silent under Miranda. The Court held that,
when a defendant invokes the right to remain silent, the officers have the duty to
No. 07-2311         Fleming v. Metrish                                               Page 11


immediately cease questioning under Miranda. But the Court sought to avoid two extreme
interpretations of that obligation:

        To permit the continuation of custodial interrogation after a momentary
        cessation would clearly frustrate the purposes of Miranda by allowing
        repeated rounds of questioning to undermine the will of the person being
        questioned. At the other extreme, a blanket prohibition against the taking
        of voluntary statements or a permanent immunity from further interrogation,
        regardless of the circumstances, would transform the Miranda safeguards
        into wholly irrational obstacles to legitimate police investigative activity,
        and deprive suspects of an opportunity to make informed and intelligent
        assessments of their interests.
Mosley, 423 U.S. at 102. Seeking to avoid these extremes, the Court adopted the following
standard: “[T]he 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 104.

        The Supreme Court did not adopt a bright-line rule for determining whether law
enforcement officials have satisfied this standard. But the Court did provide guidance on the
issue by explaining that the police “fail[] to honor a decision of a person in custody to cut
off questioning, either by refusing to discontinue the interrogation upon request or by
persisting in repeated efforts to wear down his resistance and make him change his mind.”
Id. at 105-06 (brackets added). Factors favoring a finding that the police have scrupulously
honored a defendant’s rights include where “[1] the police . . . immediately ceased the
interrogation, resumed questioning only after [2] the passage of a significant period of time
and the provision of a fresh set of warnings, and [3] restricted the second interrogation to a
crime that had not been a subject of the earlier interrogation.” Id. at 106 (brackets added).
Mosley “neither elevates any one factor as predominant or dispositive nor suggests that the
enumerated factors are exhaustive, but instead directs courts to focus on whether the
confession ‘was obtained in a manner compatible with the requirements of the
Constitution.’” United States v. Schwensow, 151 F.3d 650, 659 (7th Cir. 1998) (quoting
Miller v. Fenton, 474 U.S. 104, 112 (1985)).

        In holding that Fleming’s confession was admissible under Mosley, the Michigan
Court of Appeals emphasized that there was no evidence indicating that the police
endeavored to “wear down [Fleming’s] resistance and make him change his mind.” See
No. 07-2311          Fleming v. Metrish                                                Page 12


Mosley 423 U.S. at 105. Although Fleming confessed before receiving a fresh set of
Miranda warnings, the Michigan court’s conclusion was premised upon its finding that the
police did not actually interrogate Fleming a second time before he voluntarily chose to
confess.

        But the district court disagreed. In contrast to the state court’s opinion, which
emphasized that the police officers did nothing to “wear down” Fleming’s resistance, the
district court emphasized other Mosley factors. The district court did not think that the police
waited long enough before “questioning” Fleming a second time about the murder (even
though the purported questioning of Fleming by Officer Clayton occurred three hours later).
It also observed that Fleming did not receive fresh Miranda warnings before Clayton made
his comment that Fleming should “do the right thing,” or before Clayton allegedly told
Fleming to “get with the program” (which assumes, contrary to the reasonable determination
of the Michigan Court of Appeals, that these comments constituted an “interrogation” that
should have been accompanied with new warnings). The district court noted that the
purported interrogation concerned the same crime that was the subject of the earlier
interrogation (a factor that indeed favors Fleming under Mosley). Its application of these
factors led the district court to conclude that the Michigan Court of Appeals unreasonably
applied Mosley.

        In conducting its analysis under Mosley, the district court apparently assumed that
Detective Lesneski did not encourage Fleming to cooperate. The district court’s opinion in
fact contains no discussion of Lesneski’s alleged comments. Nor did Fleming seek to
resolve the factual dispute by requesting a hearing on the matter. See 28 U.S.C. § 2254(e)
(stating the conditions under which federal courts are permitted to hold hearings on factual
disputes in state-court habeas proceedings).

        In addition to assuming that Officer Clayton interrogated Fleming a second time
before Fleming voluntarily confessed, and that Detective Lesneski did not encourage
Fleming to cooperate, the district court failed to explain why the state court’s ultimate
conclusion—that the officers scrupulously honored Fleming’s right to remain silent where
there was no evidence that they tried to “wear down” Fleming’s resistance—was contrary
to Mosley. As previously noted, “Mosley neither elevates any one factor as predominant or
No. 07-2311          Fleming v. Metrish                                                 Page 13


dispositive nor suggests that the enumerated factors are exhaustive, but instead directs courts
to focus on whether the confession ‘was obtained in a manner compatible with the
requirements of the Constitution.’” Schwensow, 151 F.3d at 659 (quoting Miller, 474 U.S.
at 112). Even Fleming concedes that Mosley does not provide a per se rule for determining
whether the police have sufficiently honored the suspect’s exercise of his right to remain
silent, and that Mosley does not require in every case the passage of a fixed length of time,
the provision of fresh Miranda warnings, or a change of subject.

        The fact that the district court reached a contrary outcome after emphasizing different
Mosley factors than those relied on by the Michigan Court of Appeals does not suffice to
justify the granting of a habeas petition pursuant to AEDPA, especially in light of our
conclusion that the state court’s determination regarding a lack of interrogation by Officer
Clayton was not objectively unreasonable. See Hereford, 536 F.3d at 528. In sum, despite
the closeness of the question on the merits, we are of the opinion that the Michigan Court
of Appeals’s decision on this issue was not an unreasonable application of Miranda, Innis,
or Mosley.

        Our dissenting colleague, on the other hand, believes that the Michigan Court of
Appeals’s plain-error review of the claim is not entitled to AEDPA deference because such
a review does not amount to consideration ‘on the merits’ for purposes of 28 U.S.C.
§ 2254(d). We respectfully disagree for two reasons.

        First, none of the cases cited by the dissent decide the question of whether a claim
reviewed for plain error by a state court dispenses with our obligation to apply AEDPA
deference to the merits of the decision reached by that court. They instead discuss the
analytically prior question of whether a federal court is permitted to hear an issue in the first
place under the doctrine of procedural default. See, e.g., Jells v. Mitchell, 538 F.3d 478, 511
(6th Cir. 2008) (holding that a claim not raised before the Ohio Court of Appeals was
procedurally defaulted even though the Ohio Supreme Court reviewed the claim for plain
error on direct appeal); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir. 2006) (holding that
“a state court’s plain error analysis does not save a petitioner from procedural default”);
Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000) (holding that habeas petitioners
cannot resurrect procedurally defaulted claims on the sole basis that a state court has applied
No. 07-2311         Fleming v. Metrish                                                Page 14


plain-error review to the issue on direct appeal). We of course agree with these cases to the
extent that they stand for the well-established rule that a state court’s application of plain-
error review does not revive a habeas petitioner’s otherwise procedurally defaulted claim on
collateral review. But we disagree with our colleague’s view that they control not only this
court’s ability to address a habeas petitioner’s claim, but also the appropriate standard of
review to apply once we have determined that the claim is reviewable on the merits.

        Second, the question of whether a claim should be addressed on collateral review
under the judicially created doctrine of procedural default is independent of the question of
whether Congress requires deference pursuant to AEDPA. This court declines to review
procedurally defaulted claims out of respect for state-court enforcement of state procedural
rules. Clinkscale v. Carter, 375 F.3d 430, 441 (6th Cir. 2004) (citing Coleman v. Thompson,
501 U.S. 722, 722 (1991)) (observing that the purposes of the procedural-default rule include
concerns of comity and federalism). Similarly, Congress enacted AEDPA “to further the
principles of comity, finality, and federalism.” Williams v. Taylor, 529 U.S. 420, 436
(2000). But the fact that similar concerns motivate both the procedural-default doctrine and
AEDPA does not permit us to ignore the latter simply because the former doctrine is deemed
inapplicable. Instead, we believe that this court’s jurisprudence is reasonably clear about
when a state-court’s consideration of a claim is to be considered “adjudicated on the merits”
for the purpose of triggering our review under AEDPA. See 28 U.S.C. § 2254(d).

        This court’s decisions in Maples v. Stegall, 340 F.3d 433 (6th Cir. 2003), and
Danner v. Motley, 448 F.3d 372 (6th Cir. 2006), are instructive on this point. In Maples, this
court followed the Supreme Court’s lead in Wiggins v. Smith, 539 U.S. 510 (2003), in
holding that, to the extent that no state court had decided the claim in question, the claim
would be subject to de novo review. Maples, 340 F.3d at 437. AEDPA deference was
deemed inappropriate in Maples because the Michigan courts simply declined to evaluate
the merits of the petitioner’s federal ineffective-assistance-of-counsel claim at all. See id.
at 435-36; see also People v. Maples, No. 196975, 1997 WL 33339368, *1 (Mich. Ct. App.
Nov. 4, 1997), aff’d, People v. Maples, 584 N.W.2d 738 (Mich. 1998).

        In the total absence of any such evaluation, there was no need in Maples to specify
the precise form of analysis would suffice to constitute an adjudication on the merits of a
No. 07-2311          Fleming v. Metrish                                                 Page 15


claim under AEDPA. See Maples, 340 F.3d at 437. But Danner, 448 F.3d at 376, provides
further clues, indicating that federal courts will not apply AEDPA deference to a state court’s
adjudication if the state court “confined its analysis . . . to state law” or failed to examine
applicable constitutional law. Id. Both Maples and Danner therefore focus on the legal
reasoning provided by the state court in disposing of a claim to determine whether AEDPA
applies—not the standard of review through which that claim is viewed. And both clearly
imply that AEDPA deference would apply if the state court conducts any reasoned
elaboration of an issue under federal law.

        This court’s decision in Benge v. Johnson, 474 F.3d 236 (6th Cir. 2007), is not to the
contrary. In Benge, a jury instruction was held to be erroneous under state law, but not
plainly so, by the Ohio Supreme Court. Id. at 245-46. On that basis the state appellate court
declined to reverse the defendant’s conviction. Id. The habeas petitioner claimed, on
collateral review, that his counsel was constitutionally ineffective for failing to object to the
instruction during trial. Id. at 246. This court reviewed the ineffective-assistance claim de
novo because the question of whether the jury instruction was plainly erroneous, as
determined by the Ohio Supreme Court under purely state law, could not serve as a substitute
for the entirely different inquiry of whether the petitioner’s trial counsel had been
constitutionally ineffective for failing to object to the instruction in the first place. See id.
But Benge does not demonstrate, as the dissent suggests, that the state court’s application of
plain-error review per se insulates the claim from AEDPA deference. Instead, this court
declined to defer in Benge because the state court did not provide a “reasoned adjudication”
of the federal ineffective-assistance-of-counsel claim at issue. See id. at 247.

        The case before us is not like Benge or Maples. There is little question that
Fleming’s Fifth Amendment claim was “adjudicated on the merits” for AEDPA purposes by
the Michigan Court of Appeals. We note as an initial matter that Fleming has never
contested AEDPA’s applicability. This issue has instead been raised sua sponte by our
dissenting colleague. Moreover, the Michigan Court of Appeals analyzed Fleming’s claim
pursuant to Mosley’s “scrupulously honored” standard, as amply indicated by the above
discussion of the Michigan court’s opinion. Its use of the plain-error standard of review, as
opposed to the clearly erroneous or de novo standards, simply made reversal of the state trial
No. 07-2311         Fleming v. Metrish                                              Page 16


court’s judgment less likely, but did not cause the Michigan Court of Appeals to bypass the
merits of Fleming’s claim and thereby avoid triggering AEDPA deference.

