                             RECOMMENDED FOR FULL-TEXT PUBLICATION
                                  Pursuant to Sixth Circuit Rule 206
                                         File Name: 08a0397p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                     X
                             Petitioner-Appellant, -
 RODERICK DAVIE,
                                                      -
                                                      -
                                                      -
                                                          No. 03-4293
          v.
                                                      ,
                                                       >
 BETTY MITCHELL, Warden,                              -
                             Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                  No. 99-02400—James G. Carr, Chief District Judge.
                                        Argued: July 18, 2007
                              Decided and Filed: November 12, 2008
                    Before: MERRITT, COLE, and ROGERS, Circuit Judges.
                                         _________________
                                             COUNSEL
ARGUED: David C. Stebbins, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,
Kathleen A. McGarry, McGARRY LAW OFFICE, Glorieta, New Mexico, for Appellant. Stephen
E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
ON BRIEF: David C. Stebbins, FEDERAL PUBLIC DEFENDER’S OFFICE, Columbus, Ohio,
Kathleen A. McGarry, McGARRY LAW OFFICE, Glorieta, New Mexico, for Appellant. Stephen
E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
       ROGERS, J., delivered the judgment of the court and an opinion. COLE, J. (pp. 17-23),
delivered a separate concurring opinion. MERRITT, J. (pp. 24-34), delivered a separate dissenting
opinion.
                                         _________________
                                             OPINION
                                         _________________
        ROGERS, Circuit Judge. The Ohio courts have upheld the sentence of defendant Roderick
Davie to death for the brutal and gruesome murder of two victims. He was also convicted on an
attempt to kill a third. On a subsequent petition for a federal writ of habeas corpus, the district court
below rejected contentions that defendant’s Miranda rights had been violated, that his penalty-phase
jury instructions had been constitutionally deficient, and that prosecutorial conduct had denied him
due process. These determinations were correct, notwithstanding Davie’s arguments on appeal.



                                                   1
No. 03-4293                Davie v. Mitchell                                                    Page 2


        With respect to the Miranda claim in particular, the substantial deference that the law
requires us to give to the state court’s application of United States constitutional law in habeas cases
compels us to uphold the Ohio courts’ denial of Davie’s Miranda claim. Indeed, even fresh
application of Supreme Court precedent shows that Davie’s Miranda rights were not violated by the
police actions in this case, which included four instances of questioning—each following a Miranda
warning—over a six-hour period.
                                                   I.
        On June 27, 1991, Davie killed John Coleman and Tracey Jefferys, and tried to kill John
Everett. In a taped confession, Davie admitted that he “flipped out” the morning of the crime and
“went down to VCA and shot ’em up.” He described how he entered the building, made his three
victims lie on the floor, and shot them. He described how he beat one victim with a chair when he
ran out of bullets, and attempted to run down one victim with a truck. He also described his
activities after he committed the shootings.
        At trial, Donna Smith, an eye witness, testified that, as she approached the Veterinary
Companies of America (“VCA”) warehouse on the morning of the shootings, she noticed a bleeding
man stumble across the parking lot and collapse on a sidewalk. JA 901-05. Smith then noticed
another man come out of the building and run around to the driver’s side of a truck in the dock area.
Thereafter, Smith testified that the truck came “flying out” of the parking lot across both lanes of
the street in an attempt to hit the injured man. The injured man was able to shield himself from the
truck by falling underneath a bridge, and the truck rammed into the bridge. Smith testified that the
man in the truck left the truck and jumped over the side of the bridge.
         John Everett, one of Davie’s victims and the man that Smith witnessed stumble across the
parking lot, testified to the following events. JA 906-47. On the morning of the shootings, Everett
was in the VCA lunch room. Davie, accompanied by a crying Tracey Jefferys (another VCA
employee), came up from behind Everett holding a gun. Davie ordered Everett out of the lunch
room and, once in the warehouse area, ordered Everett and Jefferys to “lay face down.” Davie then
ordered John Colman, who was loading his truck at the loading dock, to join Everett and Jefferys.
After Everett, Jefferys, and Coleman had complied with Davie’s commands, Davie began shooting.
Everett testified that after numerous shots were fired, Jefferys got up and ran away. Davie brought
Jefferys back, and Everett heard Davie remark to Coleman “You ain’t dead yet, huh, brother?” and
fire another shot. Everett testified that Davie then took Everett’s wallet and told Jefferys that she
was lucky that he was out of bullets. At that point, Jefferys again attempted to flee, and Davie
followed. Everett heard Jefferys scream for three or four minutes and, eventually, the screaming
stopped.
        Everett escaped the warehouse and made his way out of the building and to the street.
Thereafter, Everett noticed Davie revving the engine of a truck in the parking lot. Davie attempted
to use the truck to run Everett down, but Everett escaped by jumping under a bridge. Everett heard
the truck crash into the bridge and, shortly thereafter, Davie arrived under the bridge. At that time,
Davie began beating Everett with a stick on the left side of Everett’s head, and attempted to gouge
Everett’s eyes out with the stick. Everett testified that Davie had the look of “a man on a mission
and he was definitely going to kill me.” At some point, Davie stopped beating Everett, looked up
over the bridge, and left the area. Everett was treated at the hospital for, among other things, three
gunshot wounds—one to the head, one to the shoulder, and one to the arm.
        There is no need to summarize the remainder of the trial testimony. It is sufficient to say that
the testimony established overwhelmingly that Davie committed a bloody and gruesome series of
crimes on the morning of June 27, 1991. Testimony established that Tracey Jefferys died in VCA’s
lunch room due to blunt force trauma. A metal folding chair was found next to her body. Coleman
No. 03-4293                      Davie v. Mitchell                                                                Page 3


died in the warehouse as a result of five bullet wounds—two of which were located in the back of
his head.
        The circumstances of Davie’s confession, detailed more fully in the concurrence, are as
follows. At approximately 8:30 a.m., Davie was arrested, read his Miranda rights, and transported
to the police station. At approximately 9:05 a.m. at the police station, Detective Hill read Davie his
Miranda rights with Lieutenant Carl Blevins present. Davie initialed the rights form but refused to
sign the waiver. At that point, the officers made no attempt to interrogate Davie. At approximately
9:59 a.m., Captain Downs and Blevins entered the interrogation room and again advised Davie of
his Miranda rights. Davie initially made some comments, he ultimately declined to speak further
with the officers, and the interview ceased. At approximately 12:15 p.m., authorities again
questioned Davie. Davie provided some information to police, including the fact that he had his gun
with him that morning, but he did not confess to the crime. At 12:35 p.m., Davie indicated that he
had nothing more to say and the interview ceased. At approximately 2:00 p.m., Davie indicated that
he wanted to speak with Detective Vingle. After Vingle advised him of his Miranda rights, Davie
confessed. See 686 N.E.2d 245, 256 (Ohio 1997). At no time during the relevant events did Davie
ask for a lawyer.1
                                                           II.
                                                           A.
        Davie claims that the state trial court unconstitutionally admitted his confession into
evidence. The deference that we owe to state court determinations regarding constitutional law on
federal habeas requires that we uphold the Ohio Supreme Court’s rejection of Davie’s Miranda
claim. The law by now is clear that under AEDPA, “an unreasonable application of federal law is
different from an incorrect application of federal law.” See Williams v. Taylor, 529 U.S. 362, 410
(2000) (emphasis in original). Instead of asking whether the state court’s application was erroneous,
“a federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state
court’s application of clearly established federal law was objectively unreasonable.” Id. at 409. Our
task in this case is to evaluate the Ohio Supreme Court’s application of U.S. Supreme Court
precedents for reasonableness, not to undertake an independent evaluation.
         After detailing the events leading to Davie’s statements, the Ohio Supreme Court reasoned:
         Contrary to Davie’s arguments, he did not unequivocally assert his constitutional
         rights. Instead, he waived his right to remain silent during both interviews with
         Vingle and Sines, despite his failure to initial the waiver-of-rights portion of the
         form. This situation is similar to that in State v. Scott (1980), 61 Ohio St. 2d 155, 15
         O.O.3d 182, 400 N.E.2d 375, which followed the decision in North Carolina v.
         Butler (1979), 441 U.S. 369. In Butler, the Supreme Court noted that “in at least
         some cases waiver can be clearly inferred from the actions and words of the person
         interrogated.” Id. at 373. In Scott, the accused acknowledged that he understood his
         Miranda rights, but refused to sign a waiver form. Nevertheless, he agreed to answer
         questions and never requested counsel. The Scott court upheld the admissibility of


         1
           It overstates things to say that Davie was “confronted” “six times within a 5-1/2 hour period between his arrest
at 8:30 A.M. that morning and his confession around 2:00 P.M. that afternoon.” Dissent at 24. Such a count includes
the interaction between Davie and Sergeant Massucci when Massucci went to Davie’s cell only to take photographs, and
also the interaction (hardly a confrontation) between Davie and Detective Vingle after Davie himself requested Vingle’s
presence. All told, Davie was read his Miranda rights four times in the almost six hour period between his arrest and
his request to speak with Vingle, and officers interacted with Davie at the police station three times in almost five hours
before Davie initiated contact with Vingle and confessed.
No. 03-4293                Davie v. Mitchell                                                       Page 4


       the accused’s statements and held, “[T]he question is not one of form, but rather
       whether the defendant in fact knowingly and voluntarily waived the rights delineated
       in Miranda * * *.” Scott at paragraph one of the syllabus. The similar facts of this
       case demonstrate that Davie waived his Miranda rights even though he failed to
       initial the waiver part of the form.
       When Davie indicated in his interview with Blevins and Hill that he no longer
       wished to talk, his requests were scrupulously honored by the officers. However, in
       cutting off the earlier interviews, Davie did not preclude a later interrogation by other
       officers. See Michigan v. Mosley (1975), 423 U.S. 96, 104. Moreover, Davie never
       asserted his right to have counsel present.
       Finally, it is clear that Davie’s 2:00 p.m. conversation with police, in which he
       implicated himself in the murders, was properly admitted, since he initiated that
       conversation himself. See Edwards v. Arizona (1981), 451 U.S. 477, 485.
686 N.E.2d at 256-57(citations omitted).
       Even if we might find a way to disagree with the unanimous opinion of the Ohio Supreme
Court in this regard, that court’s analysis amounts to a thoughtful and certainly reasonable
application of United States Supreme Court law, as explained in detail by Judge Carr in the district
court below. See 291 F. Supp. 2d 573, 595-600 (N.D. Ohio 2003). The district court accordingly
properly denied habeas relief on this ground.
                                                  B.
        Indeed, the reasonableness of the state court’s analysis is supported by a fresh application
of Supreme Court precedents to the record in this case. Even under a nondeferential analysis, the
police did not violate Davie’s constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966).
                                                  1.
        The Ohio Supreme Court’s determination that Davie initiated the 2 p.m. conversation is
directly supported by the Supreme Court’s decision in Oregon v. Bradshaw, 462 U.S. 1039 (1983).
In Bradshaw, a plurality of the Supreme Court concluded that authorities could speak to a defendant,
without depriving him of his rights, when the defendant asked “Well, what is going to happen to me
now?” even though the defendant had previously invoked his right to counsel. See id. at 1041-42.
Because, in asking this question, the defendant had “evinced a willingness and a desire for a
generalized discussion about the investigation,” id. at 1045-46, the plurality concluded that the
admission of evidence was proper so long as the defendant had knowingly and intelligently waived
his rights to counsel and silence. Id. at 1046.
         Here, like the defendant in Bradshaw, Davie evinced a willingness to discuss the
investigation without influence by authorities. Indeed, the question that Davie asked of Vingle was
related to the very subject matter of the criminal investigation for which Davie had been detained.
See id. at 1053-54 (Marshall, J., dissenting). This court, in United States v. Whaley, 13 F.3d 963
(6th Cir. 1994), has reconciled the plurality and dissent in Bradshaw as stating a general rule that
“an Edwards initiation occurs when, without influence by the authorities, the suspect shows a
willingness and a desire to talk generally about his case.” Id. at 967. In this case, Davie was placed
in a jail cell at approximately 12:35 p.m. About an hour and a half later, Sergeant Massucci went
to Davie’s cell for the purpose of obtaining Davie’s photograph. When Massucci arrived, Davie
asked him for permission to make a phone call. After returning from the phone call, Davie told
Massucci that he wished to speak to Detective Vingle. When Vingle arrived, Davie asked Vingle
how the news media had obtained information about Davie and his girlfriend, and inquired of
No. 03-4293                Davie v. Mitchell                                                     Page 5


