                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0587n.06

                                            No. 05-6798                                  FILED
                                                                                       Sep 02, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


                                                    )
                                                    )
RONEIL CORNELISON,                                  )
                                                    )
       Petitioner-Appellant,                        )    ON APPEAL FROM THE UNITED
v.                                                  )    STATES DISTRICT COURT FOR THE
                                                    )    EASTERN DISTRICT OF KENTUCKY
JOHN MOTLEY, Warden,                                )
                                                    )
       Respondent-Appellee.                         )
                                                    )
                                                    )

Before: MERRITT, GIBBONS, ROGERS, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Roneil Cornelison appeals

the district court’s order denying his habeas petition under 28 U.S.C. § 2254. For the following

reasons, we affirm the district court’s decision.

                                                    I.

       On January 15, 1998, Cornelison was indicted by a grand jury for his involvement in the

November 4, 1997, beating death of Ricky Noland in Richmond, Kentucky. Following his arrest,

Cornelison gave a videotaped statement (“the confession tape”) in which he was informed of his

rights under Miranda v. Arizona, 384 U.S. 436 (1966), confirmed that he understood those rights,

and proceeded to make self-incriminating statements. Cornelison filed a motion to suppress his

confession. The state trial court reviewed the confession tape, held an evidentiary hearing at which

the tape was played and the police officer testified, and found the following facts:
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       In this case, the detective commences reading the requisite Miranda rights to the
       defendant. The defendant inquires, “What if I want my lawyer present first?” The
       detective responds[,] “that’s up to you.” Detective Pedigo repeated for the defendant
       that he had the right to stop the questioning at any time in order to have a lawyer
       present. After some conversation, the defendant commences writing on the waiver
       form and then says, “I would like to have a lawyer, though, I want that on the record”
       and writes on the waiver form. . . . [At the suppression hearing,] Detective Pedigo
       testified that he was unsure and wanted to clarify the defendant’s intent when he next
       asked, “Do you want your lawyer present or do you want to talk to us . . . whichever
       you want to do.” Then the defendant completed the form and laid down the pen.
       Detective Pedigo responded with, “Does that mean that you want to talk to us?”; and
       the defendant nods his head. The detective says, “Is that a yes?”, and the defendant
       answers, “Yes.”

Joint Appendix (“JA”) 48–49.

       Cornelison then gave a statement in which he confessed that he “got his kicks in” when he

and two others beat Noland. The trial court denied the motion to suppress, finding that Cornelison’s

statements were merely a clarification of his rights and not an invocation of his right to counsel. The

trial court noted that Cornelison was filling out the waiver form when he made reference to counsel

“on the record” and held that a reasonable officer would not have understood Cornelison to have

invoked his Sixth Amendment right to counsel.

       A jury found Cornelison guilty of murder as a principal or an accomplice, and he received

a 30-year sentence. He appealed his conviction to the Kentucky Supreme Court, which affirmed his

conviction. Among the issues it decided, the Kentucky Supreme Court affirmed the trial court’s

denial of Cornelison’s suppression motion, relying upon a videotape of the suppression hearing (“the

suppression hearing tape”). In a footnote, the court remarked that Cornelison had made a motion

to supplement the record with the original confession tape, but “it appears as though said motion was

never filed and thus the record contains only a videotape of the suppression hearing during which

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the taped statement was made. As such, the quality of the statement is poor and portions are

unintelligible.” JA 164 n.1.

       The state supreme court then recounted the exchange between the police and Cornelison:

       A review of [Cornelison’s] statement reflects that after [he] was read his Miranda
       rights, he inquired, “What if I want my lawyer present first?” The detective informed
       [Cornelison] that the decision was up to him and that he had the right to stop the
       questioning at any point if he wanted an attorney present. The conversation
       continued with the detective explaining to [Cornelison] the waiver of rights form.
       After a short period of time, [Cornelison] appears to sign the form while stating, “I
       would like to have a lawyer, though, I want that on the record.” The detective
       thereafter asked, “Do you want your lawyer present or do you want to talk to us?”
       [Cornelison] then completed the form and laid down the pen. The detective stated,
       “Does that mean you want to talk to us?” [Cornelison] nodded his head affirmatively
       and then responded “yes.”

JA 164–65.