        Nor are we persuaded by our dissenting colleague’s distinction between federal
constitutional issues that a state court “merely addresses” on the merits and those that are
“‘adjudicated’ on the merits.” (Dissenting Op. p. 25) This appears to us to be a distinction
without a difference. See Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006) (“Where a
state court fails to address federal law, § 2254 does not apply, and the decision is reviewed
de novo,” which clearly implies that AEDPA deference would have applied if the state court
had addressed the claim). Furthermore, the first step of the Michigan Court of Appeals’s
plain-error review essentially required addressing whether an error had occurred—an inquiry
which, in this case, could not be accomplished without first adjudicating the merits of
Fleming’s claim. This is not a case where the state court simply assumed, without deciding,
that there was a constitutional error and then proceeded to determine that the error was not
plain. To the contrary, the case before us is one where plain-error review itself played no
practical role in the resolution of Fleming’s Fifth Amendment claim at the state level.

        The heart of the disagreement between ourselves and our dissenting colleague thus
boils down to whether a federal constitutional claim reviewed by a state court for “plain
error” can be considered “adjudicated on the merits” for the purpose of receiving deference
under AEDPA. To our knowledge, there is no authority squarely on point that decides this
key question. We are persuaded, however, that we would be acting contrary to Congress’s
intent to have AEDPA “further the principles of comity, finality, and federalism,” Williams,
529 U.S. at 436, if we simply ignored the Michigan Court of Appeals’s evaluation of
Fleming’s Fifth Amendment claim by reconsidering the issue de novo. In sum, we see no
inherent contradiction in applying AEDPA deference to the Michigan Court of Appeals’s
reasoning on the merits of Fleming’s claim despite our disagreement with its ruling that the
issue was procedurally defaulted. The state court’s substantive reasoning does not simply
vanish along with its erroneous procedural-default determination. Nor does AEDPA.

        We therefore believe that the dissent’s de novo analysis of Fleming’s Fifth
Amendment claim is inappropriate, and we further disagree with its conclusory statements
to the effect that Officer Clayton’s brief comments (or even Detective Lesneski’s alleged
No. 07-2311         Fleming v. Metrish                                              Page 17


encouragement to cooperate) “demonstrate a persistent and not-so-subtle effort to persuade
Fleming to discuss the homicide.” (Dissenting Op. at 49) The facts before us are simply far
removed from cases like Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), where the
police were found to have engaged in an interrogation that failed to scrupulously honor the
suspect’s Miranda rights. See id. at 574-75, 586-88 (granting habeas where the police
officers questioned the petitioner continuously for nearly three hours, and where the
interrogation was “very, very one-sided”). We have already discussed why Officer
Clayton’s comments came nowhere close to that characterization.

        Detective Lesneski’s alleged comments are similarly not inconsistent with Mosley,
a case that provides no set formula for determining whether the police have scrupulously
honored a suspect’s right to remain silent. See Mosley, 423 U.S. at 104. Mosley permits the
police, as Fleming acknowledges in his brief, to present new information to a suspect so that
he is able “to make informed and intelligent assessments of [his] interests.” See id. at 102.
Detective Lesneski’s alleged comments did precisely this: he disclosed to Fleming that the
police had discovered a weapon on the premises, which permitted Fleming to reassess his
situation. True, Lesneski’s alleged comments included a suggestion to “cooperate.” But this
suggestion was accompanied by—again, according to Fleming himself—a warning to
Fleming “to be careful” about what he said, and a caution not to say anything about which
he would be “sorry.” No doubt a complete and fresh recitation of the Miranda warnings
would have been preferable to these shorthand reminders. But in the context of this case,
where there is no dispute that Fleming fully understood his Miranda rights, such cautionary
language bolsters the view that those rights were scrupulously honored under Mosley.

C.      Fleming’s constitutional right to present a defense

        We now turn to Fleming’s alternative habeas claim regarding the exclusion of Scott
Fowler’s testimony as a defense witness. The state trial court expressly refused to consider
Fleming’s Sixth and Fourteenth Amendment claims relating to his right to mount a defense
because it considered the issue to be one of state evidentiary law. We therefore review de
novo Fleming’s right-to-present-a-defense claim. See Danner v. Motley, 448 F.3d 372, 376
(6th Cir. 2006) (utilizing the de novo standard of review where the state court failed to
consider the habeas petitioner’s constitutional claim).
No. 07-2311          Fleming v. Metrish                                                 Page 18


        1.      Relevant state and federal court proceedings

        At trial, Fleming presented evidence showing that he killed York in self defense.
Michigan law required Fleming to show that he honestly and reasonably believed that he was
in danger of serious bodily harm or death at the hands of York. See People v. Helfin,
456 N.W.2d 10, 18 (Mich. 1990). Fleming testified that he believed York was going to kill
him because York had previously bragged about robbing drug dealers. He also called two
witnesses who stated that York had a reputation for violence.

        Fleming further tendered Fowler as a witness because Fowler allegedly saw York
rob a crack cocaine dealer the week before York’s murder. The Michigan trial court refused
to allow Fowler to testify because the court deemed the evidence to be irrelevant, or so
nearly irrelevant that, under Rule 403 of the Michigan Rules of Evidence, the prejudicial
effect of such evidence substantially outweighed its probative value. On appeal, the
Michigan Court of Appeals affirmed the judgment of the state trial court because it agreed
that the testimony of the excluded witness was likely irrelevant. The state appellate court
held that the witness’s testimony would not have been relevant to Fleming’s self-defense
theory because “[i]f evidence is used to show the defendant’s state of mind and support his
apprehensions, the defendant must have known of the evidence.” See People v. Harris, 583
N.W.2d 680, 683-84 (Mich. 1998). But there was no evidence in the record that Fleming’s
alleged apprehension of York was based on anyone’s having witnessed York rob a drug
dealer in the past. In fact, Fleming testified that, at the time of the incident, he did not know
anything about York’s propensity for violence. The state appellate court therefore found that
“to whatever extent [Fleming] had knowledge of [York’s] prior conduct, it was not based
whatsoever on the excluded evidence.” Such evidence was thus excluded because it was
deemed irrelevant to establishing Fleming’s state of mind before York’s death.

        To the extent that the witness’s testimony served to establish character evidence of
York’s propensity for violence, the Michigan Court of Appeals also held that such testimony
would only have been allowed in the form of “testimony as to reputation or by testimony in
the form of an opinion.” See Mich. R. Evid. 404(a)(2) and 405(a). The state appellate court
noted, moreover, that Fleming had already presented the testimony of two witnesses
No. 07-2311          Fleming v. Metrish                                                  Page 19


regarding York’s reputation for violence. This led the Michigan Court of Appeals to
conclude that the trial court had not abused its discretion.

        The federal district court took issue with the Michigan Court of Appeals’s “failure
. . . to recognize the Constitutional dimension of the [trial court’s] error,” and considered this
purported error to be “an unreasonable application of federal law.” Quoting Taylor v.
Illinois, 484 U.S. 400, 409 (1988), the court observed that “[t]he right to offer testimony is
. . . grounded in the Sixth Amendment even though it is not expressly described in so many
words.”

        2.       Merits of the claim

        Fleming argues that the Michigan trial court erred in excluding Fowler’s testimony
on the basis of relevancy. And even if the court did not err as a matter of state law, Fleming
maintains that the exclusion nonetheless violated his constitutional right to present witnesses
in his own defense. The district court agreed. We respectfully disagree.

        “[T]he Constitution guarantees criminal defendants a meaningful opportunity to
present a complete defense, including the right to present relevant evidence . . . subject to
reasonable restrictions.” Varner v. Stovall, 500 F.3d 491, 499 (6th Cir. 2007) (citations and
internal quotation marks omitted) (alterations in original). This court, however, has also
stated that “[i]t is well settled that the Constitution does not guarantee a defendant the
opportunity to present any evidence he desires.” Alley v. Bell, 307 F.3d 380, 396 (6th Cir.
2002). Indeed, “[o]nly if an evidentiary ruling is so egregious that it results in a denial of
fundamental fairness [does] it . . . violate due process and thus warrant habeas relief.” Baze
v. Parker, 371 F.3d 310, 324 (6th Cir. 2004) (internal quotation marks omitted) (alterations
in original). Issues of state law, however, are ordinarily not properly subjected to collateral
review. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“[I]t is not the province of a
federal habeas court to reexamine state-court determinations on state-law questions. In
conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.”).

        Fleming argues that the Michigan trial court erred in finding that Fowler’s testimony
was irrelevant and duplicative. As to relevancy, Fowler would have testified that he had
No. 07-2311          Fleming v. Metrish                                               Page 20


previously witnessed York rob a drug dealer. This testimony was intended to bolster
Fleming’s specific account of what happened immediately before he shot York. In
particular, if the jury was more likely to believe, due to Fowler’s testimony, that York tried
to rob Fleming, then the jury might have in turn believed that Fleming feared a serious risk
of bodily injury at the hands of York. Absent Fowler’s testimony, however, the jury was
more likely to conclude that Fleming just made up the whole thing. Fowler’s testimony is
therefore arguably relevant to Fleming’s self-defense claim.

        Fleming also contends that Fowler’s testimony did not duplicate the testimony of the
two witnesses who testified that York was prone to violence. Instead, Fowler’s testimony
would have arguably added credibility to Fleming’s account of the specific events leading
up to York’s death. Fleming contends that the Michigan Court of Appeals therefore erred
in excluding Fowler’s testimony.

        Despite the initial plausibility of these arguments, they essentially address issues of
Michigan evidentiary law that are not as such subject to collateral review. See Estelle, 502
U.S. at 67-68. Fleming therefore faces an uphill battle in characterizing his evidentiary
concerns as constitutional in nature. In particular, Fleming must show that the state trial
court’s evidentiary ruling was “so egregious” that it effectively denied Fleming a fair trial.
See Baze, 371 F.3d at 324. Fleming has not met this burden.

        In support of his contention that the state trial court’s evidentiary ruling raises
constitutional concerns, Fleming cites two cases: Chambers v. Mississippi, 410 U.S. 284
(1973), and Washington v. Texas, 388 U.S.14 (1967). Fleming argues that these cases
support the proposition that “[t]he right to present a defense is so fundamental that defense
evidence must sometimes be allowed even though it technically violates an evidentiary rule.”
Even assuming the accuracy of this broad proposition, neither case supports Fleming’s
conclusion that the trial court’s ruling violated his constitutional rights.

        In Chambers, the state trial court permitted the defendant, who was accused of
murder, to call as a witness someone who initially confessed to the murder but later
repudiated his own confession and claimed to have an alibi. Id. at 291. But the defendant
was “denied an opportunity to subject [the witness’s] damning repudiation and alibi to
cross-examination” based on the state court’s rigid application of the so-called “voucher
No. 07-2311          Fleming v. Metrish                                                Page 21


rule” that prevents a party from impeaching the credibility of his own witness. Id. at 295-98.
The trial court also refused to allow other witnesses to testify that they had heard someone
else confess to the murder because the court concluded that such testimony would be
inadmissible hearsay. Id. at 298. These two factors together were held to constitute
reversible error on habeas corpus review. Id. at 302.

        Washington v. Texas involved an eyewitness to a shooting who was excluded as a
defense witness because he was allegedly an accomplice to the same shooting.                 In
concluding that this witness was unconstitutionally excluded, the Supreme Court directed
its attention to the nature of the evidentiary rule the state court used to exclude the witness:

        The rule disqualifying an alleged accomplice from testifying on behalf of the
        defendant cannot even be defended on the ground that it rationally sets apart
        a group of persons who are particularly likely to commit perjury. The
        absurdity of the rule is amply demonstrated by the exceptions that have been
        made to it.
Washington, 388 U.S. at 22. As a result, the Supreme Court held that

        the petitioner . . . was denied his right to have compulsory process for
        obtaining witnesses in his favor because the State arbitrarily denied him the
        right to put on the stand a witness who was physically and mentally capable
        of testifying to events that he had personally observed, and whose testimony
        would have been relevant and material to the defense.
Id. at 23.