Vingle, “What did Styx tell you?” Styx, of course, was Dwayne Thomas, the informant who
originally contacted the police and who was with Davie before Davie was arrested. It was after this
interaction between Vingle and Davie—initiated by Davie—that Davie confessed to the shooting.
Vingle brought Davie to an interview room, re-advised Davie of his Miranda rights, and Davie
confessed on tape.
        Under the analytical framework of the Bradshaw plurality, Davie’s confession was properly
admitted at trial. First, Davie initiated contact with the police after he invoked his right to silence.
The record indicates that one and a half hours after Davie was placed in a jail cell, Davie requested
to see Vingle and questioned Vingle in a manner directly pertaining to the investigation. There is
no evidence in the record that either Davie’s request to see Vingle or Davie’s questioning of Vingle
was the product of improper influence on the part of the police. Davie was in his cell for an hour
and a half before requesting Vingle’s presence, and the record establishes that Massucci merely took
photographs of Davie and granted Davie’s request to make a phone call.
        Rhode Island v. Innis, 446 U.S. 291 (1980), in no way supports a contrary conclusion that
the 2:00 p.m. encounter was not a sufficient initiation of contact under Bradshaw. See Dissent at
33. The issue in Innis was what police statements amount to interrogation so as to violate Miranda
once a suspect has invoked his Miranda rights. The Court concluded that “the Miranda safeguards
come into play whenever a person in custody is subjected to either express questioning or its
functional equivalent.” 446 U.S. at 300-01. In that case, the defendant invoked his right to counsel
but later revealed the location of a gun used in a robbery after one of the officers, in the defendant’s
presence, remarked to another officer that there were “a lot of handicapped children running around
in this area” and “God forbid one of them might find a weapon with shells.” Id. at 294-95. The
Court held that this was not the functional equivalent of express questioning, id. at 302, and, in any
event, the police made no such comments to Davie in this case. After making a phone call, Davie
initiated the contact with Vingle on his own, and in the absence of any police influence. Davie’s
questioning of Vingle clearly evinced a willingness to talk about the subject matter of the
investigation, thereby satisfying the first requirement of Bradshaw.
       Second, the totality of the circumstances indicates that Davie knowingly and intelligently
waived his rights to counsel and silence. This determination depends upon “the particular facts and
circumstances surrounding [the] case, including the background, experience, and conduct of the
accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). In examining whether Davie’s waiver was
knowing and intelligent, the state appellate court concluded that
       [t]here is no evidence in the record that the police resorted to any physical pressure,
       coercion or deception to elicit [Davie’s] statements. In fact, [Davie] initiated the
       third interview which led to his confession. There is also no doubt that [Davie] was
       effectively and adequately apprised of his Miranda rights. Moreover, his initials and
       signature on the forms, his tape recorded statements, and his cooperation during the
       interviews are evidence that he understood his rights and the consequences of
       relinquishing them.
State v. Davie, No. 92-T-4693, 1995 WL 870019, at *22 (Ohio Ct. App. Dec. 27, 1995). There is
no reason to dispute the Ohio appellate court’s conclusions here. After Davie initiated contact with
Vingle, Vingle brought Davie to an interview room, Vingle re-advised Davie of his Miranda rights,
and Davie confessed to the crime. Prior to confessing, Davie initialed a constitutional rights form
indicating that he understood his rights, and signed the form. During the interview, officers orally
read Davie his rights, and Davie remarked that he understood those rights, including the waiver
No. 03-4293                     Davie v. Mitchell                                                             Page 6


provision. Although Davie did not initial the waiver section on the form, Davie explicitly stated that
he agreed to speak with the officers, and therefore effectively waived his Miranda rights.2
        In United States v. Kaufman, 92 F. App’x 253 (6th Cir. 2004), we held, albeit in an
unpublished decision, that there was no Miranda violation in a case, like this one, where the
defendant had refused to sign a waiver form but freely spoke to police after being advised of his
Miranda rights. Id. at 256. We relied in Kaufman on the Supreme Court’s holding in North
Carolina v. Butler, 441 U.S. 369, 374-76 (1979), that the Constitution did not require an explicit
waiver of Miranda rights. Indeed, the defendant in Butler had said to the police, in words that
closely prefigure the instant case, “I will talk to you but I am not signing any form.” Id. at 371; see
also United States v. Miggins, 302 F.3d 384, 397 (6th Cir. 2002) (written waiver not necessary to
establish knowing, intelligent, and voluntary waiver of Miranda rights).
        It is no answer to the above analysis to assert that, because Davie repeatedly refused to initial
the waiver, he did not think that his statements could be used against him. Not only did the Miranda
rights form that officers read to Davie include the obligatory provision that “[a]nything you say can
be used against you in court,” but Davie repeatedly acknowledged that he understood this provision
throughout the morning and afternoon in question, and Davie manifested no objective signs that
indicated a misunderstanding.
          Further, the law does not require that, where a defendant refuses to sign a waiver but
nonetheless agrees to speak with officers, “[i]nvestigating officers should clearly inform the accused
that his failure to sign the waiver does not prevent statements he makes from being used against
him.” Dissent at 33. No Supreme Court decision so requires, and lower court cases like United
States v. Van Dusen, 431 F.2d 1278 (1st Cir. 1970), do not support such a rule. In that case, the First
Circuit, after explaining that a refusal to sign a written waiver followed by a willingness to talk is
a “signal of some quirk of reasoning,” suggested that a further explanation on the part of the police
would have been “prudent.” Id. at 1280. The First Circuit declined, however, to formulate a
specific rule to govern police practices, explaining:
         It would, we think, be folly to try to cast this principle in the form of a specific
         required practice. Indeed, were we so to rule, a suspect could, by refusing to sign
         and subsequently talking freely, enjoy the luxury of an immunity bath at no price at
         all.




         2
          After officers re-advised Davie of his Miranda rights and Davie acknowledged that he understood those rights,
the relevant exchange progressed as follows:
         Det. Vingle: Okay, about 5 minutes to 2 [o’clock], Sgt. Massucci came up from the jail and advised
         me that you wanted to see me.
         Davie: Right
         Det. Vingle: And I came down and you said you wanted to talk to us while we brought you back
         upstairs, right?
         Davie: Yea.
         Det. Vingle: Do you want to acknowledge this that you have been given your rights again? Do you
         understand this one too [the waiver provision], do you want to initial that one?
         Davie: It don’t matter, do it.
         Det. Sines: Any particular reason why, you just don’t want to initial that part?
         Davie: Right.
         Det. Sines: Are you still willing to talk to us?
         Davie: Right.
JA 2053.
No. 03-4293                      Davie v. Mitchell                                                                Page 7


Id. Thus, rather than adopting a “specific required practice,” the Van Dusen court chose instead to
hold the government to a “measurably increas[ed]” burden of persuasion regarding whether the
waiver was knowing and intelligent. Id. Indeed, the First Circuit upheld the Miranda waiver in that
case, even though the police had not even read the Miranda warnings, but rather had let the suspect
read them to himself. Id. Thus, despite the officers’ failure to seek clarification from the defendant
regarding the refusal to sign the written waiver, the Van Dusen court held that the waiver was
effective.3
        In any event, the police officers here cannot be faulted for failing to comply with such a
legally unsupportable rule. The officers did twice attempt to seek clarification from Davie regarding
his refusal to initial the waiver. During the 12:15 p.m interview, the officers questioned Davie as
follows:
         Det. Sines: Roderick on this rights sheet that you signed, you acknowledged that you
         understand your rights there, but you didn’t want to uh initial the waiver of rights,
         okay, is that correct?
         Davie: Right.
         Det. Sines: Okay being as though you did that do you have any objections to talking
         to us anyhow?
         Davie: No I don’t.
JA 2025. Later, at the 2:00 p.m. interview, officers again attempted to seek clarification from Davie:
         Det. Vingle: Do you want to acknowledge this that you have been given your rights
         again? Do you understand this one too [the waiver provision], do you want to initial
         that one?
         Davie: It don’t matter, do it.
         Det. Sines: Any particular reason why, you just don’t want to initial that part?
         Davie: Right.
         Det. Sines: Are you still willing to talk to us?
         Davie: Right.
JA 2053. Hence, the record establishes that the officers did seek clarification from Davie regarding
the apparent incongruity between his refusal to sign the waiver and his willingness to speak. And
each time the officers sought clarification, Davie responded unequivocally that he was willing to
speak. Accordingly, because Davie reinitiated contact with authorities, 4and because Davie
knowingly and intelligently waived his rights, the confession was admissible.