       The court determined that Cornelison “inquired about having an attorney present . . . while

signing the waiver form.” JA 165. Although Cornelison may have used an attorney had one been

present, the court found that “he preferred to continue talking.” JA 165. The court then applied

Miranda and Davis v. United States, 512 U.S. 452 (1994) (holding that an “ambiguous or equivocal”

request for counsel does not require authorities to cease questioning), and held that Cornelison’s

“seeking information about an attorney while signing the waiver form created an ambiguity and, as

a result, the detective was justified in his belief that [Cornelison] was not unequivocally invoking

his right to counsel but rather clarifying the existence and effect of that right.” JA 166.

       The Kentucky Supreme Court denied Cornelison’s motion to supplement and for rehearing,

which was filed after the court issued its opinion. In this motion, Cornelison’s counsel stated that

he was unable to obtain a copy of the confession tape from Cornelison’s relatives and chose to

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examine closely the suppression hearing tape. He conceded that the suppression hearing tape is

“certainly less than easily audible” and asked the court to reconsider its opinion once the confession

tape was found. Cornelison did not submit the original confession tape as part of the record before

the state supreme court and, instead, relied upon the suppression hearing tape that the state supreme

court considered. Thereafter, Cornelison, pro se, filed a post-conviction motion to vacate the

conviction and sentence pursuant to Ky. R. Crim. P. 11.42, which the state courts denied. JA

209–10. His conviction became final on March 10, 2004.

        In December 2004, Cornelison filed this habeas action in federal district court. Among his

claims, he alleged that the state courts erroneously denied his motion to suppress the confession.

Cornelison’s counsel prepared a transcript of the confession tape for the federal proceedings, and,

although his petition refers to “an intelligible copy of the videotaped interrogation,” the district court

docket does not indicate that Cornelison ever filed the confession tape itself with the district court.

        The district court adopted the magistrate judge’s recommendation to dismiss the petition in

its entirety on the merits. On the suppression issue, the district court held that the state supreme

court had correctly applied Miranda in affirming Cornelison’s conviction. JA 233–40. The district

court also adopted the magistrate judge’s conclusion that, under Estelle v. McGuire, 502 U.S. 602

(1991), habeas corpus does not lie to review questions of state evidentiary law. JA 239. We granted

Cornelison a certificate of appealability for two issues concerning the Miranda claim only. Order

Granting Certificate of Appealability, Cornelison v. Motley, 05-6798 (6th Cir. Feb. 14, 2007).




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                                                  II.

       We review the decision of the district court to deny habeas relief de novo. Harris v. Stovall,

212 F.3d 940, 942 (6th Cir. 2000). This case is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq., which prohibits federal courts from

issuing writs of habeas corpus on claims adjudicated on the merits in state court unless that

adjudication:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or
       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). As the Supreme Court has explained, a decision is “contrary to” clearly

established federal law “if the state court arrives at a conclusion opposite to that reached by [the

Supreme Court] on a question of law or if the state court decides a case differently than this Court

has on a set of materially indistinguishable facts.” Terry Williams v. Taylor, 529 U.S. 362, 413

(2000). A state court unreasonably applies governing federal law if it “identifies the correct

governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id.

       The state courts’ factual determinations “are presumed correct absent clear and convincing

evidence to the contrary, [28 U.S.C.] § 2254(e)(1), and a decision adjudicated on the merits in a state

court and based on a factual determination will not be overturned on factual grounds unless

objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El

v. Cockrell, 537 U.S. 322, 340 (2003) (citations omitted); see also Fleming v. Metrish, 556 F.3d 520,

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525 (6th Cir. 2009). This presumption applies to “implicit findings of fact” deduced by the state

courts from their review of the credibility of the evidence before them. McQueen v. Scroggy, 99

F.3d 1302, 1310 (6th Cir. 1996). A state court’s resolution of ambiguities in the record is entitled

to “some deference from this court.” United States v. McConer, 530 F.3d 484, 495 (6th Cir. 2008);

see also Raedeke v. Trombley, No. 08-1407, 2009 U.S. App. LEXIS 6350, at *13 (6th Cir. Mar. 23,

2009) (giving deference to the state court’s “characterization of the testimony” because the petitioner

had not rebutted the presumption of correctness afforded to the state court’s findings of fact).