        The evidentiary rulings in Chambers and Washington are simply not on par with the
exclusion at issue here. Unlike the witnesses who were excluded in Chambers, Fowler was
not prepared to testify that he had overheard someone claiming to have seen York’s killing.
Nor was Fowler himself an eyewitness at the scene. Finally, the Michigan trial court did not
rely on an evidentiary rule that irrationally excludes an entire category of witnesses from
testifying on behalf of defendants, as in Washington.

        Fleming might have had a stronger claim if, for example, he had been completely
barred from presenting any witnesses to corroborate his contention that York was known to
be violent. But that is not the case here. Fleming has failed to provide any persuasive reason
why the Michigan trial court’s evidentiary ruling was “so egregious that it results in a denial
of fundamental fairness . . . and thus warrant[s] habeas relief.” See Baze, 371 F.3d at 324.
No. 07-2311         Fleming v. Metrish                                                Page 22


The district court therefore erred in granting Fleming’s petition for a writ of habeas corpus
on the basis of a purported violation of his right to present a defense.

        3.      Harmless error

        Moreover, even if the state trial court’s ruling had violated Fleming’s constitutional
right to present a defense, that constitutional error would be harmless. To determine whether
an error is harmless on collateral review, “we ask whether the error ‘had [a] substantial and
injurious effect or influence in determining the jury’s verdict.’” Hereford v. Warren, 536
F.3d 523, 528 (6th Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).

        The district court held that the purportedly unconstitutional exclusion of Fowler’s
testimony was not harmless because the exclusion “allowed the prosecutor to argue [that
Fleming’s] testimony of fear of Scott York was not corroborated.” We respectfully disagree
with the district court’s analysis because there is no indication that barring Fowler had a
substantial and injurious effect on the jury’s finding that Fleming was guilty. As the
Michigan Court of Appeals observed:

        [D]efendant’s testimony was damaging to his claim of self-defense,
        suggesting that, even if the proposed testimony was erroneously excluded,
        the error was harmless. For example, defendant testified that he had an
        opportunity to drive “probably sixty yards” away from the victim, before
        turning around to attempt to pacify the victim. Moreover, defendant[’s]
        testimony[] established that the victim approached him menacingly at a
        “steady walk”; however, defendant testified that he had sufficient time to
        retrieve his shotgun from his truck, load the shotgun with bullets that were
        in his pocket, and then warn the victim to stop at least twice before shooting
        him. Although defendant claimed that the shooting was “self-defense,” he
        testified that he shot the victim twice. Further, defendant testified that the
        victim was not armed with any weapons as he approached the defendant;
        nevertheless, defendant testified that he shot the victim in the face and head.
        In light of the defendant’s testimony, we believe that there was an ample
        basis for the jury to conclude that defendant’s use of deadly force was
        unreasonable, regardless of the victim’s history of robbing crack dealers or
        defendant’s honest belief that those stories were true.
        The district court simply failed to consider the Michigan Court of Appeals’s
harmless-error analysis, an analysis that we find persuasive. We would elaborate on only
one detail. Not only was York shot twice, but one of those shots entered York’s skull in the
back of his head. A reasonable jury could easily conclude that shooting someone in the back
No. 07-2311          Fleming v. Metrish                                                Page 23


of the head is inconsistent with a claim of self defense. In sum, even if excluding Fowler as
a witness was a constitutional error, it was a harmless one because there is no indication that
the error had a substantial and injurious effect or influence in determining the jury’s verdict.

                                    III. CONCLUSION

        For all of the reasons set forth above, we REVERSE the judgment of the district
court and REMAND the case with instructions to deny Fleming’s petition for a writ of
habeas corpus.
No. 07-2311         Fleming v. Metrish                                                Page 24


                 ______________________________________________

                  CONCURRING IN PART, DISSENTING IN PART
                 ______________________________________________

        CLAY, Circuit Judge, concurring in part and dissenting in part. Respondent Linda
Metrish, Warden of Michigan’s Kinross Correctional Facility, appeals from the district
court’s judgment granting Petitioner Stephen Fleming’s application for a writ of habeas
corpus under 28 U.S.C. § 2254. In his habeas petition, Fleming challenges his convictions
for second-degree murder and possession of a firearm during the commission of a felony on
the grounds that: (1) the trial court should have excluded his confession under Michigan v.
Mosley, 423 U.S. 96 (1975), because the police failed to “scrupulously honor” his assertion
of his Fifth Amendment right against self-incrimination; and (2) the trial court’s exclusion
of certain witness testimony denied him his fundamental right to present a defense. The
district court conditionally granted habeas relief on both claims.

        Although I concur in the majority’s holding that the district court improperly granted
Fleming habeas relief on his claim regarding the exclusion of Fowler’s testimony, I
respectfully dissent from the majority’s conclusion regarding Fleming’s Mosley claim.
When considered in context, the numerous exhortations by the police encouraging Fleming
to “get with the program” and “cooperate” rose above the level of mere admonition. At the
time, Fleming was handcuffed in a police vehicle, and police officers were celebrating the
discovery of the murder weapon right in front of him, allegedly shouting and pointing in his
direction. Although Fleming made clear that he did not want to answer questions related to
the homicide, the record indicates that the police repeatedly pressured him to “do the right
thing” and “get with the program,” comments plainly aimed at wearing down Fleming’s
resistance to questioning. In other words, despite Fleming’s prior invocation of his right to
remain silent, the officers at the scene failed to “scrupulously honor” his decision to cut off
questioning.
No. 07-2311          Fleming v. Metrish                                                Page 25


                                               I.

        Although acknowledging that there are “strong arguments” on both sides, the
majority reverses the district court’s ruling with respect to Fleming’s Mosley claim based
primarily on its conclusion that the deferential standard of review required under AEDPA
applies. By its very terms, however, AEDPA applies only to “any claim that was
adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d) (emphasis
added); see Danner v. Motley, 448 F.3d 372, 376 (6th Cir. 2006). AEDPA thus requires
deference only where the defendant’s federal claim was “adjudicated” on the merits, not,
more broadly speaking, whenever a state court merely addresses—or, in the parlance of the
majority, “evaluates”—the merits of the claim. Conversely, where the state courts do not
rule on the merits of a claim, this Court reviews the claim de novo. See Maples v. Stegall,
340 F.3d 433, 436 (6th Cir. 2003) (“Where, as here, the state court did not assess the merits
of a claim properly raised in a habeas petition, the deference due under AEDPA does not
apply. Instead, this court reviews questions of law and mixed questions of law and fact de
novo.” (internal citation omitted)). Because the Michigan courts reviewed Fleming’s claim
for plain error only, the majority’s conclusion that the decision of the Michigan Court of
Appeals, nevertheless, is entitled to deference under AEDPA is improper. In fact, the
majority’s insistence on deference is, under the circumstances, contrary to controlling
authority, illogical, and manifestly unjust. Having properly raised his Mosley claim before
the trial court, and pressed that claim at every stage of his state court proceedings, Fleming
is entitled to a full review of the merits of his claim.

        Because it concluded that Fleming had “forfeited” his Mosley claim, the Michigan
Court of Appeals did not rule on the merits of that claim, but instead reviewed the claim for
plain error only. People v. Fleming, No. 228731, 2002 WL 988568, at *1 (Mich. Ct. App.
May 14, 2002) (per curiam). Under the plain-error framework, Fleming was required to
show not only that the police failed to honor his decision to remain silent, but also that the
trial court’s error was “plain” and affected his “substantial rights.” Id.; see also Cristini v.
McKee, 526 F.3d 888, 901 (6th Cir. 2008) (describing petitioner’s burden under the plain-
error standard). Regardless of whether the Michigan Court of Appeals explored some
aspects of the merits of Fleming’s Mosley claim in conducting its inquiry, it is undeniable
that the court did not consider the merits of Fleming’s claim outside the context of its plain-
No. 07-2311             Fleming v. Metrish                                                          Page 26


error inquiry. Indeed, the Michigan Court of Appeals made clear that, even had Fleming
satisfied the requisite elements of the plain-error inquiry, reversal would be “warranted” only
if he also could show that “the plain, forfeited error . . . seriously affected the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s
innocence.” Fleming, 2002 WL 988568, at *1; see also Cristini, 526 F.3d at 901 (“If all
three [plain-error] conditions are met, we may then exercise our discretion to notice a
forfeited error, but only if . . . the error seriously affected the fairness, integrity or public
reputation of the judicial proceedings.” (citing United States v. Johnson, 488 F.3d 690, 697
(6th Cir. 2007)). The Michigan court’s application of the plain-error standard thus placed
significant burdens on Fleming that he otherwise would not have had to bear to establish a
violation under Mosley. See Benge v. Johnson, 474 F.3d 236, 246 (6th Cir. 2007)
(recognizing that it was “less burdensome” for petitioner to satisfy the elements of his
Strickland claim than to demonstrate plain error); Caver v. Straub, 349 F.3d 340, 348 (6th
Cir. 2003) (noting that the plain-error standard of review is “a highly deferential standard,
to put it mildly”).

         Under these circumstances, the controlling rule in this circuit is that AEDPA does
not apply and the claim is reviewed de novo. In the habeas context, this Court does not
construe a state court’s plain-error review as negating the determination that a claim has been
procedurally defaulted. See Seymour v. Walker, 224 F.3d 542, 557 (6th Cir. 2000)
(“Controlling precedent in our circuit indicates that plain error review does not constitute a
waiver of state procedural default rules.”); Paprocki v. Foltz, 869 F.2d 281, 285 (6th Cir.
1989) (“We would be loath to adopt an exception to the ‘cause and prejudice’ rule that
would discourage state appellate courts from undertaking the sort of [manifest injustice]
inquiry conducted by the Michigan court, and we do not believe that the state court’s
explanation of why the jury instructions resulted in no manifest injustice can fairly be said
to have constituted a waiver of the procedural default.”). Rather, we “view a state appellate
                                                                                              1
court’s review for plain error as the enforcement of a procedural default.”                       Hinkle v.
Randle, 271 F.3d 239, 244 (6th Cir. 2001); see also Keith v. Mitchell, 455 F.3d 662, 673-


         1
         The Michigan court’s “safety valve” review for plain error is not unique. “Many states have
procedural default rules with similar ‘safety valves’ for situations in which enforcing the procedural default
would work a serious injustice.” Campbell v. Burris, 515 F.3d 172, 178 (3rd Cir. 2008) (citing Neal v.
Gramley, 99 F.3d 841, 844 (7th Cir. 1996)).
No. 07-2311             Fleming v. Metrish                                                          Page 27


74 (6th Cir. 2006). For that reason, this Court does not construe a state court’s plain-
error review as an adjudication “on the merits” for purposes of § 2254.2 See, e.g.,
Thompkins v. Berghuis, 547 F.3d 572, 590 (6th Cir. 2008) (affording no deference to
state court’s plain-error review of petitioner’s prosecutorial-misconduct claim); Jells v.
Mitchell, 538 F.3d 478, 511 (6th Cir. 2008) (“The [state] court’s plain-error review is not
considered a review on the merits . . . .”); Benge, 474 F.3d at 246 (expressly applying
de novo review to prejudice prong of Strickland claim where state court reviewed claim
for plain error); see also Grayer v. McKee, 149 F. App’x 435, 442 (6th Cir. 2005)
(rejecting district court’s conclusion that state court’s plain-error analysis constituted a
review of the merits of petitioner’s claim).