         3
          The Ninth Circuit’s holding in United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984), is also readily
distinguishable from Davie’s case. The police in Heldt “exhorted” the defendant to “answer questions anyway” despite
the defendant’s desire to remain silent. Id. at 1278.
         4
           While federal lower court cases like McGraw v. Holland, 257 F.3d 513, 518-19 (6th Cir. 2001), indicate that
“post-request responses after invocation of [the] right to silence may not be used by the State as a waiver of rights,”
Dissent at 31, that is not what happened here. In this case, there is no need to infer a waiver from post-request responses
because Davie clearly waived his Miranda rights before confessing. See supra note 2 and accompanying text.
No. 03-4293                    Davie v. Mitchell                                                             Page 8


         Application of the analysis of the plurality in Bradshaw to the facts of this case thus compels
the conclusion that Davie’s Miranda rights were not violated. Justice Powell’s concurrence in
Bradshaw, moreover, which focused on deference to the trial court and on an evaluation of the
totality of the circumstances, would a fortiori support the same conclusion. It is true that Bradshaw
dealt with initiation of questioning after invocation of the right to counsel, and that there was no
invocation of the right to counsel in Davie’s case. But this distinction if anything cuts against Davie,
as asking for counsel requires “additional safeguards” to those where a suspect has, for instance,
simply refused to sign a waiver. See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)
(distinguishing North Carolina v. Butler, 441 U.S. at 371-76).
                                                         2.
        Moreover, Michigan v. Mosley, 423 U.S. 96 (1975), does not undermine the conclusion that
Davie effectively waived his Miranda rights. The Mosley Court upheld a confession that followed
a cutoff of questioning, and thus it is only by negative inference (i.e., dictum) that Mosley can be
read to support defendant at all. Although police must respect a suspect’s exercise of his right to
remain silent, police are not indefinitely prohibited from further interrogation so long as the
suspect’s right to cut off questioning was “scrupulously honored.” Id. at 104. The purpose of
Mosley’s “scrupulously honored” requirement is to safeguard against “repeated rounds of
questioning” that can serve to “undermine the will of the person being questioned.” Id. at 102. As
the Mosley Court noted, “[t]he requirement that law enforcement authorities must respect a person’s
exercise of [the option to terminate questioning] counteracts the coercive pressures of the custodial
setting.” Id. at 104. By exercising that option, a person is able to “control the time at which
questioning occurs, the subjects discussed, and the duration of the interrogation.” Id. at 103-04. A
review of the record indicates that Davie’s right to cut off questioning was fully respected in this
case.
        In both Mosley and this case, the defendant cut off questioning after authorities informed the
defendant of his Miranda rights and, in both cases, authorities contacted the defendant after an
interval of time. Id. at 104. In balancing the rights of the defendant and the needs of the authorities,
the Mosley Court concluded that the authorities did not engage in repeated efforts to wear down the
defendant’s resistance. Id. at 105-06. The same conclusion is mandated here. The record indicates
that, while at the police station, authorities attempted to procure a Miranda waiver from Davie three
times before Davie initiated contact with Vingle and confessed—at 9:05 a.m., 9:59 a.m., and 12:15
p.m. Each time, Davie was properly advised of his Miranda rights at the outset of the interview, and
each time Davie indicated that he understood those rights. At the 9:05 a.m. interview, Davie
indicated that he did not want to make a statement, and the officers made no attempt to question
Davie. At the 9:59 a.m. interview, officers entered the room, asked Davie if he knew why he had
been arrested, and explained to him that they were investigating a shooting. Davie initially made
some comments, but ultimately declined to speak further with the officers. The officers then
immediately ceased the interview. At the 12:15 p.m. interview, Davie initially agreed to speak with
officers, but refused to sign the waiver of rights. Davie made some statements indicating that he did
not remember what happened that morning, and the interview concluded at 12:35 p.m. after Davie
stated that he had nothing more to say. One and a half hours later, Davie initiated contact with
Vingle and, after again being advised of his rights, confessed to the crime.


Moreover, this case is easily distinguishable from McGraw and similar lower court cases. For example, in McGraw,
although the defendant repeatedly indicated a desire to postpone questioning, the police insisted that the defendant
discuss the crime, urging that the defendant “need[ed] to tell [the detective] what was happening at the house,” and
further pressing that “we need to talk about it now,” and “[w]e have to talk about it.” McGraw, 257 F.3d at 515. After
police “[r]efus[ed] to take no for an answer,” the defendant succumbed and gave a detailed confession. Id. at 515-16.
The record shows no such pressure here. See also United States v. Tyler, 164 F.3d 150, 154-55 (3d Cir. 1998) (police
“command[ed]” defendant to “tell the truth” after invocation of right to silence).
No. 03-4293                     Davie v. Mitchell                                                                Page 9


        In Mosley, the defendant confessed during the second interaction with police while at the
police station. Here, authorities interacted with Davie three times at the police station before Davie
initiated contact with Vingle and confessed. The inquiry under Mosley, however, is not restricted
to the number of times that the authorities interacted with the defendant. Rather, Mosley requires
an examination of whether the officers’ conduct demonstrates a failure to respect fully the
defendant’s right to cut off questioning, thereby indicating an “effort[] to wear down [the
defendant’s] resistance and make him change his mind.” Id. at 105-06. Although repeated contacts
are suggestive of an attempt to undermine a defendant’s will, the record does not support a
conclusion that the authorities in this case engaged in such an attempt.
        First, the interval of time between the interviews was not insubstantial or a short “time out.”
Officers waited almost one hour between the first and second interaction at the police station, over
two hours between the second and third, and one and a half hours had elapsed before Davie
requested to speak with Vingle. In total, approximately five and a half hours elapsed between the
time that Davie was arrested and the time that Davie contacted Vingle to confess, and authorities
read Davie his Miranda rights four times during that period. Cf. Jackson v. Dugger, 837 F.2d 1469,
1471-72 (11th Cir. 1988) (no constitutional violation where authorities advised defendant of
Miranda rights six times in a six-hour period between arrest and confession because officers
immediately ceased questioning when defendant invoked his right to silence). Further, during each
interaction, officers fully informed Davie of his Miranda rights at the outset, immediately ceased
questioning after Davie expressed his desire to remain silent, cf. id., and there is no evidence in the
record that the officers engaged in any other conduct to persuade Davie to change his mind.5 Cf.
United States v. Olof, 527 F.2d 752, 753 (9th Cir. 1975) (holding that the object of a successive
interrogation was to wear down defendant’s resistance when officers reinitiated contact with
defendant after three hours by confronting him with the description of the unpleasantness of prison
for the obvious purpose of getting him to abandon his self-imposed silence); United States v.
Hernandez, 574 F.2d 1362, 1368 (5th Cir. 1978) (finding constitutional violation where defendant
was held incommunicado for five hours in the “close quarters of a police wagon” before being
subjected to repeated and immediate interrogations in a span of 45 minutes). And, making this an
even more compelling case than Mosley, it was Davie—and not the authorities—who initiated the
final contact that led to the confession. In so doing, Davie was unquestionably able to “control the
time at which questioning occurs, the subjects discussed, and the duration of the interrogation,”
Mosley, 423 U.S. at 103-04, regardless of whether Vingle questioned Davie after Davie initiated the
contact. For these reasons, it cannot be said that the authorities in this case “undercut” Davie’s
previous decisions not to answer the officers’ inquiries. See id. at 105.
        Second, Mosley does not require that the repeated questioning involve a wholly different
crime. As the Eighth Circuit held in United States v. House, 939 F.2d 659 (8th Cir. 1991), “a second
interrogation is not rendered unconstitutional simply because it involves the same subject matter
discussed during the first interview.” Id. at 662. That was one of several factors that the Court
considered in its analysis, and there is no indication in Mosley that this factor was more central to
the Court’s analysis than other factors. A leading treatise has indeed noted that, “[i]n Mosley the
Court observed that the defendant was later questioned about a different crime, but it is unclear how
significant this factor was intended to be.” See 1 Charles Alan Wright & Andrew D. Leipold,
Federal Practice & Procedure: Criminal § 76, at 226-27 (4th ed. 2008). The other factors the Court
considered—which, for the reasons discussed above, indicate that no constitutional violation
occurred in this case—include (1) whether police advised the defendant of his Miranda rights at the

         5
          The officer’s statement that “If you have nothing to tell us, we’ll go from there okay,” does not necessarily
convey the idea that if Davie did not waive his rights, he would be questioned anyway. See Dissent at 32. The statement
“we’ll go from there” is susceptible of numerous interpretations, and the actual conduct of the officers in this case does
not support such a connotation. At each instance that Davie refused to speak further, officers immediately ceased
questioning.
No. 03-4293                Davie v. Mitchell                                                  Page 10


first interrogation, (2) whether police immediately ceased the interrogation upon defendant’s
request, (3) whether police resumed questioning after a significant period of time, and (4) whether
police provided new Miranda warnings at the successive interviews. As the Fourth Circuit reasoned
in Weeks v. Angelone, 176 F.3d 249 (4th Cir. 1999), “[w]here other factors indicate that a
defendant’s right to cut off questioning was ‘scrupulously honored,’ however, the mere fact that a
second interrogation involves the same crime as the first interrogation does not necessarily render
a confession derived from the second interrogation unconstitutionally invalid under Mosley.” Id.
at 269. Indeed, the “wholly different crime” factor has very limited applicability in cases where, as
here, the defendant confessed after reinitiating contact with the officers. To satisfy the first prong
of the Bradshaw inquiry, the suspect’s initiation of contact must pertain to the instant investigation.
It naturally follows from this that any subsequent interrogation by police will pertain to the same
crime. Mosley thus cannot be categorically distinguished on the ground that the questioning in
Mosley involved a different crime.
          For the foregoing reasons, the admission of Davie’s confession does not warrant habeas
relief.
                                                 III.
                                                  A.
        Nor do the penalty-phase jury instructions in this case warrant habeas relief. Defendant
argues that the “jury was instructed that it must unanimously ‘acquit’ Roderick Davie of the death
penalty before it could consider any of the potential life sentences,” and that such an instruction
violated Davie’s constitutional rights. The Ohio courts largely did not consider this claim, because
Davie did not timely raise the claim in state court. The district court likewise held that because
Davie first raised the claim in post-conviction proceedings, it was procedurally barred. 291 F. Supp.
2d at 620.
        As an initial matter, we agree with the district court that we cannot reach the merits of
Davie’s substantive “acquittal-first” claim because that claim has been procedurally defaulted.
Davie first raised the substantive “acquittal-first” claim in his second petition for post-conviction
relief on March 1, 2000. But Davie defaulted on all claims raised in that petition because he did not
comply with an adequate and independent state procedural rule. Under Ohio Rev. Code § 2953.23,
a second, successive, or untimely petition is permitted under limited circumstances. In Davie’s case,
the Ohio courts determined that Davie’s second petition failed to meet the criteria set out in the
statute. See State v. Davie, 2001 WL 1647193, at *1-*6 (Ohio Ct. App. Dec. 21, 2001). This court
has previously held that where an Ohio defendant is unable to satisfy the statutory requirements to
bring a second post-conviction petition, procedural default analysis applies. See Broom v. Mitchell,
441 F.3d 392, 399-401 (6th Cir. 2006). Because the claims raised in Davie’s second post-conviction
petition could have been raised in his first post-conviction petition, those claims are procedurally
defaulted absent a showing of cause and prejudice, or a miscarriage of justice. See id. at 401.
        In his brief to this court, Davie does not attempt to show cause and prejudice for the
procedural default with respect to his second petition for post-conviction relief, or otherwise argue
that a miscarriage of justice will result from enforcing the procedural bar. Indeed, the record is
devoid of any evidence that Davie had cause for failing to raise the claim in his first post-conviction
petition. Instead, Davie argues that the “acquittal-first” claim was properly raised in his Ohio
Appellate Rule 26(B) application. It is true that the substantive “acquittal-first” claim was included
as part of Davie’s Rule 26(B) application filed on March 31, 2000. But that application cannot be
construed as raising the substantive “acquittal-first” claim.
No. 03-4293                Davie v. Mitchell                                                  Page 11