       Cornelison argues that his request for counsel was unambiguous when he stated, according

to the transcript of the confession tape made by his lawyer that was provided to the habeas court,

“Uh, you know what I’m saying I want my lawyers to be here to know what I’m talking about first

of all, you know what I’m saying,” and “I would like to have a lawyer, I would like to have that on

record, I would like to have my lawyer here so.” Thus, he contends, the decision of the Kentucky

Supreme Court constituted an “unreasonable application” of clearly established federal law under

Miranda and Edwards v. Arizona, 451 U.S. 477 (1981). Cornelison requests an evidentiary hearing

and the opportunity to introduce another copy of the confession tape that, he says, demonstrates that

he requested counsel before giving a statement to the police. He contends that the confession tape

rebuts the state courts’ findings of fact by clear and convincing evidence.

       The success of Cornelison’s appeal depends on two questions: (1) whether he is entitled to

an evidentiary hearing in the district court at which he could introduce the confession tape; and, if

not, (2) whether the district court correctly concluded that the Kentucky Supreme Court’s decision,

on the record before it, was consistent with clearly established federal law. We conclude that he is

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not entitled to an evidentiary hearing and that the decision of the state supreme court was not

contrary to, nor did it involve an unreasonable application of, governing federal law. 28 U.S.C. §

2254(d).

                                                 A.

       Cornelison is not entitled to an evidentiary hearing because he has not satisfied the

“diligence” requirement of 28 U.S.C. § 2254(e)(2). AEDPA limits the ability of federal courts to

grant an evidentiary hearing. In pertinent part, the statute provides:

       (2) If the applicant has failed to develop the factual basis of a claim in State court
       proceedings, the court shall not hold an evidentiary hearing on the claim unless the
       applicant shows that—
                (A) the claim relies on—
                        (i) a new rule of constitutional law . . .; or
                        (ii) a factual predicate that could not have been previously discovered
                        through the exercise of due diligence; and
                (B) the facts underlying the claim would be sufficient to establish by clear
                and convincing evidence that but for constitutional error, no reasonable
                factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2). The Supreme Court has interpreted the “failed to develop” clause of §

2254(e)(2) to mean

       not whether the facts could have been discovered but instead whether the prisoner
       was diligent in his efforts. The purpose of the fault component of “failed” is to
       ensure the prisoner undertakes his own diligent search for evidence. Diligence for
       purposes of the opening clause depends upon whether the prisoner made a reasonable
       attempt, in light of the information available at the time, to investigate and pursue
       claims in state court . . . .

Michael Williams v. Taylor, 529 U.S. 420, 435 (2000).

       As we have held, “[i]f the petitioner fails the diligence requirement of § 2254(e)(2), he is

channeled into the strict requirements of subparts (A) and (B),” which permit an evidentiary hearing

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if the claim rests on a new rule of constitutional law or on a factual predicate “‘that could not have

been previously discovered through the exercise of due diligence.’” Hutchison v. Bell, 303 F.3d 720,

729 (6th Cir. 2002) (citation omitted).

       In this case, the Kentucky Supreme Court relied upon the suppression hearing tape because

Cornelison failed to submit a copy of the confession tape into the appellate record. The original

confession tape was presented to the state trial court, and Cornelison cannot show that this tape

“could not have been previously discovered” during his state court appellate proceedings or in the

present habeas proceedings. Indeed, Cornelison’s state court appellate counsel conceded that he

relied upon the suppression hearing tape because he was not able to obtain a copy of the confession

tape from Cornelison’s relatives. Cornelison’s lawyer did not explain why the confession tape was

not obtained from the state trial court or, by motion, from the prosecution. See Michael Williams,

529 U.S. at 434–35 (holding that the “failed to develop” clause does not bar an evidentiary hearing

where, for example, the prosecution concealed evidence). The transcript of the confession tape

provided to the habeas court does not entitle Cornelison to an evidentiary hearing because that tape,

or a transcript thereof, could have been, but was not, provided to the state supreme court and

“[f]ederal courts sitting in habeas are not an alternative forum for trying facts and issues which a

prisoner made insufficient effort to pursue in state proceedings.” Id. at 437. Under the strict

requirements of § 2254(e)(2), Cornelison “failed to develop” the factual basis he now asserts for his

Miranda claim when he was before the Kentucky Supreme Court and, thus, he is not entitled to an

evidentiary hearing in federal court.