         As these cases demonstrate, the controlling rule in this circuit is that no deference
is due under AEDPA where a state court reviews a petitioner’s habeas claim for plain
error only, regardless of whether the court’s plain-error inquiry may have delved into the
merits of the claim.3 As this Court expressly and unequivocally held in Lundgren v.
Mitchell, 440 F.3d 754 (6th Cir. 2006), a state court’s plain-error review is not due
deference under AEDPA because “[p]lain error analysis is more properly viewed as a
court’s right to overlook procedural defects to prevent manifest injustice, but is not
equivalent to a review of the merits.” Id. at 765 (emphasis added). Accordingly, where
the state courts determine that a claim has been forfeited and thus review that claim for
plain error only, AEDPA does not apply and no deference is due. Rather, we are free
to exercise our independent judgment and review the claim de novo.




         2
           The majority argues that all of our cases holding that AEDPA deference does not apply in this
context resolved only the “analytically prior question of whether a federal court is permitted to hear an
issue in the first place[, or whether we are precluded from addressing the claim] under the doctrine of
procedural default.” Contrary to the majority’s argument, although each of these decisions obviously
addressed the default issue, even a cursory review demonstrates that they also proceeded to resolve what
standard of review applies in this context.
         3
           In Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003), the Tenth Circuit surveyed the various
approaches that the Courts of Appeals have adopted regarding this issue, concluding that there is a split
among the circuits and, significantly, identifying this Court as construing a state court’s plain-error review
as an application of state procedural default rules rather than an adjudication on the merits. Id. at 1205 n.7
(citing Hinkle, 271 F.3d at 244).
No. 07-2311            Fleming v. Metrish                                                         Page 28


         Even if one were to ignore this litany of cases and accept the majority’s flawed
contention that “there is no authority squarely on point that decides this key question,”
the express language of AEDPA requires deference only where a defendant’s federal
claim has been “adjudicated” on the merits. 28 U.S.C. § 2254(d). Nothing in AEDPA
even remotely suggests that deference is required more broadly where a state court
merely addresses merits-related aspects of a defendant’s federal claim. Consequently,
because the Michigan courts resolved Fleming’s Mosley claim on the basis of a state
procedural rule—and, in fact, did so improperly—the “principles of comity, finality, and
federalism” noted in Williams v. Taylor, 529 U.S. 420, 436 (2000), are not implicated
here.4

         Today’s decision marks an extraordinary and unjustified departure from that
controlling rule. In fact, to justify its conclusion, the majority goes to great lengths to
distinguish and cabin the holding of Benge and this Court’s other cases declining to defer
to a state court’s plain-error inquiry, but those efforts are unpersuasive. Contrary to the
majority’s suggestion, nothing in Benge indicates that it is relevant whether the state
courts may have tangentially considered the merits of petitioner’s claim in addressing
the “error” element of the plain-error inquiry. Rather, the decision in Benge to review
the defendant’s claim de novo was based entirely on the determination that the state
court’s plain-error inquiry imposed additional burdens on the habeas petitioner. See 474
F.3d 246-47. As the Benge Court explained, AEDPA’s mandate to defer to state court
judgments “does not factor into [the] resolution” of the actual prejudice prong of the
petitioner’s Strickland claim because the Ohio Supreme Court had analyzed the claim
“only in the context of plain error review, not under the governing – and less
burdensome – Strickland standard.” Id. at 246. In reaching that conclusion, the Benge
Court reasoned that, “[b]ecause [the petitioner] could have met his burden under


         4
           Underlying our decision in Vasquez v. Jones, 486 F.3d 135 (6th Cir. 2007), is the express
recognition that a state court’s consideration of a “claim” is distinct from its consideration of an “issue”
relevant to that claim. Id. at 141. If, according to Vasquez, only “modified AEDPA deference” is required
where a state court undoubtedly “adjudicated the claim [on the merits,] but with little analysis on the
substantive constitutional issue,” id., then there is even less justification to apply full AEDPA deference,
as the majority does here, where the state court adjudicated and resolved the federal claim on state
procedural grounds and merely addressed merits-related issues in the course of that discussion.
No. 07-2311            Fleming v. Metrish                                                        Page 29


Strickland despite not being able to demonstrate plain error, this analysis did not
constitute an ‘adjudication on the merits’ of [his] ineffective-assistance-of-counsel
claims.” Id. Nothing in Benge suggests that the Court’s ruling was affected by whether
any merits-related issues may have fallen within the scope of the state court’s plain-error
inquiry.

         According to the majority, Benge does not control here because, in Fleming’s
case, the state court’s “use of the plain-error standard of review . . . simply made reversal
of the state trial court’s judgment less likely, but did not cause the Michigan Court of
Appeals to bypass the merits of Fleming’s claim and thereby avoid triggering AEDPA
deference.” The majority’s reasoning simply cannot be squared with Benge, where the
Court declined to defer to a state court’s plain-error inquiry precisely because that
standard made the defendant’s showing more “burdensome,” 474 F.3d at 246, a
conclusion which seems indistinguishable from the majority’s conclusion that Fleming’s
chance of success under the plain-error standard was “less likely.”

         Nor can the majority’s position be reconciled with the holding of Lundgren that
a state court’s plain-error review, even though it may require the court to explore certain
aspects of the merits of the claim, “is not equivalent to a review of the merits.” 440 F.3d
at 765 (emphasis added). Indeed, as our sister circuits have recognized, “[t]o decide
whether an error is plain requires consideration of the merits—but only so far as may be
required to determine that issue. It does not open up the merits any wider for
consideration by the federal court.”5 Neal, 99 F.3d at 844; see also Roy v. Coxon, 907
F.2d 385, 390 (2d Cir. 1990) (“[E]ven if the state court has addressed the questions of
(a) whether there was error, and (b) whether the error was prejudicial, if these questions
were answered in the context of plain-error analysis, the decision was not sufficiently a
ruling on the merits to authorize the federal court to reach the merits.” (emphasis
added)). Despite the majority’s best efforts to distinguish Benge and Lundgren, the rule
announced in those cases controls our review here. And those decisions dictate that

         5
           It is important to stress that de novo review is appropriate here not because the Michigan Court
of Appeals reviewed Fleming’s claim for plain error, but rather because, unlike Neal, we have determined
that the state court’s procedural-default determination was in error.
No. 07-2311        Fleming v. Metrish                                               Page 30


deference is not required here, regardless of whether the state court considered some
aspects of the merits of Fleming’s claim in reviewing his claim for plain error.

       The majority’s position is inconsistent not only with the express holdings of
Benge and Lundgren, but also with the logic underlying those decisions. In general, “a
federal court may not consider a claim for habeas corpus relief if the claim was
procedurally defaulted in state court.” Hargrave-Thomas v. Yukins, 374 F.3d 383, 387
(6th Cir. 2004). There are exceptions, however. For instance, the federal courts may
consider the merits of a claim that has been procedurally defaulted where the petitioner
demonstrates “cause and prejudice.” See Coleman v. Thompson, 501 U.S. 722, 750
(1991) (noting that a petitioner can overcome procedural default by demonstrating
“cause for the default and actual prejudice as a result of the alleged violation of federal
law,” or demonstrating “that failure to consider the claims will result in a fundamental
miscarriage of justice”). The federal courts also may consider a purportedly defaulted
claim where the state court’s procedural-default determination was wrong as a matter of
law. See Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986) (describing this circuit’s
four-part test for determining whether a claim in fact has been procedurally defaulted).

       In the latter case, where a federal court finds error in the state court’s procedural-
default ruling, the federal courts are not bound by the state court’s adjudication of the
claim, even if the state court proceeded to review the claim for plain error or manifest
injustice, or under any other “safety valve” standard. See Campbell, 515 F.3d at 178.
And for good reason, because rejecting the state court’s underlying default ruling
necessarily implies that the state court’s application of a more burdensome “safety
valve” standard was improper. In light of such a determination, although it is true that
the “state court’s substantive reasoning does not simply vanish along with its erroneous
procedural-default determination,” as the majority quips, it is illogical to continue to
insist on deferring to a state court’s improperly-applied, and undoubtedly more
burdensome, plain-error inquiry. See Lundgren, 440 F.3d at 765.

       This interplay between a state court’s default ruling and its application of plain-
error review also undermines the majority’s unsupported contention that “whether a
No. 07-2311        Fleming v. Metrish                                             Page 31


claim should be addressed on collateral review [or whether review is precluded] under
the judicially created doctrine of procedural default is independent of the question
whether Congress requires deference pursuant to AEDPA.” If the federal courts have
rejected the state court’s “analytically prior” ruling that a claim has been procedurally
defaulted, then there is no justification for the federal courts to be bound by the effects
of that determination, i.e., the application of a more burdensome safety valve standard.
In fact, such a rule would be manifestly unjust as it would imply that a defendant who
has properly raised a federal claim in state court is never afforded a full review of the
merits of his claim at any stage. The majority’s baseless contention that we are obliged
to give deference to any state court adjudication where the state court “conducts any
reasoned elaboration of an issue under federal law” thus is fundamentally unfair to
criminal defendants who have properly raised their claims in state court, but, through no
fault of their own, have never been afforded a full review of the merits of their claims.

       The majority’s insistence that deference is required whenever “the state court
conducts any reasoned elaboration of an issue under federal law” also is in tension with
other aspects of this Court’s habeas jurisprudence. For instance, in Joseph v. Coyle, 469
F.3d 441 (6th Cir. 2006), we recognized an important exception to the deference owed
state court adjudications under AEDPA, holding that de novo review is appropriate
“when a claim made on federal habeas review is premised on Brady material that has
surfaced for the first time during federal proceedings,” even where the state courts
ostensibly addressed that claim on the merits. Id. at 469. In such cases, we have
construed the development of new evidence as giving rise, in effect, to a new claim, and
thus have held that deference is not required under § 2254(d) in such cases. Id. In
Brown v. Smith, 551 F.3d 424 (6th Cir. 2008), we expanded the scope of that exception,
holding that the principle announced in Joseph “applies generally,” not just in the
context of Brady claims. Id. at 430 (applying de novo review to ineffective-assistance-
of-counsel claim that had been addressed “on the merits” by the state courts).

       Although the majority’s insistence on deference in this case is not entirely
irreconcilable with this line of cases, it seems more than a little awkward that de novo
No. 07-2311        Fleming v. Metrish                                            Page 32


review is appropriate where the state courts undeniably have addressed a petitioner’s
claim “on the merits” but improperly failed to consider critical evidence in conducting
that inquiry, and yet deference is required where the state courts undoubtedly reviewed
a claim for plain error only and we have rejected the state court’s entire premise for
applying that standard. Indeed, the majority’s insistence on deference whenever the state
courts conduct “any reasoned elaboration of an issue under federal law” is utterly
inconsistent with the logic and interests underlying our application of de novo review in
Joseph and Brown, both of which concluded that a state court’s consideration of issues
related to the merits of a defendant’s claim does not require deference under AEDPA.

       If, as the majority insists, the “principles of comity, finality, and federalism”
identified in Williams, 529 U.S. at 436, were implicated not only where a state court
adjudicates a claim on the merits, but whenever a state court decision merely addresses
the merits of a defendant’s claim, then application of de novo review in Joseph and
Brown would be inconsistent with AEDPA. The Supreme Court, however, has assumed,
without deciding, that deference under AEDPA is not required and that de novo review
is appropriate in such cases. See Holland v. Jackson, 542 U.S. 649, 652-53 (2004)
(noting that “some Courts of Appeals have conducted de novo review [in such cases] on
the theory that there is no relevant state-court determination to which one could defer”
and “assuming, arguendo, that this analysis is correct”); see also Monroe v. Angelone,
323 F.3d 286, 297 (4th Cir. 2003); Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002).
This is not, as the majority suggests, merely a linguistic distinction without any
substantive import. Rather, it is distinction dictated by the express terms of AEDPA, and
one that is necessary to draw if we are to make cohesive sense of the numerous decisions
by this Court and our sister circuits applying de novo review where a state court, despite
addressing and evaluating the merits of a party’s federal claim, has resolved the claim
on the basis of state procedural default rules.