        Rule 26(B) provides that “a defendant in a criminal case may apply for reopening of the
appeal from the judgment of conviction and sentence, based on a claim of ineffective assistance of
appellate counsel.” The court must grant an application for reopening if the applicant demonstrates
that “there is a genuine issue as to whether the applicant was deprived of the effective assistance of
counsel on appeal.” Ohio App. R. 26(B)(5). To determine whether the applicant has raised a
genuine issue of ineffective assistance, Ohio courts employ the two-pronged analysis of Strickland
v. Washington, 466 U.S. 668 (1984). See State v. Reed, 660 N.E.2d 456, 458 (Ohio 1996). If the
application to reopen is granted, the case proceeds as on initial appeal. Ohio App. R. 26(B)(7).
        By its very nature then, a Rule 26(B) application is a claim of ineffective assistance of
appellate counsel. Consistent with this view of the Rule, Davie claimed in his Rule 26(B)
application that his direct appeal should be reopened because his appellate counsel was ineffective
for, among other things, failing to raise the “acquittal-first” jury instruction argument. JA 2768. As
this court has previously noted, however, bringing an ineffective assistance claim in state court
based on counsel’s failure to raise an underlying claim does not preserve the underlying claim for
federal habeas review because “the two claims are analytically distinct.” White v. Mitchell, 431 F.3d
517, 526 (6th Cir. 2005). Thus, a Rule 26(B) application “based on ineffective assistance cannot
function to preserve” the underlying substantive claim. Id.; see also Roberts v. Carter, 337 F.3d
609, 615 (6th Cir. 2003) (noting that, “[i]n light of the requirements of Rule 26(B), the court’s
holding must be read as pertaining to the merits of” the ineffective assistance claim, not the
underlying state procedural rule claim).
        From this, it follows that Davie’s Rule 26(B) application cannot be construed as raising the
substantive “acquittal-first” claim. And because the Ohio courts determined that Davie failed to
demonstrate a “genuine issue” that his appellate counsel was ineffective for failing to raise that
claim, the courts refused to open Davie’s direct appeal, thereby imposing a procedural bar to
consideration of the claim. As a consequence, Davie’s substantive “acquittal-first” claim is
procedurally defaulted—Davie failed to bring the claim on direct and collateral review in state court,
and the state courts determined that Davie did not make the requisite showing in his Rule 26(B)
application to justify reopening his direct appeal. Accordingly, our review in this case is limited to
Davie’s claim that his counsel was ineffective for failing to raise the “acquittal-first” argument, a
claim that was adjudicated in the state courts. It is true that if this court were to find that Davie’s
ineffective assistance claim has merit, that could serve as cause to excuse the procedural default of
the substantive “acquittal-first” claim. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). But
it is necessary to make that determination prior to excusing the procedural default, and, for the
reasons stated in Part III.B. below, Davie cannot establish cause based on the performance of his
appellate counsel.
        It is true that the analysis above is somewhat complicated by the fact that any review of an
ineffective assistance claim will likely include some sort of determination that the substantive claims
underlying the ineffective assistance claim lack merit. Indeed, if the underlying substantive claims
have no merit, the applicant cannot demonstrate that counsel was ineffective for failing to raise those
claims on appeal. Here, the Ohio Court of Appeals dealt with Davie’s ineffective assistance claim
in just that manner. After remarking that Davie’s substantive “acquittal-first” claim would
ordinarily be barred by res judicata because Davie challenged the jury instruction on multiple
grounds on direct appeal, the Ohio Court of Appeals made clear that Davie’s Rule 26(B) application
did not assert the underlying substantive claims, but rather asserted a claim that appellate counsel
was ineffective for failing to raise those substantive claims. JA 2343. In analyzing whether Davie
had raised a “genuine issue” of ineffective assistance, however, the court held that Davie failed to
meet his burden because the underlying substantive claims, including the “acquittal-first” claim, had
no merit. JA 2348. The Ohio Supreme Court affirmed the judgment of the appellate court on the
basis that Davie had failed to raise a “genuine issue” that he was deprived of effective assistance on
No. 03-4293                Davie v. Mitchell                                                   Page 12


direct appeal, and did not address the merits of the “acquittal-first” claim. See State v. Davie, 772
N.E.2d 119, 121 (Ohio 2002).
         These state court decisions justify review only of Davie’s claim that his counsel was
ineffective for failing to raise the “acquittal-first” argument on direct appeal. The mere fact that
Davie’s substantive “acquittal-first” claim was included as an underlying assignment of error in the
Rule 26(B) application does not, given the comity and federalism concerns implicated in habeas
cases, justify reaching the merits of that claim. Although the determination of whether appellate
counsel was ineffective for failing to raise a substantive claim may, in some cases, involve an
inquiry into the merits of the underlying substantive claim, the fact remains that the two claims are
“analytically distinct” for purposes of the exhaustion and procedural default analysis in habeas
review. Reaching the merits of the substantive “acquittal-first” claim in this case disregards the
operation of two independent and adequate state procedural rules that barred consideration of that
claim in state court. Davie procedurally defaulted the claim in the second post-conviction petition
because the requirements of Ohio Rev. Code § 2953.23 were not met. Moreover, he failed to raise
the claim properly on direct review, and the Ohio courts refused to excuse this failure when they
determined that Davie had not established a “genuine issue” of ineffective assistance of appellate
counsel. Because, for the reasons stated below, that ineffective assistance determination was correct,
it is not proper for this court to reach the merits of Davie’s substantive “acquittal-first” claim.
                                                  B.
       A brief examination of the state of law at the time of Davie’s direct appeal indicates that
Davie’s appellate counsel was not ineffective for failing to raise the “acquittal-first” argument.
Because Davie’s ineffective assistance claim was adjudicated on the merits in state court, AEDPA’s
deferential standard of review applies to that claim. As with Davie’s Miranda claim, the proper
inquiry here is whether the state court’s disposition of the ineffective assistance claim was an
unreasonable application of clearly established federal law, as determined by the Supreme Court.
See 28 U.S.C. § 2254(d)(1). The record indicates that it was not.
       By way of background, the trial judge in this case instructed the jury as follows:
       If . . . you’re firmly convinced that the aggravating circumstances . . . are sufficient
       to outweigh the factors in mitigation, then the State has met its burden of proof and
       the Jury shall recommend to the Court that the sentence of death shall be imposed on
       the Defendant. . . . If, on the other hand, you’re not firmly convinced that the
       aggravating circumstances . . . are sufficient to outweigh the factors in mitigation,
       then the State has not met its burden.
JA 1445-46. The trial judge later instructed the jury:
       All 12 jurors must agree on the verdict. If all 12 jurors find by proof beyond a
       reasonable doubt that the aggravating circumstances . . . outweigh the mitigating
       factors, then . . . you have no choice but to make a recommendation that the sentence
       of death be ordered. On the other hand, if . . . you find that the State has failed to
       prove by proof beyond a reasonable doubt, that the aggravating circumstances . . .
       outweigh the mitigating factors, then you will return a verdict reflecting that
       decision.
JA 1456-57 (emphasis added).
        To understand why Davie’s appellate counsel was not ineffective for failing to raise the
“acquittal-first” claim, one need only look to the state of the law as it existed at the time of Davie’s
direct appeal. In Mills v. Maryland, 486 U.S. 367, 373-74 (1988), the Supreme Court had held
No. 03-4293                     Davie v. Mitchell                                                              Page 13


unconstitutional procedures that required a jury to agree unanimously as to each mitigating factor,
reasoning that any such requirement “impermissibly limits jurors’ consideration of mitigating
evidence.” See McKoy v. North Carolina, 494 U.S. 433, 444 (1990). Though Mills was decided
prior to Davie’s direct appeal (which took place between 1992 and 1997), it was not until more
recently that the Mills analysis was applied to jury instructions such as those given in this case.
          The “acquittal-first” doctrine derived from Mills has been extended to “[a]ny instruction
requiring that a jury must first unanimously reject the death penalty before it can consider a life
sentence,” see Davis v. Mitchell, 318 F.3d 682, 689 (6th Cir. 2003), but the Davis case in 2003 was
the first case in this circuit to apply the doctrine to cases like the instant one, where the instructions
did not explicitly so instruct the jury. Id. at 684-85.6 In fact, the first case in this circuit to address
“acquittal-first” instructions was Mapes v. Coyle, 117 F.3d 408 (6th Cir. 1999), a case decided two
years after the Ohio Supreme Court decided Davie’s direct appeal. Unlike the instructions at issue
here, Mapes featured instructions that explicitly commanded the jury that “you must unanimously
find that the State has failed to prove beyond a reasonable doubt that the aggravating circumstances
of which the defendant was found guilty of committing outweigh the mitigating factors.” Id. at 416
(emphasis added).
         It is true that Mapes relied on State v. Brooks, 661 N.E.2d 1030 (Ohio 1996), an Ohio
Supreme Court case decided during the time period between Davie’s direct appeal to the state
appellate court and his direct appeal to the state supreme court. But Brooks also involved an explicit
unanimity instruction like the one in Mapes, as did other cases discussing “acquittal-first”
instructions prior to February 18, 1997, the date on which Davie’s direct appeal to the Ohio Supreme
Court was submitted. See id. at 1040 (“You are now required to determine unanimously that the
death penalty is inappropriate before you can consider a life sentence.”) (emphasis added); see also
Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989) (“If, after your deliberations, you unanimously
conclude that there is a sufficiently mitigating factor or factors to preclude the imposition of the
death sentence, you should sign the form which so indicates.”). Thus, even if could be argued that,
at the time of Davie’s direct appeal, a reasonable counsel should have raised the “acquittal-first”
issue based on the Mapes, Brooks, and Kubat cases, the jury instructions in those cases differed
significantly from the jury instructions present in this case. See Davis, 318 F.3d at 693-97 (Boggs,
J., dissenting) (distinguishing the instructions in that case from the instructions in Brooks and other
cases). Notably, shortly after the Brooks decision, the Ohio Supreme Court rejected the contention
that the doctrine applied to the non-explicit instructions given in Davis. See State v. Davis, 666
N.E.2d 1099, 1109 (Ohio 1996) (distinguishing Brooks); see also Henderson v. Collins, 262 F.3d
615, 622 (6th Cir. 2001) (noting that the Ohio Supreme Court’s decision in Davis required the
challenged instruction to be similar to the acquittal-first instruction struck down in Brooks before
reversal of a capital sentence is warranted); cf. Williams v. Coyle, 260 F.3d 684, 702 (6th Cir. 2001)
(rejecting Mills challenge to jury instructions similar to those in the instant case). It was not until
2003 that this court, on habeas, found that determination to be error. See Davis, 318 F.3d at 684-85.
         Thus, given the state of the law existing at the time of Davie’s direct appeal, Davie’s
appellate counsel was not ineffective when he failed to argue that the penalty-phase jury instructions
in this case were unconstitutional under the “acquittal-first” doctrine. At the time of Davie’s appeal,
it simply was not clear that such non-explicit instructions could be considered constitutionally
infirm. Accordingly, the performance of Davie’s appellate counsel did not fall below an objective
standard of reasonableness when counsel failed to raise the claim on direct appeal. Therefore, the
state courts’ determination of this issue was not an unreasonable application of Strickland.