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        Cornelison’s attempt to surmount § 2254(e)(2) on the strength of Stewart v. Erwin, 503 F.3d

488, 500 (6th Cir. 2007), is unavailing. In Erwin, the habeas record contained none of the

information relied upon by the state courts in sentencing the petitioner. 503 F.3d at 499–500. We

remanded the matter to the district court and ordered the state to produce the record that was

essential for habeas review. Id. at 501. We did so pursuant to 28 U.S.C. § 2254(f), which provides

that if the petitioner, “because of indigency or other reason is unable to produce such part of the

record, then the State shall produce such part of the record and the Federal court shall direct the State

to do so by order directed to an appropriate State official.” See id. However, this case is

distinguishable from Erwin because Cornelison did not provide the state supreme court with the

confession tape although it had been played at the suppression hearing and, thus, presumably was

available. Cornelison has not demonstrated that the tape was unavailable or that the prosecution

somehow prevented him from presenting it. Moreover, in Erwin, the habeas record lacked the

relevant parts of the state court record through no fault of the petitioner’s. Here, Cornelison’s

counsel apparently possesses either the confession tape, of which a transcript was made for federal

proceedings, or the suppression hearing tape. Thus, Cornelison has not shown that “because of

indigency or other reason,” he has been unable to produce the relevant tapes or their transcripts. 28

U.S.C. § 2254(f). Rather, he has chosen, at each stage of litigation, to submit incomplete and

different evidence of the police interview that has failed to persuade state and federal courts to rule

in his favor.




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                                                  B.

        Because Cornelison is not entitled to an evidentiary hearing to introduce the confession tape,

we must determine whether the decision of Kentucky Supreme Court, on the record before it, was

“contrary to” or involved an “unreasonable application” of clearly established federal law. See 28

U.S.C. § 2254(d).

        The essence of Cornelison’s claim is that the police continued to interrogate him in violation

of federal law after he invoked his right to counsel. Under Edwards v. Arizona, once a custodial

suspect invokes his right to counsel, the police may not further interrogate him until counsel has been

made available unless the suspect initiates further communication. 451 U.S. at 484. Furthermore,

in Davis v. United States, the Supreme Court held that the immediate cessation of interrogation is

triggered by a clear and unambiguous request for counsel. 512 U.S. at 459. If a suspect makes an

ambiguous or equivocal assertion of his right to counsel, questioning may continue. Id.; see also

Berghuis v. Thompkins, 130 S. Ct. 2250, 2261 (2010) (“An ‘implicit waiver’ of the ‘right to remain

silent’ is sufficient to admit a suspect’s statement into evidence.” (quoting N. Carolina v. Butler, 441

U.S. 369, 376 (1979))). Thus, a suspect must assert his right to counsel “with sufficient clarity that

a reasonable officer would perceive it as such under the circumstances.” Franklin v. Bradshaw, 545

F.3d 409, 414 (6th Cir. 2008) (citations omitted); see also United States v. Hurst, 228 F.3d 751,

759–60 (6th Cir. 2000) (applying Davis to the invocation of both the right to counsel and the right

to remain silent). The inquiry is objective. Franklin, 545 F.3d at 414. Significantly, the suspect

must “make some affirmative ‘statement’ or ‘request’ whose ordinary meaning shows his desire to

deal with the police through counsel.” United States v. Suarez, 263 F.3d 468, 483 (6th Cir. 2001)

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(citations omitted); see also Edwards, 451 U.S. at 484 (indicating that the request must show the

suspect’s “desire to deal with the police only through counsel”). For example, we have held that a

statement such as “maybe I should talk to an attorney by the name of William Evans” triggers the

Edwards prohibition on further custodial interrogation. Abela v. Martin, 380 F.3d 915, 925–27 (6th

Cir. 2004). However, “an accused’s postrequest responses to further interrogation may not be used

to cast retrospective doubt on the clarity of the initial request itself.” Smith v. Illinois, 469 U.S. 91,

100 (1984).

        As the state supreme court found, Cornelison was read his Miranda rights and then he asked,

“What if I want my lawyer present first?” The police told Cornelison that the decision was up to

him, but the conversation continued with the detective explaining the waiver-of-rights form.