        In this case, therefore, the majority’s decision to reject the Michigan Court of
Appeals’ determination that Fleming forfeited his Mosley claim also negates the entire
basis for subjecting that claim to plain-error review in the first place. It is beyond
No. 07-2311          Fleming v. Metrish                                           Page 33


dispute that the Michigan Court of Appeals’ premise for reviewing Fleming’s Mosley
claim for plain error was that Fleming had forfeited the claim. See Fleming, 2002 WL
988568, at *1. Now that the majority has rejected that underlying default ruling, there
no longer is any basis for limiting review of Fleming’s claim to plain error. Our policy
of providing an opportunity for state courts to correct constitutional errors before a
petitioner may seek relief in federal court, see Coleman, 501 U.S. at 730-31, simply is
not implicated under these circumstances. Thus, although—or, rather, because—I agree
with the majority’s determination that the Michigan Court of Appeals improperly found
that Fleming had defaulted on his Mosley claim, I dispute the majority’s conclusion that
AEDPA’s deferential standard of review continues to apply.

          Absent de novo review by this Court, the merits of Fleming’s Mosley claim will
never have been fully considered by any court, state or federal, despite the majority’s
recognition that the claim was not procedurally defaulted. Such an outcome is
particularly unjust in this case because, as the majority acknowledges, “were Fleming’s
appeal a direct one to be reviewed de novo, the possibility exists that we might have
agreed with Fleming’s position.” Having properly raised his Mosley claim before the
trial court and pressed that claim at every stage of his state court proceedings, Fleming
is entitled to a full review of the merits of his claim. Fleming is entitled to de novo
review.

          For these reasons, I do not agree with my colleagues’ analysis of Fleming’s
Mosley claim. At least until today, it seemed well-settled that a state court’s plain-error
review of a petitioner’s habeas claim did not constitute an adjudication “on the merits”
for purposes of 28 U.S.C. § 2254. In my opinion, that rule applies here and controls our
review of Fleming’s Mosley claim. Because the Michigan Court of Appeals reviewed
Fleming’s Mosley claim for plain error only, our review of that claim “is not
circumscribed by a state court conclusion.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
And because there is no state court adjudication to which we must defer, we are free to
exercise our independent judgment and review Fleming’s claim de novo. See Maples,
340 F.3d at 436.
No. 07-2311          Fleming v. Metrish                                           Page 34


                                            II.

          Applying de novo review, I conclude that Fleming’s confession should not have
been admitted at trial because the police ignored the rigid requirements of Mosley and
failed to “scrupulously honor” Fleming’s invocation of his right to remain silent.

          In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court established
certain procedural safeguards designed to protect the rights of a suspect, under the Fifth
and Fourteenth Amendments, to be free from compelled self-incrimination during
custodial interrogation. The Supreme Court specified, among other things, that if the
suspect “indicates in any manner, at any time prior to or during questioning, that he
wishes to remain silent, the interrogation must cease.” Id. at 473-74 (emphasis added).
The Court reasoned that, at this point, the suspect “has shown that he intends to exercise
his Fifth Amendment privilege,” and thus “any statement taken after the person invokes
his privilege cannot be other than the product of compulsion, subtle or otherwise.” Id.
at 474.

          Although not all statements obtained after a suspect invokes his or her right to
remain silent are, as the majority puts it, “necessarily inadmissible in all cases,”
statements obtained after the suspect has decided to remain silent will be excluded where
the suspect’s “right to cut off questioning” was not “scrupulously honored.” Mosley,
423 U.S. at 104. In determining whether the police “scrupulously honored” a suspect’s
invocation of the right to remain silent, we must inquire into “the totality of the
circumstances surrounding the interrogation, to ascertain whether the accused in fact
knowingly and voluntarily decided to forgo his rights to remain silent and to have the
assistance of counsel.” Fare v. Michael C., 442 U.S. 707, 724-25 (1979).

          In this case, the circumstances surrounding Fleming’s interrogation make clear
that the police did not “scrupulously honor” his decision to remain silent.           On
November 19, 1999, Detective Robert Lesneski and other officers executed a search
warrant for Fleming’s residence and surrounding curtilage. When the police arrived at
his residence, Fleming initially was “very cooperative,” and even volunteered that the
police would find drugs (hashish) in a barn on his property. After locating the drugs,
No. 07-2311        Fleming v. Metrish                                            Page 35


Detective Lesneski contacted a narcotics team from anther jurisdiction to assist the
search team in dealing with the drug evidence.

       After securing the drugs, Detective Lesneski returned to speak with Fleming.
Detective Lesneski testified that, although Fleming was “not in custody at that time,” he
nevertheless advised Fleming of his Miranda rights and asked Fleming if he would be
willing to talk. Fleming responded that he did not want to talk about “that fucking
homicide.” A “short time later,” Detective Lesneski placed Fleming under arrest based
on the drug evidence collected, handcuffed him in front of his body with plastic hand
ties, and placed him in the back seat of a Michigan State Police cruiser, under the watch
of Trooper Devine.

       Shortly thereafter, Detective Lesneski received a call informing him that the
search team had located a shotgun in a nearby creek. Detective Lesneski immediately
left the area where Fleming was being held to join the search team at that location.
When he arrived, Detective Lesneski was informed that the search team had located a
twelve-gauge shotgun wrapped in plastic and secured with duct tape. Detective Lesneski
briefly examined the weapon and determined that it was a Remington pump-action
shotgun, the same model as the weapon used to shoot the victim. Detective Lesneski
then sent the weapon to the forensics lab for further processing.

       Sometime after Detective Lesneski left Fleming’s residence, Trooper Devine also
decided to join the search team at the creek. Trooper Devine transferred Fleming to the
front passenger seat of a narcotics van now at the scene, and asked Sergeant Robert
Clayton, a narcotics officer with the Ogemaw County Sheriff’s Department, to sit in the
van and watch Fleming. Fleming remained in the van for several hours while the search
of his residence and property continued, allegedly because the police lacked the
personnel to transport Fleming to jail without interrupting the search. During that time,
Sergeant Clayton and Fleming engaged in “small talk.”

       Approximately two hours after Fleming was transferred to Sergeant Clayton’s
custody, the search team returned from the creek. Believing that they had just located
the murder weapon, the returning officers were visibly excited and began celebrating
No. 07-2311        Fleming v. Metrish                                             Page 36


their discovery. From his vantage point in the van, Fleming could see the celebration.
Although Fleming could not hear what was being said outside the van, he testified that
he observed Detective Lesneski gesturing toward him and believed Detective Lesneski
to exclaim, “Hell, yeah, I got you!”

       At this point, Sergeant Clayton told Fleming that things did not look good for
him, and then stated that it would be in Fleming’s “best interest” to “do the right thing.”
According to Fleming, Sergeant Clayton also warned: “If you have any chance at any
thing, . . . I would [] strongly recommend that you get with the program.” When he
testified about this particular moment, Fleming stated that he felt like “a whole garage
full of police officers” was “staring” at him, and he became very “concerned, upset,
[and] nervous.” Almost immediately thereafter, Sergeant Clayton asked Fleming if he
wanted to speak with Detective Lesneski. Fleming relented and agreed to speak with
Detective Lesneski.

       A few minutes later, Sergeant Clayton informed Detective Lesneski that Fleming
wished to speak with him. A few more minutes passed before Detective Lesneski
walked over to the van, excused Sergeant Clayton, and sat down with Fleming. Fleming
recalled that he was very upset at the time, and began feeling nauseous, “like he had to
vomit.” Fleming acknowledges that Detective Lesneski was very accommodating, and
“pulled the van up” so that the other officers would not see Fleming crying. Detective
Lesneski also agreed to open a window or door to give Fleming some air.

       Detective Lesneski testified that, after being summoned to the van by Sergeant
Clayton, he did not ask Fleming “any questions or begin interrogation at all.” In fact,
Detective Lesneski claims that he did not “sa[y] anything at all to [Fleming] prior to him
speaking out on these issues.” Rather, according to Detective Lesneski, Fleming
voluntarily proceeded to make several incriminating statements, ultimately confessing
that he shot and killed Scott York with the shotgun that the police had just found.

       Fleming disputes Detective Lesneski’s version of events, especially with respect
to one crucial issue. Fleming claims that, before he made any incriminating statements,
Detective Lesneski stated that he was confident he had just found the murder weapon,
No. 07-2311        Fleming v. Metrish                                             Page 37


and warned Fleming that “it [would] be within [Fleming’s] best interests to cooperate.”
At this point, Fleming relented and began talking to Detective Lesneski.

       Rather than advising Fleming of his Miranda rights at this point, Detective
Lesneski waited until Fleming had confessed before interrupting him to remind him of
his rights. According to Detective Lesneski, after being readvised of his rights, Fleming
offered more details about the incident, such as the location of the shooting and what
type of gun and shells he used. Approximately one hour later, the police transported
Fleming to the Arenac County Sheriff’s Department, where Fleming was advised of his
Miranda rights yet again, and a recorded statement was taken. In his recorded statement,
Fleming again confirmed that he shot York, but now claimed that York had threatened
to kill Fleming and his family.

       All told, the record indicates that the police advised Fleming of his Miranda
rights on three separate occasions over the course of the day: first, after the police
discovered drugs in Fleming’s barn; second, several hours later in the narcotics van after
Fleming already had confessed to Detective Lesneski; and, finally, at the police station
before Fleming gave a recorded statement. Sergeant Clayton and Detective Lesneski
claim that they never made any promises or threats to Fleming. Fleming, however,
claims that, while he was not “directly” threatened, Sergeant Clayton did warn him to
“get with the program” and Detective Lesneski did shout and gesture at him and then
implored him “to cooperate.”

       Upon Fleming’s motion to exclude his confession, the trial court held a Walker
hearing to determine whether Fleming’s initial inculpatory statements to Detective
Lesneski were admissible at trial. As the majority points out, the parties dispute the
precise issue addressed at the Walker hearing. The State claims that the hearing
addressed only whether Fleming’s statements were “voluntary.” Fleming, on the other
hand, contends that defense counsel also asserted that Fleming’s statements should be
excluded under Mosley because Sergeant Clayton and Detective Lesneski continued to
interrogate Fleming and to pressure him to confess after he invoked his Fifth
No. 07-2311        Fleming v. Metrish                                            Page 38


Amendment right to remain silent. After hearing argument from both sides, the trial
court concluded that Fleming’s statements were admissible.

       After a three-day jury trial, Fleming was convicted of second-degree murder and
possession of a firearm during the commission of a felony. Fleming appealed his
conviction as a matter of right to the Michigan Court of Appeals. In an unpublished
opinion, the Michigan Court of Appeals affirmed Fleming’s conviction. Fleming, 2002
WL 988568. In reaching that conclusion, the Michigan Court of Appeals found that
Fleming had forfeited his Mosley claim because the Walker hearing “addressed only the
voluntariness of his confession.” Id. at *1. The Michigan Court of Appeals thus
reviewed that claim for plain error only. Id. The Michigan Court of Appeals did not
consider the merits of Fleming’s Mosley claim outside the context of its plain-error
inquiry. Id. at *1-2. The Michigan Supreme Court subsequently denied Fleming’s
application for leave to appeal. People v. Fleming, 659 N.W.2d 234 (Mich. 2003).

                                          III.