         6
            And, as discussed in Part III.C., infra, even in Davis, the jury instructions were more explicit than those at
issue in this case. See 318 F.3d at 685 (“[Y]ou must find that the State has failed to prove beyond a reasonable doubt
that the aggravating circumstances which the defendant was found guilty of committing outweigh the mitigating
factors.”).
No. 03-4293                Davie v. Mitchell                                                   Page 14


                                                  C.
        Even if this court could properly ignore the procedural default in this case of Davie’s
underlying “acquittal-first” claim, that claim still would not warrant habeas relief. The only possible
justification for reaching the substantive “acquittal-first” claim would be the fact that the Ohio
appellate court actually determined—in the context of adjudicating Davie’s ineffective assistance
claim—that the underlying substantive claim lacked merit. This necessary reliance on the fact that
the state court decided the issue requires inexorably that AEDPA’s deferential standard of review
be applied to the state appellate court’s determination of that claim, which constitutes the last
reasoned determination on the issue. See Payne v. Bell, 418 F.3d 644, 660-61 (6th Cir. 2005);
Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006). And where, as here, the state court “adjudicated
the claim but with little analysis on the substantive constitutional issue,” Vasquez v. Jones, 496 F.3d
564, 569 (6th Cir. 2007), we apply modified AEDPA deference. Under that standard, we conduct
“a ‘careful’ and ‘independent’ review of the record and applicable law, but cannot reverse ‘unless
the state court’s decision is contrary to or an unreasonable application of federal law.’” Id. at 570
(quoting Maldonado v. Wilson, 416 F.3d 470, 476 (6th Cir. 2005)). The proper inquiry here is again
whether the state court’s disposition of the claim was an unreasonable application of clearly
established federal law, as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
         Though the Mapes and Brooks decisions had been decided by 2001, those cases, as
explained, involved explicit unanimity instructions. Reliance on the later extension of those cases
in Davis is unwarranted, considering that under AEDPA, we must look only to the Supreme Court
holdings “as of the time of the relevant state-court decision.” See Williams v. Taylor, 529 U.S. 362
(2000). See also Mason v. Mitchell, 320 F.3d 604, 614 (6th Cir. 2003). At the time of the relevant
state court decision in this case (2001), the most that can be said is that it was clearly established
federal law, under Mills, that instructions like the ones featured in Brooks and Mapes violated the
Constitution. For a state court not to anticipate the holdings of subsequent circuit cases dealing with
less explicit instructions can hardly amount to an unreasonable application of clearly established
Supreme Court law. This is especially so in light of the contemporaneous cases in this very circuit
that approved instructions similar to those in this case. See Henderson v. Collins, 262 F.3d 615, 622
(6th Cir. 2001). In an extensive advisory discussion of the case law in this circuit regarding
acquittal-first instructions, this court noted that the Mapes doctrine was “expanded” in Davis, and
recognized that certain cases in this circuit questioned the validity of Mapes and Davis. See Williams
v. Anderson, 460 F.3d 789, 810, 811 (6th Cir. 2006). Due to the lack of clarity in the law, and due
to this court’s not yet having expanded the Mapes doctrine, the state court’s decision in Davie’s case
appears not to have been an unreasonable one.
        Because Davis itself was an AEDPA case, however, it is arguably inconsistent with the law
of the circuit to hold that a state court reasonably applied Supreme Court law by upholding an
instruction identical to the one in Davis. But in fact the instruction in Davie’s case was considerably
less objectionable than the instruction in Davis. The pertinent instruction in Davis told the jury that
“you must find that the State” failed to prove that aggravating factors outweigh mitigating factors.
Davis, 318 F.3d at 685. No such instruction is present in this case. Rather than employing the “you
must” language, the trial court in this case stated “[i]f, on the other hand, you’re not firmly
convinced” that aggravating factors outweigh mitigating factors, “then the State has not met its
burden of proof.” JA 1445-46. The trial court also later explained that “[o]n the other hand, if after
considering all of the evidence . . . you find that the State has failed to prove” that aggravating
factors outweigh mitigating factors “then you will return a verdict reflecting that decision.” JA
1456-57.
        Although Davis did not include a Mapes-like command that the jury “must unanimously
find” that the state failed to prove that the aggravating factors outweighed the mitigating factors, the
court found it problematic that the jury was instructed that it “must” find that the government failed
No. 03-4293                Davie v. Mitchell                                                   Page 15


to prove that the aggravating factors outweighed the mitigating factors “immediately” prior to a
unanimity instruction that “all 12 of you must be in agreement.” Davis, 318 F.3d at 689. At Davie’s
sentencing, the court never instructed the jury that it “must find” that the government failed to prove
that the aggravating factors did not outweigh the mitigating factors. Rather, it stated that if “you’re
not firmly convinced . . . then the State has not met its burden of proof” and “if . . . you find that
the State has failed to prove by proof beyond a reasonable doubt, that the aggravating circumstances
which the Defendant, Roderick Davie, was found guilty of committing . . . outweigh the mitigating
factors, then you will return a verdict reflecting that decision.” JA 1445-46, 1456-57.
        And while it is true that the trial court had explained that “[a]ll 12 jurors must agree on a
verdict” prior to the last of three times this language was used, JA 1456, that explanation took place
immediately before the court instructed that the jury must recommend death if it found that the
aggravating factors outweighed the mitigating factors. Approximately 70 words separated the
unanimity instruction and the acquittal instruction at issue in this case, and these words related to
finding that the aggravating factors outweighed the mitigating factors. Thus, if anything, the “12
jurors must agree” language affected the death sentence determination, and not the later instruction
regarding mitigating factors outweighing aggravating factors. Therefore, unlike Davis, the
unanimity instruction here did not take place “immediately” before or after the acquittal instruction
or the “in this event” instruction. Consequently, the instruction here did not “improperly imply that
only ‘in [the] event’ of acquittal, which had to be unanimous, could the jurors consider life,”
Williams, 460 F.3d at 812, in the way the instruction was held to do in Davis.
        Davis is therefore not controlling. Under the law of the circuit as it then existed, as well as
under subsequent developments, the Ohio courts’ disposition of Davie’s objection to the jury
instructions was not an unreasonable application of Supreme Court law. Thus, even were the
substantive “acquittal-first” claim properly before this court, habeas relief would not be warranted.
                                                  IV.
         Davie’s prosecutorial misconduct arguments are also without merit. The district court
properly analyzed these claims, see 291 F. Supp. 2d at 606-607, 617-20, and we adopt its reasoning
in that regard.
        Davie alleges that during its closing arguments in the guilt phase of the trial, the prosecution
improperly denigrated him and his counsel. Setting aside the issue of the procedural default of this
claim and of Davie’s failure to object at trial to most of the allegedly improper comments, we cannot
grant habeas relief on this claim. Not only is the Ohio Supreme Court’s rejection of this claim
neither an unreasonable application of nor contrary to federal law, see 686 N.E.2d at 263, but we
agree with the district court that, even were we to review this claim independently, we would not
find that the comments in question rendered Davie’s trial fundamentally unfair. See 291 F. Supp.
2d at 607.
        Likewise, Davie’s contention that the prosecution improperly commented on the failure of
a defense expert to testify does not merit relief. Without even considering procedural default, Davie
still makes no showing that the Ohio Supreme Court’s rejection of this claim was an unreasonable
application of federal law, see 686 N.E.2d at 264, and the comments did not render the trial
fundamentally unfair. See 291 F. Supp. 2d at 607.
No. 03-4293               Davie v. Mitchell                                              Page 16


        Finally, Davie argues that certain statements in the prosecution’s penalty-phase closing
argument were improper. We again agree with the district court that, even if this claim is not
defaulted, the Ohio Supreme Court did not unreasonably apply federal law in rejecting this claim,
see 686 N.E.2d at 263, and we would independently conclude that “[e]ven if all the statements were
improper, they did not so infect the trial” with unfairness as “to make the resulting conviction a
denial of due process.” 291 F. Supp. 2d at 619-20.
       Davie’s prosecutorial misconduct claims do not warrant habeas relief.
                                               V.
       For the foregoing reasons, we affirm the judgment of the district court.
No. 03-4293                Davie v. Mitchell                                                  Page 17


                                     ____________________
                                       CONCURRENCE
                                     ____________________
       R. GUY COLE, JR., Circuit Judge, concurring.
                                                  I.
       The Supreme Court has noted that:
       [e]xpanded concepts of fairness in obtaining confessions have been accompanied by
       a correspondingly greater complexity in determining whether an accused’s will has
       been overborne[—]facts are frequently disputed, questions of credibility are often
       crucial, and inferences to be drawn from established facts are often determinative.
       The overall determination of the voluntariness of a confession has thus become an
       exceedingly sensitive task, one that requires facing the issue squarely, in illuminating
       isolation and unbeclouded by other issues and the effect of extraneous but prejudicial
       evidence.
Jackson v. Denno, 378 U.S. 368, 390-91 (1964) (internal citations omitted). This case, which turns
on the facts surrounding Davie’s confession, is a perfect example of this complexity. After much
deliberation, I concur in the lead opinion’s conclusion that Davie’s appeal does not warrant habeas
relief.
                                       II. BACKGROUND
        Because Davie filed his habeas petition after the passage of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, we review his claims
to determine whether the “state court’s application of clearly established federal law was objectively
unreasonable.” Williams v. Taylor, 529 U.S. 362, 409 (2000). In so doing, we rely on the Ohio
Supreme Court’s determination of the facts as set forth in State v. Davie, 686 N.E.2d 245 (Ohio
1997). Further, we apply AEDPA deference to the state courts’ determinations regarding the merits
of the claim, but we review de novo all issues not reached by the state courts. Williams v. Anderson,
460 F.3d 789, 804 (6th Cir. 2006).
        Given the long procedural history of this case and the thorough factual background set forth
in the 1997 Ohio Supreme Court opinion, I will not rehash the details of Davie’s crimes, but the
relevant facts surrounding Davie’s confession follow.
                                      A. Davie’s Confession
                                      1. 8:30 a.m. - The Arrest
        At 8:30 a.m. on the day of the VCA murders, the Warren Municipal Court chief bailiff, Carl
Miller, received a phone call from Dwayne “Styx” Thomas, an informant who identified Davie as
the individual responsible for the crimes. Miller and the Warren Police Captain, Timothy Downs,
proceeded to the address Styx had given them, where they arrested Davie and advised him of his
Miranda rights. Davie acknowledged his understanding of the rights, but he refused to sign a waiver
of those rights.
No. 03-4293                Davie v. Mitchell                                                  Page 18