Crucially, the state court found that Cornelison signed the waiver form while stating that he would

like a request for a lawyer “on the record.” The detective then sought to clarify whether Cornelison

wanted his lawyer present, and Cornelison completed the form and laid down his pen. The detective

asked whether Cornelison wanted to talk to the police, and Cornelison nodded his head affirmatively

and responded, “Yes.”1

        Under these facts, the Kentucky Supreme Court reasonably concluded that, under Davis,

Cornelison’s alleged request for counsel was ambiguous and insufficient to require the police to stop

the interrogation. Cornelison’s reliance upon Abela, 380 F.3d at 925–27, is misplaced. In that case,



        1
         Cornelison asserts that he unambiguously and unequivocally invoked his right to counsel
when he stated, “I want my lawyers to be here to know what I’m talking about first off.” However,
this statement was not in the record on appeal.

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the petitioner was interrogated by the police about a stabbing and he responded by stating, “maybe

I should talk to an attorney by the name of William Evans,” and by giving the police officer a

business card. Id. at 919. The officer left the room, presumably to contact the lawyer. Upon

returning, he made no mention of the attorney and proceeded to read the petitioner his Miranda

rights. Id. The petitioner then signed a waiver and gave a statement confessing to the crime. Id.

We held that a reasonable officer would have understood that the petitioner had clearly and

unequivocally invoked his right to counsel because he had named a specific individual with whom

he wanted to speak and then showed the officer the lawyer’s business card. Id. at 926. In this case,

by contrast, Cornelison merely asked the police about an attorney but then proceeded to fill out and

sign the waiver form before indicating that he wished to speak with the police.

       This sequence of events also undermines Cornelison’s contention that his conversation with

the police, after he requested counsel, should not render his request ambiguous and equivocal. See

Smith, 469 U.S. at 97–98. In Smith, a suspect was asked whether he wanted a lawyer present during

questioning and responded, “Uh, yeah. I’d like to do that.” Id. at 93 (emphasis in original). He was

then asked again whether he wished to speak with the police and he did so after responding, “Yeah

and no, uh, I don’t know what’s what, really.” Id. The Supreme Court held that “[w]here nothing

about the request for counsel or the circumstances leading up to the request would render it

ambiguous, all questioning must cease.” Id. at 98. The Court emphasized that its decision was

“narrow” and that it did not address “the circumstances in which an accused’s request for counsel

may be characterized as ambiguous or equivocal as a result of events preceding the request or of

nuances inherent in the request itself, nor [did the Court] decide the consequences of such ambiguity

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or equivocation.” Id. at 99–100. Both the “events preceding the request” and the “nuances inherent

in the request itself” show that Cornelison’s request was ambiguous and equivocal. Cornelison

asked, “What if I want my lawyer present first?” and then proceeded to sign the waiver form while

stating he wanted a request for a lawyer “on the record.” The police then clarified whether

Cornelison wished to speak with them, and he responded, “Yes.” The police did not attempt to

“wear down [Cornelison] and persuade him to incriminate himself notwithstanding his earlier

request for counsel’s assistance.” Id. at 98 (citing Oregon v. Bradshaw, 462 U.S. 1039, 1044

(1983)). The “circumstances leading up to the request” and the nature of the request rendered the

request for counsel ambiguous and equivocal. Id. at 97.

       Our review of the record presented to the Kentucky Supreme Court reveals that Cornelison

failed to make a statement that a reasonable officer would have understood to be an unambiguous

or unequivocal request for counsel. Thus, we conclude that the decision of the Kentucky Supreme

Court was neither contrary to nor involved an unreasonable application of clearly established federal

law. 28 U.S.C. § 2254(d).

                                                 III.

       For the foregoing reasons, we affirm the district court’s decision.2




       2
        Because we affirm the district court’s decision on the merits of Cornelison’s habeas petition,
we need not reach his argument that the court erred in holding that his claims failed because federal
habeas review does not lie for errors of state law. See Dixon v. Clem, 492 F.3d 665, 673 (6th Cir.
2007) (holding that we “may affirm on any grounds supported by the record even if different from
the reasons of the district court”) (citation and quotation marks omitted).

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