       In light of the Michigan Court of Appeals’ default ruling, if Fleming’s Mosley
claim is to be considered at all, it must be because the Michigan court’s determination
that Fleming had forfeited the claim was contrary to or an unreasonable application of
controlling law, or unreasonable in light of the record. 28 U.S.C. § 2254(d). And that
is precisely what the majority has determined. Although I agree with the majority’s
conclusion that Fleming’s Mosley claim was not procedurally defaulted, I write
separately on this point only because I disagree with the majority’s suggestion that this
holding rests on the State’s concession that the Mosley issue had been raised in state
court. Whether or not the State concedes the point, the record evinces that Fleming’s
Mosley claim was fairly presented at the Walker hearing, and thus the issue was properly
preserved for appeal.

       The doctrine of procedural default provides: “In all cases in which a state
prisoner has defaulted his federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the claims is barred unless the
prisoner can demonstrate cause for the default and actual prejudice as a result of the
No. 07-2311         Fleming v. Metrish                                             Page 39


alleged violation of federal law, or demonstrate that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Federal
habeas review of a state court judgment thus is precluded under this doctrine only if the
state court judgment “rests on a state-law ground that is both ‘independent’ of the merits
of the federal claim and an ‘adequate’ basis for the court’s decision.” Harris v. Reed,
489 U.S. 255, 260 (1989).

        In the direct review context, the adequate and independent state ground doctrine
is jurisdictional. In the collateral review context, however, the doctrine is based on
comity. See Coleman, 501 U.S. at 730-31 (“Without the rule, . . . habeas would offer
state prisoners whose custody was supported by independent and adequate state grounds
an end run around the limits of this Court’s jurisdiction and a means to undermine the
State’s interest in enforcing its laws.”). Nevertheless, the doctrine has a statutory
dimension in the habeas context because it serves to reinforce AEDPA’s exhaustion
requirement. See id. at 732 (“In the absence of the independent and adequate state
ground doctrine in federal habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in state court.”).

        Under AEDPA’s exhaustion requirement, a habeas petitioner “shall not be
deemed to have exhausted the remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of the State to raise, by any
available procedure, the question presented.” 28 U.S.C. § 2254(c) (emphasis added).
To satisfy this requirement, a claim raised in a habeas petition must be “properly
presented” to the state courts in a procedural context where a merits review is possible.
See O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (“Section 2254(c) requires only
that state prisoners give state courts a fair opportunity to act on their claims.” (emphasis
in original)); Franklin v. Rose, 811 F.2d 322, 324-25 (6th Cir. 1987). Accordingly, it is
not necessary for the state courts to resolve the claim, only that it be fairly presented.
See O’Sullivan, 526 U.S. at 845.

        As to Fleming’s Mosley claim, the Michigan Court of Appeals concluded that the
Walker hearing “addressed only the voluntariness of his confession,” and thus concluded
No. 07-2311         Fleming v. Metrish                                              Page 40


that the claim had been “forfeited.” Fleming, 2002 WL 988568, at *1. The district court
rejected that conclusion as contrary to controlling law, instead finding that the “clear
record” showed that Fleming properly raised the issue and thus preserved his Mosley
claim. Fleming v. Metrish, No. 04-CV-72365, 2007 WL 2875281, at *4 (E.D. Mich.
Sept. 28, 2007) (citing Walker v. Engle, 703 F.2d 959, 967 (6th Cir. 1983)). The
transcript of Fleming’s Walker hearing confirms the district court’s conclusion.

        In determining whether a claim has been “fairly presented,” this Court has
focused on four actions that a defendant can take that are significant in preserving a
claim for habeas review: “(1) reliance upon federal cases employing constitutional
analysis; (2) reliance upon state cases employing federal constitutional analysis;
(3) phrasing the claim in terms of constitutional law or in terms sufficiently particular
to allege a denial of a specific constitutional right; or (4) alleging facts well within the
mainstream of constitutional law.” McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.
2000). As the record demonstrates, Fleming’s counsel took all four of these actions
during the Walker hearing.

        As to the first two factors, there is no serious question that defense counsel relied
on both federal and state authority recognizing that the police must respect a suspect’s
right to remain silent. During closing arguments, defense counsel expressly referred to
the Supreme Court’s decision in Mosley, as well as cited to and quoted from People v.
Catey, 356 N.W.2d 241 (Mich. Ct. App. 1984), the leading Michigan case interpreting
and applying Mosley.

        Relying on both Catey and Mosley, Fleming’s counsel also unambiguously
framed the issue in terms of a Mosley violation, arguing that Fleming’s confession
should be excluded because the police “ignored” his assertion of his Fifth Amendment
right to remain silent. Quoting from Catey, defense counsel also specifically argued that
the “subsequent interrogation” by Sergeant Clayton and Detective Lesneski had “the
characteristics of a repeated effort to wear down the defendant’s resistance.” To support
that claim, defense counsel elicited testimony that went not just to the voluntariness
issue, but also to the circumstances under which Fleming ultimately was persuaded to
No. 07-2311            Fleming v. Metrish                                                          Page 41


confess despite his earlier assertion of his intention to remain silent. The record thus
confirms that defense counsel also satisfied the final two factors that this Court has
considered “significant to the determination whether a claim has been ‘fairly
presented.’” McMeans, 228 F.3d at 681.

         Despite this clear record, the State argues that Fleming failed to fairly present his
Mosley claim to the trial court because Fleming’s suppression motion challenged the
admissibility of the confession on voluntariness grounds only. During closing arguments
at the Walker hearing, the State certainly urged the court to focus on “nothing but
voluntariness,” and the trial court did state that the “only issue” it needed to resolve was
“whether or not it was voluntary.” But the trial court apparently understood the
voluntariness inquiry as encompassing the Mosley issue,6 as it ultimately held that,
“[g]iven all the circumstances, I – I believe that [Fleming’s] statement under Edwards,
Mosley, Katey [sic] that under this fact scenario, it’s voluntary.”

         In any event, regardless of whether the state trial court couched its ruling in terms
of voluntariness, the only relevant question for determining procedural default is whether
Fleming “fairly presented” his Mosley claim to the state courts. See O’Sullivan, 526
U.S. at 844-45. Because defense counsel undoubtedly did so, I would affirm the district
court’s determination that the Michigan Court of Appeals’ ruling that Fleming forfeited
his Mosley claim is an “unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).




         6
           The trial court seems to have conflated the inquiry into the voluntariness of Fleming’s confession
with the inquiry required under Mosley. The two inquiries, however, are distinct. “While the suspect’s
state of mind is central to the voluntariness finding, the Mosley test focuses on what the police did, and
when, after the suspect exercised his or her right to remain silent.” United States v. Barone, 968 F.2d
1378, 1384 (1st Cir. 1992). Thus, under Miranda and Mosley, “a court need determine specifically
whether there has been a voluntary waiver only after the government has carried its burden of showing that
it complied with the required procedures.” Id. at 1383 (citations omitted).
No. 07-2311         Fleming v. Metrish                                               Page 42


                                             IV.

        Having rejected the Michigan Court of Appeals’ default ruling as contrary to
controlling authority or unreasonable in light of the record, our review of Fleming’s
Mosley claim is not constrained by that court’s plain-error review. Regardless of
whether the Michigan courts addressed aspects of Fleming’s claim in conducting that
inquiry, it is evident that the Michigan courts never considered the merits of Fleming’s
Mosley claim outside the context of the plain-error inquiry. With no state court
adjudication “on the merits” to which we must defer, we review the claim de novo.

        In the habeas context, this Court reviews a district court’s legal conclusions de
novo, but will not set aside its factual findings unless they are clearly erroneous. Dyer
v. Bowlen, 465 F.3d 280, 283-84 (6th Cir. 2006). State-court determinations, on the
other hand, generally are governed by the standard of review set forth in the AEDPA.
28 U.S.C. § 2254(d). As explained above, however, AEDPA’s deferential standard of
review applies only to claims that were adjudicated “on the merits” by the state courts.
28 U.S.C. § 2254(d). Where a state court does not reach the merits of a claim, this Court
applies de novo review. Danner, 448 F.3d at 376; Maples, 340 F.3d at 436.

        Here, the Michigan Court of Appeals found that Fleming had forfeited his Mosley
claim by failing to raise it at the Walker hearing. Fleming, 2002 WL 988568, at *1.
Based on the default ruling, the Michigan Court of Appeals reviewed Fleming’s claim
for plain error only. Id. Under that standard, the Michigan Court of Appeals required
Fleming to establish that the trial court’s ruling regarding the “the voluntariness of his
confession” was in error, and that “the error was plain, i.e. clear or obvious . . . [and] the
plain error affected substantial rights.” Id. In addition, the Michigan Court of Appeals
noted that, even if Fleming made such a showing, “an appellate court must then exercise
its discretion in deciding whether to reverse.” Id. (emphasis added). The court further
noted that “[r]eversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affected the
fairness, integrity or public reputation of judicial proceedings independent of the
defendant’s innocence.” Id. (internal quotation marks omitted). Clearly, the application
No. 07-2311         Fleming v. Metrish                                              Page 43


of the plain-error standard of review placed significant additional burdens on Fleming
over and above the showing required under Mosley.

        For the reasons explored in detail above, I believe that controlling authority
dictates that the Michigan Court of Appeals’ plain-error analysis does not constitute an
adjudication “on the merits” for purpose of AEDPA. See Benge, 474 F.3d at 246;
Lundgren, 440 F.3d at 765. Ignoring this controlling precedent, the majority concludes
that AEDPA’s deferential standard of review applies. I cannot subscribe to that
conclusion.

        In light of the Michigan court’s ruling that Fleming had forfeited his Mosley
claim, if we are to consider that claim at all it must be because the Michigan court’s
default ruling was contrary to or an unreasonable application of controlling law or
unreasonable in light of the record. 28 U.S.C. § 2254(d). Although the majority rejects
the Michigan court’s determination that the claim had been procedurally defaulted, it
nevertheless continues to insist that the state court’s adjudication is entitled to deference
under AEDPA. But once we determine that the Michigan court’s default ruling was in
error, we no longer are bound by whatever “safety valve” review the state courts may
have applied to avoid serious injustice, regardless of whether that inquiry explored the
merits of Fleming’s claim to some extent. See Lundgren, 440 F.3d at 765 (holding that
a state court’s plain-error inquiry “is not equivalent to a review of the merits”); see also
Roy, 907 F.2d at 390 (holding that a state court’s plain-error inquiry is “not sufficiently
a ruling on the merits”).

        If, as the majority now holds, the Michigan court’s default ruling is wrong as a
matter of law, then we no longer owe deference to the Michigan court’s undeniably more
burdensome review of Fleming’s claim. Thus, the deferential review required under
AEDPA is inapplicable, and we must review the claim de novo. Maples, 340 F.3d at 436
(“Where, as here, the state court did not assess the merits of a claim properly raised in
a habeas petition, the deference due under AEDPA does not apply.”).
No. 07-2311        Fleming v. Metrish                                            Page 44


                                           V.

       Applying de novo review, as I conclude we must, it is evident that the police
failed to fully respect and scrupulously honor Fleming’s decision to cut off questioning.

         A. A Suspect’s Fifth Amendment Right to Cut Off Questioning

       The Fifth Amendment provides that “[n]o person shall be . . . compelled in any
criminal case to be a witness against himself.” U.S. CONST. amend. V. This privilege
against self-incrimination requires that law enforcement officials “must cease”
questioning any suspect who invokes his or her right to remain silent. Miranda, 384
U.S. at 473-74.