                                 2. 9:05 a.m. - The Initial Questioning
        Upon arriving at the police station at approximately 9:05 a.m., Captain Downs placed Davie
in an interrogation room and asked Lt. Carl Blevins to question him. Blevins and Detective Morris
Hill entered the interrogation room and re-read Davie his Miranda rights. The officers showed him
a written form presenting those rights. Davie initialed the form on each line, indicating he
understood his rights, but, again, refused to sign the waiver. At that point, the officers performed
an atomic absorption test on Davie’s hands, but they did not question him further. Davie neither
requested an attorney nor invoked his right to remain silent.
                                3. 9:59 a.m. - The Second Interrogation
        At 9:59 a.m., Downs and Blevins re-entered the interrogation room, informed Davie that they
would be recording the interview, and read Davie his Miranda rights again. For a third time, Davie
indicated that he understood his rights. This time, however, he informed the officers that he did not
want to make a statement:
       Blevins:        Do you not wish to make a statement or anything at this time.
       Davie:          Doesn’t matter to me.
       Blevins:        I heard you refuse.
       Davie:          I didn’t refuse[;] you said I didn’t have to if I didn’t want to.
       Blevins:        Do you wish to make a statement yes or no.
       Davie:          No statement.
       Blevins:        You wish not to make a statement.
       Davie:          Right.
       Blevins.        Okay that’s fine . . . this interview is now completed . . . .
(Joint Appendix (“JA”) 2018-20, partial transcript of taped interview with Davie at 9:59 on June 27,
1991.) At that point, the officers ended the interview and transported Davie to a jail cell. Davie
never asked to speak to an attorney.
        Shortly after the officers had finished the second interrogation, Detective Sines called the
Trumbull County Prosecutor, Dennis Watkins, to ask him for his legal advice on how the officers
could proceed in questioning Davie, if at all. The prosecutor advised Sines that “as long as Davie
did not refuse to speak and did not demand an attorney, the officers could talk to him, provided that
Davie acknowledged that he understood his rights.” Davie, 686 N.E.2d at 256.
                                4. 12:15 p.m. - The Third Interrogation
        Given Watkins’s advice, at approximately 12:15 p.m., Detective Sines and Detective
Sergeant Gary Vingle requested that Davie be brought from his jail cell for interrogation. Davie
agreed to talk to the officers and was escorted to the interrogation room. There, the officers re-
advised him of his Miranda rights and told him that the interview would be recorded. Davie again
initialed each sentence of the constitutional rights form except for the waiver of rights and indicated
that he understood. As before, Davie did not request a lawyer and willingly spoke to the detectives.
No. 03-4293                Davie v. Mitchell                                                  Page 19


       The following exchange then occurred:
       Sines:          Do you want to sign your name here that you understand that?
       Davie:          Well I’m not signing the waiver of rights. I didn’t sign it earlier.
       Sines:          Okay, okay. You can take it, go ahead. He didn’t sign it.
       Vingle:         Would you be willing to answer some of our questions if we ask you
                       some, you know you [sic]?
       Davie:          Yes.
(JA 2021.) As the officers proceeded with the interview, Davie told them that although he did not
remember being around the VCA that morning, he remembered having his gun with him. He then
described the gun and informed them that he always carried one. When, at about 12:35 p.m., Davie
told the officers he could not remember anything else about the incident and no longer wished to
speak with them, the officers terminated the interview and Davie was returned to his jail cell.
                                   5. 2:00 p.m. - The Confession
         At 2:00 p.m. that same afternoon, Sergeant Massucci went to the cell to take photographs
of Davie. Davie asked Massucci if he could make a phone call, and Massucci granted his request.
Davie called his girlfriend, Sonya Barnes, who apparently told him that she and Davie were being
discussed in the local media. When Davie went back to his cell, he told Massucci that he wanted
to talk to Vingle to discuss what was being released to the media and to determine what information
Styx had given the police that morning.
        Davie was subsequently brought from his cell to the interrogation room where Vingle and
Sines re-advised him of his Miranda rights. For a third time, Davie initialed a constitutional rights
form provided by the officers, indicating that he understood his rights, and signed the form.
Although Davie once again refused to sign the waiver, he explicitly stated that he agreed to talk to
the officers, and he did not ask to speak to an attorney.
       Vingle:         Do you want to acknowledge this that you have been given your
                       rights again? Do you understand this one too, do you want to initial
                       that one?
       Davie:          It don’t matter, do it.
       Sines:          Any particular reason why, you just don’t want to initial that part?
       Davie:          Right.
       Sines:          Are you still willing to talk to us?
       Davie:          Right.
       Sines:          Okay.
       Vingle:         Okay, this has been building up?
       Davie:          I don’t know, I just flipped out this morning.
       Vingle:         Tell us what happened, tell us.
No. 03-4293                Davie v. Mitchell                                                   Page 20


       Davie:           I mean, it’s evident what happened.
       Sines:          We have an idea what happened but we would like to hear from you
                       what happened, just to verify what we got.
       Davie:          I went down to the VCA and shot ‘em up.
(JA at 866-67.) Davie then asked the officers to type up his statement because he did not want to
have to confess again. Once the tape was transcribed, Davie signed or initialed each page of the
transcript.
        On a motion to suppress filed by Davie’s appointed counsel, the trial court found Davie’s
2:00 p.m. confession to be admissible. The court reasoned that despite Davie’s failure to initial the
waiver-of-rights portion of the form, he had impliedly waived his right to remain silent during both
the 12:15 p.m. and the 2:00 p.m. interrogations, and that Davie had initiated the 2:00 p.m.
interrogation that ultimately led to his confession. Davie, 686 N.E.2d at 256-57.
                                           III. ANALYSIS
        Despite some misgivings surrounding the somewhat questionable police conduct at issue in
the case, I join in the lead opinion’s conclusion that the trial court did not err in admitting Davie’s
confession. Though the officers questioned Davie four separate times over the course of
approximately six hours, the trial court correctly determined that they respected Davie’s rights under
Miranda, Mosley, Edwards, and their progeny. Further, I agree with the lead opinion’s conclusion
that Davie himself initiated the 2:00 p.m. interrogation during which he ultimately confessed.
                                          A. Voluntariness
        The test for the voluntariness of a defendant’s confession is whether, under the totality of the
circumstances, the government obtained a statement by coercion or improper inducement. Haynes
v. Washington, 373 U.S. 503 (1963). A factual inquiry into the voluntariness of the statement should
focus on the conduct of the law enforcement officers involved. Mincey v. Arizona, 437 U.S. 385
(1978).
        In Michigan v. Mosley, 423 U.S. 96, 104 (1975), the Supreme Court clarified that the
admissibility of statements obtained after a person in custody decides to remain silent depends on
whether the police “scrupulously honored” his right to cut off questioning should they renew
interrogation. Mosley requires an examination of whether the officers’ conduct demonstrates a
failure to respect the defendant’s right to end questioning, thereby indicating an “effort [] to wear
down [the defendant’s] resistance and make him change his mind,” id. at 105-06, and prescribes
several factors relevant to the determination: (1) the amount of time that lapsed between
interrogations; (2) the scope of the second interrogation; (3) whether new Miranda warnings were
given; and (4) the degree to which police officers pursued further interrogation once the suspect
invoked his right to silence. Id. Although these factors are not intended to be a per se test, courts
use them in considering whether, in the totality of the circumstances, admission of a defendant’s
incriminating statements violates Miranda. Id. at 103-05. In Edwards v. Arizona, 451 U.S. 477, 485
(1984), the Supreme Court added another aspect to the analysis, holding that if an accused requests
counsel, the police must cease all questioning “unless the accused himself initiates further
communication, exchanges or conversations with [them].”
        Viewing the facts through the lens of the Mosley factors, I agree that the officers questioning
Davie honored his right to remain silent. The police re-Mirandized Davie before each of the four
interrogations, including the interrogation in which Davie ultimately confessed. Moreover, during
the 9:05 a.m., 12:15 p.m. and 2:00 p.m. interrogations, Davie initialed and signed a form indicating
No. 03-4293                     Davie v. Mitchell                                                              Page 21


that he understood his rights. Further, Davie never asked for an attorney, and the transcripts
demonstrate that the police stopped questioning him when he refused to make a statement.
        Though the dissent argues that the officers did not wait long enough between their
interrogations, I find that the timing was not unreasonable under the circumstances.1 Although only
about five hours passed between the first, second, and third interrogations, “[t]he courts have
generally rejected a per se rule as to when a suspect must be re[-]advised of his rights after the
passage of time or a change in questioners . . . . In fact, a number of circuits have ruled that re-
warning is not required simply because time has elapsed.” United States v. Weekley, 130 F.3d 747,
751 (6th Cir. 1997); Evans v. McCotter, 790 F.2d 1232, 1237-38 (5th Cir. 1986) (defendant
voluntarily waived his rights where he was twice advised of his rights over the course of a three-
hour period, notwithstanding a change in interview locations). Where the officers consistently read
Davie his rights prior to interrogating him and in all instances, respected Davie’s request to end the
questioning, the officers were not acting outside the bounds of what have been deemed appropriate
methods of interrogation. Further, Davie’s case is wholly incomparable to the types of extreme
physical and psychological coercion suffered by other defendants. Compare Beecher v. Alabama,
389 U.S. 35, 38 (1967) (holding confession to be involuntary where officers already having
wounded the defendant, ordered defendant at gunpoint to confess or be killed), Davis v. North
Carolina, 384 U.S. 737, 745-47 (1966) (confession found involuntary where officers interrogated
the defendant over sixteen days and held him incommunicado in a closed cell without windows and
with limited food), and United States v. Anderson, 929 F.2d 96, 100 (2d Cir. 1991) (confession
coerced when officers told suspect he could either have an attorney present during questioning or
cooperate with the government).
         The fact that the officers focused each of their interrogations on the issue of what occurred
at the VCA does not change my analysis because “a second interrogation is not rendered
unconstitutional simply because it involves the same subject matter discussed during the first
interview.” United States v. House, 939 F.2d 659, 662 (8th Cir. 1991); see also Hatley v. Lockhart,
990 F.2d 774 (8th Cir.1993) (the fact that a second interrogation of defendant involved the same
subject matter as the first did not violate defendant’s rights where there was no effort to wear down
the resistance, and the police had not re-contacted him with the sole purpose of trying to induce him
to abandon his earlier silence); United States v. Hsu, 852 F.2d 407, 412 (9th Cir. 1988) (questioning
defendant about the same crime does not of itself prove bad faith or undue pressure on the part of
the police); but see Charles v. Smith, 894 F.2d 718, 726 (5th Cir. 1990) (Mosley violated where same
officer questioned defendant about same crime “just a few minutes after” he had invoked his right
to silence). Moreover, as to the actual confession, a defendant can waive an invocation of his earlier
right to remain silent by subsequently making a voluntary statement to the police. See, e.g., North
Carolina v. Butler, 441 U.S. 369, 374-75 (1979) (waiver may be inferred from particular facts and
circumstances surrounding the case); United States v. Kaufman, 92 Fed. App’x 253, 255-56 (6th Cir.
2004) (no Miranda violation where defendant refused to sign a waiver form but freely spoke to the
police after being advised of his Miranda rights); United States v. Miggins, 302 F.3d 384, 397 (6th
Cir. 2002) (written waiver unnecessary to establish knowing, intelligent and voluntary waiver of
Miranda rights); Henderson v. Singletary, 968 F.2d 1070, 1073-74 (11th Cir. 1992) (finding that
officer’s three separate attempts to clarify whether a defendant intended to cut off questioning did
not violate the defendant’s constitutional rights).