       The Miranda safeguards “come into play whenever a person in custody is
subjected to either express questioning or its functional equivalent.” Rhode Island v.
Innis, 446 U.S. 291, 300-01 (1980). In other words, the term “interrogation” under
Miranda “refers not only to express questioning, but also to any words or actions on the
part of the police . . . that the police should know are reasonably likely to elicit an
incriminating response from the suspect.”       Id. at 301.   Whether police conduct
constitutes “interrogation” is determined “without regard to objective proof of the
underlying intent of the police.” Id. Thus, if a suspect invokes his or her Fifth
Amendment right to remain silent, the police “must cease” all interrogation of the
suspect, including any comments that “the police should know are reasonably likely to
elicit an incriminating response.”

       In defining the scope of Miranda’s protections, the Supreme Court has concluded
that “the admissibility of statements obtained after the person in custody has decided to
remain silent depends . . . on whether his right to cut off questioning was scrupulously
honored.” Mosley, 423 U.S. at 104 (internal quotation marks omitted) (emphasis added).
That is to say, the police violate a suspect’s Fifth Amendment rights where they “fail[]
to honor a decision of a person in custody to cut off questioning, either by refusing to
discontinue the interrogation upon request or by persisting in repeated efforts to wear
down his resistance and make him change his mind.” Id. at 105-06. The Mosley Court,
No. 07-2311         Fleming v. Metrish                                              Page 45


however, rejected as “extreme” the notion that Miranda requires “a blanket prohibition
against the taking of voluntary statements or a permanent immunity from further
interrogation, regardless of the circumstances,” reasoning that such a blanket rule
“would transform the Miranda safeguards into wholly irrational obstacles to legitimate
police investigative activity, and deprive suspects of an opportunity to make informed
and intelligent assessments of their interests.” Id. at 102.

        The facts in Mosley supported the conclusion that the defendant’s rights had been
scrupulously honored because his subsequent statements were made to another officer,
regarding another crime, and after a significant period of time had elapsed since the
suspect had invoked his Fifth Amendment rights. 423 U.S. at 104-05. In addition, the
Court emphasized that the suspect “was given full and complete Miranda warnings at
the outset of the second interrogation,” and was “reminded again that he could remain
silent and could consult with a lawyer, and was carefully given a full and fair
opportunity to exercise these options.” Id. at 104-05 (emphasis added).

        In assessing Fleming’s claim, we first must determine whether the comments
made by Detective Lesneski and Sergeant Clayton constitute “interrogation” under Innis.
If so, we then must consider whether the police fully respected Fleming’s decision to
remain silent. That inquiry requires us to consider the totality of the circumstances,
including, among other things, whether: (1) Fleming was advised of his Miranda rights
before the initial interrogation; (2) questioning stopped immediately once Fleming
asserted his right to remain silent; (3) the police waited a significant period of time after
Fleming’s invocation of his right to remain silent before questioning him again;
(4) Fleming received fresh Miranda warnings before the interview that led to his
confession; and (5) the subsequent interrogation concerned the same crime that was the
subject of the first interrogation.      Because we must examine the totality of the
circumstances, these factors are merely signposts that help guide our inquiry. The
fundamental consideration is, as the First Circuit has put it, whether the suspect
remained “in charge of the decision whether and to whom he would speak.” United
States v. Andrade, 135 F.3d 104, 107 (1st Cir. 1998).
No. 07-2311        Fleming v. Metrish                                             Page 46


                              B. Innis and Mosley Analysis

       Approximately one hour into the search of Fleming’s property, the police
discovered drugs in Fleming’s barn. At that point, Detective Lesneski advised Fleming
of his rights, and asked if Fleming would be willing to talk to him.              Fleming
emphatically stated that he would not discuss any matters related to the homicide.
Although Fleming did not state that he wished to remain “silent,” the Supreme Court has
long held that “no ritualistic formula or talismanic phrase is essential in order to invoke
the privilege against self-incrimination.” Emspak v. United States, 349 U.S. 190, 194
(1955). Fleming’s refusal to discuss the homicide was sufficient to invoke his Fifth
Amendment right to remain silent. See McGraw v. Holland, 257 F.3d 513, 518-19 (6th
Cir. 2001) (holding that suspect invoked her Fifth Amendment privilege where she
repeatedly made statements such as “I don’t want to talk about it” in response to
questions about the crime).

       Detective Lesneski initially respected Fleming’s decision, and immediately
stopped questioning Fleming. Fleming was then arrested, handcuffed, and placed in the
backseat of a state police vehicle. An hour or so later, Fleming was transferred from the
backseat of the police cruiser to the front passenger seat of a police van.

       There is no indication in the record that Fleming was transferred to Sergeant
Clayton’s custody in order to facilitate further questioning. Sergeant Clayton was called
to the scene only after the search was underway, and only because the search team
discovered narcotics on the premises. Moreover, Sergeant Clayton is a member of the
narcotics team from the Ogemaw County Sheriff’s Department, not the Arenac County
Sheriff’s Department, which was leading the investigation into York’s murder. It thus
is possible that Sergeant Clayton was unaware of the underlying homicide investigation
that was the impetus for the search being conducted. In fact, Sergeant Clayton testified
that he did not know what evidence the rest of the search team was looking for when
they left to search the nearby creek.

       Sergeant Clayton’s motives, however, are irrelevant. Innis, 446 U.S. at 301.
Because Fleming had invoked his Fifth Amendment right to remain silent, all coercive
No. 07-2311        Fleming v. Metrish                                             Page 47


police practices “must cease,” and the police were required to “scrupulously honor”
Fleming’s decision to remain silent. Although Detective Lesneski’s direct interrogation
ceased, the police officers at the scene—whether intentionally or not is
irrelevant—persisted “in repeated efforts to wear down [Fleming’s] resistance” to
questioning. Mosley, 423 U.S. 105-06. Fleming was arrested, placed in handcuffs, and
then detained in custody at the scene for several hours while the search of his residence
and property continued. The police kept Fleming in position to observe their search, and
celebrated their discovery of the shotgun right in front of him. In fact, on Fleming’s
account, Detective Lesneski gestured in Fleming’s direction and declared “Hell, yeah,
I got you!” At this point, Sergeant Clayton told Fleming that things did not look good
for him and then stated that it would be in Fleming’s “best interest” to “do the right
thing.” According to Fleming, Sergeant Clayton also “strongly recommend[ed]” that
Fleming “get with the program.” Sergeant Clayton then asked Fleming whether he
wished to talk to Detective Lesneski. At this point, Fleming relented.

       Considering the totality of the circumstances, it is evident that the police did not
“scrupulously honor” Fleming’s decision to remain silent. Even if Fleming’s version of
events is discounted, Sergeant Clayton’s statement that Fleming should “do the right
thing,” when considered in context, rose above the level of mere admonition. As an
experienced police officer, Sergeant Clayton certainly should have known that such a
statement, especially when made at the scene of an ongoing warrant search and shortly
after the discovery of the murder weapon, was “reasonably likely to elicit an
incriminating response.” Innis, 446 U.S. at 301.

       That conclusion is all the more certain if Fleming’s version of events is accepted.
According to Fleming, Sergeant Clayton also “strongly” encouraged him to “get with
the program.” Fleming also claims that Detective Lesneski explicitly advised him that
it was in his best interest “to cooperate.” Although neither Sergeant Clayton nor
Detective Lesneski ever directly asked Fleming about the homicide, these statements,
especially when taken together, demonstrate a persistent and not-so-subtle effort to
persuade Fleming to discuss the homicide. Accordingly, I respectfully must disagree
No. 07-2311            Fleming v. Metrish                                                         Page 48


with the majority’s conclusion that these statements do not rise to the level of
“interrogation” under Innis.

         Recognizing the inherently “coercive pressures of the custodial setting,” the
Mosley Court emphasized that, once a suspect decides to terminate an interrogation, that
decision must be “fully respected” and the police must not “try either to resume the
questioning or in any way to persuade [a suspect] to reconsider his position.” 423 U.S.
at 104 (emphasis added). Although Mosley stopped short of creating a per se rule
prohibiting the police from ever asking a suspect to reconsider his or her refusal to
answer questions, it does require that the police make every effort to ensure that “such
reconsideration is urged in a careful, noncoercive manner at not too great length and in
the context that a defendant’s assertion of his right not to speak will be honored.”
United States v. Collins, 462 F.2d 792, 797 (2d Cir. 1972).

         The conduct of the police in this case is dramatically different in every relevant
respect from the conduct that the Supreme Court found acceptable in Mosley. Here, the
police did not seek to reinitiate questioning regarding a different crime. The police also
did not reinitiate contact with Fleming in a careful or noncoercive manner. Nor did the
police readvise Fleming of his Miranda rights before taking his statement. Rather, the
police handcuffed Fleming and kept him locked in a car for several hours.7 Then, they
rejoiced in the discovery of evidence right in front of him, with the lead investigator
gesturing and shouting at him. After building a rapport with Fleming during hours of
“small talk,” Sergeant Clayton then advised Fleming to “do the right thing” and
encouraged him to “get with the program.” And putting to rest any doubt that these
comments were intended to do anything other than wear down Fleming’s resistance to



         7
            The majority considers the time that elapsed between Fleming’s initial refusal to answer
questions about the homicide to cut in favor of its conclusion that there is no Mosley violation. Although
the time factor may lean slightly in the State’s favor, this cannot be the crucial factor in determining
whether a Fifth Amendment violation occurred in this case. Unlike Mosley, the conditions of Fleming’s
detainment did not permit him to independently reconsider his decision to remain silent. Fleming was kept
in handcuffs at the scene the entire time. He also was subjected to repeated efforts by the police to
convince him to discuss the homicide. Considering the totality of the circumstances, it does not appear
that sufficient time elapsed to neutralize the “inherently compelling pressures” of Fleming’s circumstances.
Miranda, 384 U.S. at 467. In any event, other factors are much more probative of whether a Mosley
violation occurred in this case.
No. 07-2311            Fleming v. Metrish                                                        Page 49


questioning, Sergeant Clayton almost immediately asked Fleming if he wanted to speak
to Detective Lesneski. And when Detective Lesneski arrived, he also pressured Fleming
“to cooperate.”8 At this point, Fleming relented.

         If the rule announced in Mosley is to have any meaning at all, certainly it must
protect against such coercive tactics. Certainly, it must prevent law enforcement
personnel from repeatedly pressuring a suspect to “do the right thing” and “get with the
program.” Certainly, it must preclude the police from explicitly pressuring a suspect “to
cooperate” after the suspect already has invoked his or her Fifth Amendment right to cut
off questioning.

         Whether overt or more subtle, Mosley protects against the state’s attempts to
encourage, pressure, persuade, or coerce a suspect to abandon his or her decision to
remain silent. Although Mosley permits the police to present new information to a
suspect so that he is able “to make informed and intelligent assessments of [his]
interests,” 423 U.S. at 102, encouraging a suspect to “get with the program” and “do the
right thing” so that he is not “sorry” for something he has not said certainly exceeds the
scope of permissible interaction with a defendant who already has invoked his right to
remain silent. Indeed, each of these comments evinces an unequivocal intent to persuade
Fleming to confess, or at least abandon his decision to remain silent. Such efforts plainly
are inconsistent with the duty of the police under Mosley to “scrupulously honor” a
suspect’s decision to remain silent.