         1
          I believe that the short passage of time between the 9:05 a.m. and the 9:59 a.m. interrogations is counter-
balanced by the fact that the officers re-read Davie his Miranda rights and immediately ended the interrogations
following Davie’s requests. Moreover, other courts have found the passage of even shorter periods to have been
reasonable in the face of the other Mosley factors. See United States ex rel. Patton v. Theiret, 791 F.2d 543, 547-48 (7th
Cir. 1986) (finding that the passage of forty minutes does not require that the police re-Mirandize defendant); Mills v.
Commonwealth of Kentucky, 996 S.W.2d 473, 480-83 (Ky. 1999) (10-20 minute interval between interrogations
“concerned” the court, but was found long enough under the circumstances).
No. 03-4293                 Davie v. Mitchell                                                   Page 22


        Finally, Davie’s personal characteristics—including his age, education, intelligence, and
prior experience with the police—all point to a voluntary confession. See Jackson v. McKee, 525
F.3d 430, 434 (6th Cir. 2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Davie
grew up in a relatively stable and supportive home environment, attended school until his expulsion
at age sixteen, and, though he has some cognitive and psychological problems, he was unaffected
by any severe mental deficiencies. Davie, 686 N.E.2d at 265-66.
        It is notable, moreover, that Sines contacted the county prosecutor to ensure that his
questioning of Davie was within the bounds of the law. I do not share the dissent’s view that the
phone call to the prosecutor evidences an effort by Sines to ignore Davie’s refusal to waive his rights
in order to continue the interrogation. On the contrary, I view the call as an indication that Sines
was conscious of not overstepping Davie’s rights by continuing to question Davie after his refusals
to waive his rights during the first and second interrogations. Sines clearly knew that a thin line
exists between proper questioning of defendants and coercive tactics, and I believe, absent evidence
to the contrary, that he was taking steps to guarantee that he did not cross that line.
                                             B. Initiation
         Davie’s assertion that his statements were involuntary is further undermined by the fact that
he—not the officers—initiated the 2:00 p.m. encounter during which he ultimately confessed. This
Court has determined that “initiation occurs when, without influence by the authorities, the suspect
shows a willingness and a desire to talk generally about his case.” United States v. Whaley, 13 F.3d
963, 966-67 (6th Cir. 1994) (citing Oregon v. Bradshaw, 462 U.S. 1039 (1983) (holding that a
defendant can negate his earlier invocation of his Miranda rights by initiating a conversation)).
Moreover, some courts have found that the requirement that a “significant period” of time pass
between a defendant’s invocation of his right to silence and a second round of questioning is not
applicable to a situation in which the police discontinue questioning and the defendant subsequently
initiates a confession. See, e.g., Henderson, 968 F.2d at 1071 (“It does not make sense to apply the
same time standard to situations in which the defendant controls the time period between the end
of police questioning and the start of a defendant-initiated confession.”); United States v. Alexander,
447 F.3d 1290, 1294 (10th Cir. 2006) (Mosley time limits inapplicable “if the suspect, and not the
police, reinitiates contact and agrees to questioning”).
        The facts suggest that Vingle interrogated Davie at 2:00 p.m. because Davie wanted to talk.
Around 2:00 p.m., when Massucci was photographing Davie in his cell, Davie asked Massucci if
he could make a phone call, a request Massucci granted. In talking to Barnes, Davie apparently
learned that the media was covering the morning’s events occurring at the VCA, and at that point,
he requested to meet with Vingle. Vingle complied, the officers re-Mirandized Davie, and Davie
confessed. Nothing about this encounter leads me to conclude that the police broke Davie’s will to
force his ultimate confession.
                                            C. Conclusion
         The principle that a person’s rights are violated when police coerce an involuntary
confession from him, truthful or otherwise, through physical or psychological methods designed to
overbear his will is fundamental to our justice system. See Blackburn v. Alabama, 361 U.S. 199,
206 (1960) (“coercion can be mental as well as physical . . . the blood of the accused is not the only
hallmark of an unconstitutional inquisition”). Based on this principle, the Supreme Court has long
held that certain interrogation techniques, either in isolation or as applied to the unique
characteristics of a particular suspect, are so offensive to a civilized system of justice that they must
be condemned under the Due Process Clause of the Fourteenth Amendment. See Brown v.
Mississippi, 297 U.S. 278, 286-87 (1936). Though the police’s continual questioning of Davie may
toe the line of what is reasonable behavior by law enforcement, I agree that the trial court’s decision
No. 03-4293               Davie v. Mitchell                                               Page 23


to admit his confession at trial was reasonable under the circumstances and find that an affirmance
of the district court’s denial of habeas is appropriate here.
No. 03-4293                       Davie v. Mitchell                                                               Page 24


                                                 ________________
                                                     DISSENT
                                                 ________________
        MERRITT, Circuit Judge, dissenting. The majority in this case is reading the AEDPA
statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the
United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”). Here,
as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda
v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to
outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth
Amendment right against self-incrimination. The capital defendant invoked both his right to silence
and counsel to no avail before he was then enticed to confess.
                                                     I. Summary
         Police officers on June 27, 1991, confronted petitioner Roderick Davie six times within a 5-
1/2 hour period between his arrest at 8:30 A.M. that morning and his confession around 2:00 P.M.
that afternoon. At none of these confrontations was he willing to sign a waiver of his rights to
silence and a lawyer. The time between the confrontation was in sequence 30 minutes, 45 minutes,
2 hours and 2 hours. At the first confrontation, when he was arrested, Davie was given his Miranda
warnings but he did not confess. At the second confrontation at 9:05 A.M., Davie was again
informed of his rights and asked to sign a waiver form. He refused, saying       he “didn’t want to”
waive his right to remain silent and his right to the assistance of a lawyer.1 At 9:59 A.M., police
confronted Davie a third time and informed him of these rights yet again, to which he declined again
to sign the waiver form and stated unequivocally that he did not “wish to make a statement.” Two
hours later, at 12:15 P.M., a new team of police interrogators confronted Davie a fourth time and
read him his Miranda rights. He again exercised his right to silence and counsel by refusing to sign
the waiver form, after which he was asked a number of questions to which he finally answered that
he had “nothing to tell” the police. The fifth confrontation occurred 1-1/2 hours later when police
sent a detective as a photographer to take pictures of Davie in his cell (rather than at the booking
desk). A conversation ensued between the detective and Davie, and Davie asked if he could talk to
a police officer. The sixth confrontation immediately followed in which Davie again refused to sign
the waiver form but asked the officer how the news media had obtained particular information.
Davie initiated the conversation only to ask a question. Instead of answering Davie’s questions, the
officer turned the question around and began to interrogate Davie again. In answer to this
interrogation at the sixth encounter, Davie then briefly confessed to the murders (“I went there and
shot them up.”). At that time, the officer again advised Davie of his Miranda rights and Davie gave
a full, detailed, taped confession. The consistent, express refusal each time to sign the waiver of
these two fundamental rights at the request of the police officers should have put the officers on
notice that their persistent requests for a formal, pen-to-paper relinquishment of these rights would

         1
             The waiver of rights form that Davie refused to sign stated:
         I have read this statement of my Constitutional Rights and understand what my rights are. I am
         willing to make a statement and answer questions. I do not want a Lawyer at this time. I understand
         and know what I an [sic] doing. No promises or threats have been used against me. I therefore waive
         my rights and agree to make a statement.
Davie signed each constitutional right as the police officer read it to him, thereby indicating that he understood the right;
but he refused to sign the wavier while stating verbally that he would not waive those rights, thereby conveying the
message to the police that he understood his rights and was exercising his rights by refusing to waive them. He thus
refused by these actions to waive his right to remain silent and his right to the assistance of a lawyer.
No. 03-4293                Davie v. Mitchell                                                Page 25


cause a reasonable person to believe that his signature was necessary in order to make a “knowing
and intelligent waiver of fundamental rights,” as required by Johnson v. Zerbst, 304 U.S. 458, 468
(1938) (in order for a constitutional right to be “properly waived” the accused must act “competently
and intelligently).
        The jury returned a death verdict on March 19, 1992, which was upheld on direct appeal on
December 27, 1995, in an unreported opinion by the Ohio Court of Appeals and then by the Ohio
Supreme Court on November 26, 1997, State of Ohio v. Davie, 80 Ohio St. 3d 311, 686 N.E.2d 245.
The Ohio Supreme Court held the confession admissible because Davie’s earlier multiple exercises
of his right to remain silent “did not preclude a later interrogation by other officers” within two
hours because Davie “initiated the conversation himself.” 686 N.E.2d at 257. In the fifth
confrontation, Davie had only asked a question of the police photographer who was sent to his cell
and then of another officer in the sixth encounter that immediately followed. The police did not
“scrupulously honor” his previous exercise of his rights when they again began to ask him questions
rather than simply reply to his question. Such police conduct violated the Miranda standard against
“persisting in repeated efforts to wear down resistance and make him change his mind,” after
exercising his Fifth and Sixth Amendment rights by refusing to execute the waiver form four times
since 8:30 A.M. that morning and expressly stating three times that he did not want to give a
statement.
               II. The Facts Respecting the Interrogations and the Confession
        Petitioner Roderick Davie was employed by Veterinary Companies of America, a pet food
and supplies distributor in Warren, Ohio, as a warehouse worker until he was fired in April of 1991.
On the morning of June 27, 1991, Davie arrived at the company warehouse and within minutes shot
William Everett and John Coleman, two truck drivers with the company, and assaulted Tracey
Jefferys, a secretary at the company. Coleman and Jefferys died at the scene, but Everett survived
despite being shot multiple times.
        Around 8:30 A.M. that morning, authorities received a phone call from Dwayne Thomas,
known as “Styx,” indicating that he had information about the murders at the Veterinary Companies
of America. Thomas, known as an informant to local authorities, indicated that he was with the
perpetrator, Davie. The police found Davie at home, where he was first advised of his Miranda
rights but did not waive those rights. He was arrested and brought directly to an interview at the
police station for interrogation.
       A few minutes later, at about 9:05 A.M., Lieutenant Blevins and Detective Hill read Davie
his rights and gave him a Warren Police Department form with the heading “YOUR
CONSTITUTIONAL RIGHTS” at the top followed by the standard Miranda warning broken down
line-by-line with space to initial that he understood each right. The section labeled “WAIVER OF
RIGHTS” states:
       I have read this statement of my Constitutional Rights, and understand what my
       rights are. I am willing to make a statement and answer questions. I do not want a
       Lawyer at this time. I understand and know what I an [sic] doing. No promises of
       threats have been used against me. I, therefore, waive my rights and agree to make
       a statement.
(J.A. at 2017.) Davie initialed the lines on the standard form saying he understood his rights. He
refused to initial the waiver portion of the form and told Blevins and Hill “he didn’t want to” sign
the form or talk. (J.A. at 688. Testimony of Lt. Blevins.) An officer wrote on the form that Davie
“Refused to sign” the form. (J.A. at 2017.) The record does not indicate who wrote it. Lieutenant
Blevins performed an atomic absorption analysis on Davie’s hands looking for the presence of
No. 03-4293                 Davie v. Mitchell                                                     Page 26