         Contrary to the majority’s suggestion, Fleming is not required to show that the
police interrogation was “very, very one-sided,” as was the case in Thompkins v.
Berghuis. Rather, Fleming must show only that the police failed to “scrupulously honor”
his decision to remain silent. 423 U.S. at 104. In fact, it is the state that bears the



         8
           In an effort to support its tenuous conclusion, the majority mischaracterizes some of Detective
Lesneski’s comments. In particular, the majority claims that Detective Lesneski’s “suggestion” to
cooperate was accompanied by “a caution not to say anything about which he [Fleming] would be ‘sorry.’”
But, as the majority opinion concedes earlier, Detective Lesneski told Fleming that he should not “be sorry
for something you have or haven’t said.” Far from urging Fleming to be cautious, the suggestion that
Fleming should not be sorry for something he has not said is yet another example of Detective Lesneski
trying to chip away at Fleming’s decision to remain silent.
No. 07-2311        Fleming v. Metrish                                            Page 50


“heavy burden” of demonstrating that the right to remain silent, once invoked, in fact has
been “knowingly and voluntarily waived.” North Carolina v. Butler, 441 U.S. 369, 372-
73 (1979) (citation omitted). As the Third Circuit has noted, in those cases “where the
right to remain silent was held not to have been scrupulously honored, the circumstances
lead to a conclusion that the police resumed questioning for no other reason than to
induce the defendant to change his mind.” Vujosevic v. Rafferty, 844 F.2d 1023, 1029
(3d Cir. 1988) (citing United States v. Charlton, 565 F.2d 86 (6th Cir. 1977)). Such is
the case here, as the comments by Sergeant Clayton and Detective Lesneski obviously
were made “for no other reason than to induce” Fleming to abandon his decision not to
answer questions about the homicide.

       In describing the twin pillars of Miranda’s prophylactic warnings—the right to
counsel and the right to remain silent—the Supreme Court repeatedly has insisted on a
“relatively rigid” application of these requirements. Fare, 442 U.S. at 718. Underlying
the Court’s insistence on such rigidity is the recognition that “the coercive setting of
custodial interrogation is ready-made for the infringement, whether intentional or
inadvertent, of constitutional protections, such that suspects must be plainly advised of
their rights so they may act on them.” Van Hook v. Anderson, 488 F.3d 411, 430 (6th
Cir. 2007) (Cole, J., dissenting). A rigid application of Mosley thus is necessary to
protect against the inherently coercive pressures of the custodial setting, and to ensure
that an in-custody confession is the result of a knowing and voluntary waiver of an
individual’s privilege against self-incrimination.

       If, as the majority believes, the rule announced in Mosley tolerates the coercive
pressures applied here, Mosley’s admonition that the police must “scrupulously honor”
and “fully respect” a suspect’s decision to cut off questioning will be rendered nearly
meaningless. Indeed, on the majority’s view, Mosley will protect against only the most
egregious coercive practices.      Badgering a suspect under the hot lights of an
interrogation room is not the only means of wearing down a suspect’s resistance to
answering questions. To remain a viable deterrent against more subtle coercive
practices, Mosley must be applied rigidly. See Van Hook, 488 F.3d at 430-31 (Cole, J.,
No. 07-2311        Fleming v. Metrish                                             Page 51


dissenting) (detailing the Supreme Court’s insistence on a rigid application of the
parallel rule of Edwards v. Arizona, 451 U.S. 477 (1981)).

       Because the investigating officers did not scrupulously honor Fleming’s decision
to cut off questioning, any statements obtained after Fleming asserted his Fifth
Amendment privilege were obtained in violation of Mosley and thus should not have
been admitted into evidence.

                             C. Harmless Error Analysis

       Where a confession has been erroneously admitted in violation of a defendant’s
Fifth Amendment rights, this constitutional error is subject to a harmless error analysis.
See Arizona v. Fulminante, 499 U.S. 279, 310-11 (1991) (Rehnquist, C.J., delivering the
opinion of the Court with respect to this issue). To determine whether an error is
harmless, this Court considers the “‘prejudicial impact of [the] constitutional error’” and
“whether the constitutional violation ‘had a substantial and injurious effect or influence
in determining the jury’s verdict.’” Vasquez v. Jones, 496 F.3d 564, 575 (6th Cir. 2007)
(quoting Fry v. Pliler, 551 U.S.112, 127 S. Ct. 2321, 2328 (2007), and Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)). This standard applies in the context of § 2254
habeas claims regardless of whether the state courts recognized the error. Vasquez, 496
F.3d at 575.

       Given the importance of Fleming’s statements in proving the State’s case, the
admission of Fleming’s confession was not harmless error.                       Fleming’s
confession—along with his recorded statements and testimony at trial, which are
discussed below—undoubtedly was the strongest evidence of his guilt. Other than
Fleming’s own statements, the prosecution introduced no evidence corroborating that
Fleming shot York or was ever present at the scene of the crime. Without Fleming’s
statements, the prosecution also would have been unable to provide the jury with a
motive. Fleming’s statements also were crucial in linking the gun to Fleming because
No. 07-2311           Fleming v. Metrish                                                       Page 52


there was no physical evidence linking Fleming to the murder weapon.9 Consequently,
without Fleming’s own incriminating statements, the prosecution would not have been
able to establish the most critical elements of its case against Fleming.

         Fleming’s confession and testimony thus were very powerful and prejudicial
evidence. See Fulminante, 499 U.S. at 296 (White, J., delivering the opinion of the
Court as to this issue) (“A confession is like no other evidence. Indeed, the defendant’s
own confession is probably the most probative and damaging evidence that can be
admitted against him.” (internal quotations and citation omitted)). Therefore, the
admission of Fleming’s incriminating statements was not harmless error because it
prejudicially impacted Fleming’s trial and had a “substantial and injurious effect or
influence in determining the jury’s verdict.”                Vasquez, 496 F.3d at 575.              See
Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir. 1990) (en banc) (finding that
admission of confession obtained in violation of Miranda was not harmless error
because “the portion of [the defendant’s] confession taken after the Miranda violation
– other than the inferences to be made from the fact of the robbery and shooting – was
the only concrete, noncircumstantial piece of evidence the state had to prove the
premeditation element of the crime”).

                    D. Post-Miranda Statements and Trial Testimony

         The State argues that any error was harmless because Fleming’s first confession
was merely cumulative of Fleming’s subsequent statements to the police and his own
testimony at trial.       This argument, however, assumes that Fleming’s subsequent
statements to the police and his testimony at trial should not also be excluded. That
assumption is mistaken. Although Fleming made additional incriminating statements
to the police after he received a fresh Miranda warning, and also testified at trial to




         9
          The only evidence to this effect was testimony that Fleming owned a shotgun that looked similar
to or was the same model as the shotgun found in the creek. Although the shotgun was discovered in a
stream on or near Fleming’s property, Fleming was renting the property at the time, the property was
expansive and open, and the location where the gun was found was a part of the creek that was “kind of
a party spot, or used to be.”
No. 07-2311            Fleming v. Metrish                                                         Page 53


shooting York, those statements also should have been excluded because Fleming’s first
confession was elicited in violation of Mosley.

         Under Oregon v. Elstad, 470 U.S. 298 (1985), if an interrogation elicits a
voluntary confession but the interrogating officers failed to administer a Miranda
warning, subsequent incriminating statements are not necessarily poisoned by the fact
that the first confession occurred without a proper Miranda warning. Id. at 309-10.
However, Elstad applies only where the first confession is “unaccompanied by any
actual coercion or other circumstances calculated to undermine the suspect’s ability to
exercise his free will” or otherwise the product of a constitutional violation, such as
“police infringement of the Fifth Amendment itself.” Id. 309.

         In this case, unlike Elstad, the failure of the police to scrupulously honor
Fleming’s invocation of his right to remain silent was not merely a procedural error in
administering Miranda warnings. Rather, the investigating officers’ repeated efforts to
wear down Fleming’s resistance to questioning constitute “police infringement of the
Fifth Amendment itself.”10

         Other relevant factors that traditionally guide our inquiry into whether a
confession obtained in the wake of a Fifth Amendment violation should be admitted into
evidence also weigh in favor of exclusion. In deciding whether a second confession has
been tainted by a prior coerced statement, the Supreme Court has instructed courts to
“examine the surrounding circumstances and the entire course of police conduct with
respect to the suspect.” Elstad, 470 U.S. at 318. In particular, courts must consider “the
time that passes between confessions, the change in place of interrogations, and the


         10
            Logically, this would seem to be true of all cases involving Mosley violations, especially where
the police engaged in deliberate “efforts to wear down [a suspect’s] resistance and make him change his
mind,” Mosley, 423 U.S. at 105-06, because such coercive police tactics are akin to the deliberate “police
strategy adapted to undermine the Miranda warnings” that the Supreme Court held in Missouri v. Seibert,
542 U.S. 600, 616 (2004) (plurality), requires the exclusion of post-Miranda statements. Taken together
with Justice Kennedy’s more narrow concurrence, a majority of the Court in Seibert agreed that a
“deliberate” question-first strategy would preclude post-warning statements unless curative measures were
taken. Id. at 622 (Kennedy, J., concurring) (“The admissibility of postwarning statements should continue
to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the
deliberate two-step strategy has been used, postwarning statements that are related to the substance of
prewarning statements must be excluded unless curative measures are taken before the postwarning
statement is made.”).
No. 07-2311        Fleming v. Metrish                                            Page 54


change in identity of the interrogators.” Id. at 310. Whether effective Miranda warnings
preceded the subsequent statements also is relevant. Westover v. United States, decided
together with Miranda, 384 U.S. at 496-97.

       In Fleming’s case, an examination of these factors makes clear that there was no
“break in the stream of events . . . sufficient to insulate [his post-Miranda] statement
from the effect of all that went before.” Clewis v. State of Texas, 386 U.S. 707, 710
(1967). Fleming’s subsequent incriminating statements were elicited in close proximity
to the first, unconstitutionally-obtained confession. See Seibert, 542 U.S. at 614 (“[I]t
would ordinarily be unrealistic to treat two spates of integrated and proximately
conducted questioning as independent interrogations subject to independent evaluation
simply because Miranda warnings formally punctuate them in the middle.”). And,
unlike other cases where this Court has permitted the admission of subsequent
statements, there was no relevant change in Fleming’s custodial conditions. See Coomer
v. Yukins, 533 F.3d 477, 491 (6th Cir. 2008) (upholding as reasonable the admission of
subsequent statements elicited after “several hours had passed since her first oral
confession” because police informed the defendant that “circumstances had changed
[and] that she was now in custody”); United States v. McConer, 530 F.3d 484, 497 (6th
Cir. 2008) (finding no error in admission of incriminating post-Miranda statements made
after initial unwarned but voluntary statements that were not elicited as the result of
“interrogation”). Given that Detective Lesneski’s second set of Miranda warnings was
delivered in the middle of a confession that was elicited in violation of Mosley,
Fleming’s post-Miranda statements also should have been excluded. See Untied States
v. Pacheco-Lopez, 531 F.3d 420, 429-30 (6th Cir. 2008).

       Whether Fleming’s trial testimony also is tainted by the admission of Fleming’s
prior incriminating statements is a closer call. Because the trial court failed to exclude
statements elicited in violation of Fleming’s Fifth Amendment rights, it is impossible to
say whether Fleming would have adopted a different trial strategy and decided not to
testify in his own defense. Compare Burks v. Perini, No. 85-3507, 1986 WL 18388, at
*1 (6th Cir. Nov. 25, 1986) (“Accordingly, this court concludes that the government’s
No. 07-2311        Fleming v. Metrish                                             Page 55


use of Burks’ involuntary statement did not induce him to testify on his own behalf and
that the trial court’s decision to admit his confession, although erroneous under the
circumstances, constituted harmless error.”). Because the entire thrust of Fleming’s trial
strategy was determined by the trial court’s failure to exclude his confession, however,
Fleming’s trial testimony must be set aside in determining whether harmless error
occurred. See Kordenbrock, 919 F.2d at 1099-1100.

                                           VI.

        For the foregoing reasons, I respectfully dissent from the majority’s resolution
of Fleming’s Mosley claim. I would affirm the district court’s decision to grant the
habeas petition on that basis and order that Fleming be retried or released.