gunpowder. The officers did not attempt to question Davie further but told him they would return
later to question him about the same crime.
        At 9:59 A.M., less than an hour later, Blevins and Hill confronted Davie a third time in the
interview room to question him about the murders. They informed Davie that they were going to
record the interview. They again read Davie his rights and asked him if he understood them. He
replied yes. Despite Davie’s refusal to waive his rights, the officers began to question him, first
asking him if he knew why he was “down here.” Davie answered no. Nevertheless, as if he had
never asserted his Miranda rights, the officers told him that they were investigating a shooting on
Main Street that occurred earlier that morning and asked him if he had any knowledge of it. Davie
responded that he remembered “some things,” including that he “had a gun earlier.”
        Blevins then acknowledged on the tape that he was aware that Davie had not waived his
rights. But the following exchange occurred:
        Blevins:        Do you not wish to make a statement or anything at this time.
        Davie:          Doesn’t matter to me.
        Blevins:        I heard you refuse.
        Davie:          I didn’t refuse you said I didn’t have to if I didn’t want to.
        Blevins:        [D]o you wish to make a statement yes or no.
        Davie:          No statement.
        Blevins:        You wish not to make a statement.
        Davie:          Right.
        Blevins:        Okay that’s fine . . . this interview is now completed . . . .
(J.A. at 2018-20, partial transcript of taped interview with Davie at 9:59 on June 27, 1991.)
        At the suppression hearing Blevins testified that when he returned to the interview room at
9:59 A.M., he had “forgotten” that Davie refused to waive his rights less than an hour earlier. (J.A.
at 717.) Blevins’ testimony was unequivocal: “If [Davie] wasn’t going to initial it [the waiver
portion of the form], then I wasn’t going to talk to him. . . . I believe that he should initial that . . .
to give a statement.” When asked if he believed he had to have an express waiver, he answered,
“That’s correct.” (J.A. at 697, 724-25.) The trial court suppressed the statements made by Davie
at the 9:59 interview.
        At the suppression hearing, Blevins also testified that at the conclusion of the 9:59 A.M.
interview, he conferred with Detective Sines about Davie’s failure to sign the waiver portion of the
form. Blevins did not play the tape for Sines, but Blevins specifically and unequivocally testified
that he told Sines that the interview was terminated because Davie refused to sign the waiver of
rights and because Davie expressly stated that he did not wish to make a statement. (J.A. at 726.)
After the 9:59 A.M. interview, the first team of investigators ceased interacting with Davie, having
never obtained a confession or waiver. Detective Sines then replaced Blevins and Hill and
commenced a fourth effort to get Davie to confess.
         Detective Sines testified at the suppression hearing that Lieutenant Blevins and Detective
Hill informed him that Davie refused to initial the waiver portion of the form. Contrary to Blevins’
clear testimony that Blevins explicitly told Sines that Davie had expressly refused to talk, Sines
testified that he “did not remember” hearing that Davie had expressly stated that he did not want to
make a statement. Sines also testified that he made no effort to review the tape of the 9:59 A.M.
interview. (J.A. at 790.)
       Detective Sines testified that he called Trumball County Prosecutor Dennis Watkins for
advice about how to get Davie to talk to the police. Sines testified that he was not “aware” that
No. 03-4293                Davie v. Mitchell                                                  Page 27


Davie had said at the 9:59 A.M. interview that he did not want to make a statement, and so Sines
did not tell the prosecutor that Davie had stated a few minutes earlier that he did not want to talk.
Sines testified that “[Watkins’] advice to me was as long as he [Davie] did not demand an attorney
present at the time, and as long as he acknowledged that he understands his Constitutional rights,
that he could talk with him, as long as he volunteered or would talk with us.” (J.A. at 740.) Despite
Davie’s refusal to waive his right to a lawyer and his declaration to the police that he did not want
to talk, Sines interpreted this advice as allowing the police to interrogate Davie once again. (J.A.
at 793.)
         Detective Sines, accompanied by Detective Vingle, then went down to the jail area about
12:15 P.M. for a fourth interrogation of Davie. Again, both Sines and Vingle denied that they knew
that Davie had verbally refused to make a statement at the 9:59 A.M. interview, and they
acknowledged that they had not reviewed the tape from that interview. (J.A. at 871.) They testified
that they only knew Davie had refused to sign the waiver portion of the form. Consequently, two
hours after Davie first refused to waive the assistance of counsel or talk, the police again proceeded
to interrogate Davie. Davie, who agreed to the officer’s request that he speak with them, was
advised that the interview was going to be taped. The 12:15 P.M. interview started with Sines
saying, “I’m Detective Sines and Detective Vingle and we will advise you of your rights, we want
to talk to you a little bit. If you have something to tell us, we’ll listen to you. If you have nothing
to tell us then we’ll go from there okay.” Vingle says, “Okay Rod before we ask you any questions
you might understand your rights. Do you understand that right?” Although it is not clear what
“right” Vingle was referring to, Davie answered “Yes.” Vingle then proceeded to read the entire
Miranda warning and the waiver portion of the form aloud. Davie indicated that he understood
both. The officers did not inform Davie that if he did not want to talk the interview would cease;
instead they said, “If you have nothing to tell us then we’ll go from there okay.” They showed
Davie a new copy of the Warren Police Department form with the waiver of constitutional rights that
Davie had previously declined to sign. The form is timed at 12:15 P.M. and signed by Officers
Vingle and Sines. (J.A. at 2021.) The following exchange occurred:
       Sines:          Do you want to sign your name here that you understand that?
       Davie:          Well, I’m not signing the waiver of rights. I didn’t sign it earlier.
       Sines:          Okay, okay. You can take it, go ahead. He didn’t sign it.
       Vingle:         Would you be willing to agree to answer some of our questions if we
                       ask you some, you know you?
       Davie:          Yes.
Detective Vingle proceeded to ask Davie general questions about his employment history, before
returning to the issue of the waiver.
       Sines:          Roderick on this rights sheet that you signed, you acknowledged that
                       you understood your rights there, but you didn’t want to uh initial the
                       waiver of rights, okay, is that correct?
       Davie:          Right.
       Sines:          Okay being as though you did that do you have any objections to
                       talking to us anyhow.
       Davie:          No I don’t.
Sines then asked what happened at the Veterinary Companies of America that morning. Davie
responded “I don’t remember anything.” Davie, in response to further questioning, stated that he
did not remember being at the Veterinary Companies of America that morning, but that he knew he
had his gun with him that morning. He described the gun and said that he always carried his gun.
After more conversation and offers to get him a soft drink and a cigarette, the officers asked Davie
about a gun that Sines had with him. Davie stated, “Just like I told you, I don’t remember anything.
No. 03-4293               Davie v. Mitchell                                                Page 28


I remember waking up this morning and everything is a blank.” When asked if he remembered
being at the Veterinary Companies of America that morning, Davie again responded, “No I don’t.
If I was it’s a total blank to me.”
        The tape was turned off for three minutes at 12:27 P.M. Both Vingle and Sines testified that
they left the room, but neither could remember what they talked about outside the room. The
officers then returned and resumed the questioning.
       Sines:          Okay, one, one more time, this is for the record Roderick, um, you
                       don’t remember anything after you got up and watched t.v. until Carl
                       [Blevins] came [to arrest you]?
       Davie:          No I don’t.
       Sines:          You don’t have nothing else to say about what we’re talking about?
                       I’m in the blue about the picture.
       Davie:          I mean I can’t really, you know tell you anything now I don’t know
                       anything about.
       Sines:          Okay, okay you have nothing to tell us at this time about what we’re
                       asking you about?
       Davie:          No.
Sines concluded the interview at 12:35 P.M. The above statement was admitted at Davie’s capital
trial.
         At 2:00 P.M., another encounter began when Detective Massucci was sent to take pictures
of Davie in his cell. Davie asked if he could make a phone call. Massucci said yes, and when Davie
returned he told Massucci he wanted to talk to Detective Vingle. Massucci found Vingle and told
him Davie wanted to see him. Vingle went down to the jail, and took Davie into the jailer’s room
to ask him what he wanted. Vingle testified that Davie wanted to know how the news media got so
much information about him and his girlfriend. Vingle said he had no control over what the news
media gathered. Then Davie asked him “What did Styx tell you?” Instead of answering, Vingle
asked, “What did you tell Styx?” Davie replied, “I went there and shot them up.” Vingle testified
that he then told Davie that they needed to go upstairs to the interrogation room, where Davie would
be formally advised of his rights again. Davie agreed, and Vingle took him upstairs. (J.A. at 866-
67.) The following exchange occurred:
       Sines:         Roderick I understand you want to talk to us some more.
       Davie:         There’s not much to talk about. I mean, I done it.
       Vingle:        Well, wait a minute, before we get into that Roderick I’m going to
                      readvise you, okay.
       Davie:         I can understand all that.
       [Davie is readvised of his rights and states that he understands his rights.
       Vingle then reads the waiver portion of the form and asks Davie if he understands
       that. Davie answers “Right.”]
       Vingle:        Do you want to acknowledge this that you have been given your rights
                      again? Do you understand this one too, do you want to initial that one?
       Davie:         It don’t matter, do it.
       Sines:         Any particular reason why, you just don’t want to initial that part?
       Davie:         Right.
       Sines:         Are you still willing to talk to us?
       Davie:         Right.
       Sines:         Okay.
       Vingle:        Okay, this has been building up?
       Davie:         I don’t know, I just flipped out this morning.
No. 03-4293                Davie v. Mitchell                                                  Page 29


       Vingle:         Tell us what happened, tell us.
       Davie:          I mean, it’s evident what happened.
       Sines:          We have an idea what happened but we would like to hear it from
                       you what happened, just to verify what we got.
       Davie:          I went down to the VCA and shot ‘em up.
Davie then proceeded to talk more about the murders and what he did after he left the scene. After
about 15 minutes, Davie refused to talk further. He told the officers to type up his statement off the
tape because he did not want to go through the confession again. (J.A. at 2074.) After the tape was
transcribed, Davie signed or initialed each page of the transcribed statement at the bottom. (J.A. at
2052-2062.) Davie’s initials acknowledged that he understood his constitutional rights, but he once
again refused to sign or initial the waiver portion of the form regarding his right to a lawyer and to
remain silent. (J.A. at 2051.)
        Davie’s counsel, appointed afterward, moved to suppress all the statements he made to
police. The trial court held that there were no statements to suppress from the encounters at 8:30
A.M. or 9:05 A.M. and that the statement given at 9:59 A.M. must be suppressed because the
government had not shown that Davie waived his right to remain silent. The statements from the
12:15 P.M. and 2:00 P.M. interviews were admitted because the trial court found that Davie had
waived his rights by asking Vingle the question about “Styx.” The two confessions were admitted,
and Davie was convicted and received the death penalty. The District Court simply concluded that
the Ohio Supreme Court did not apply Supreme Court law in a way that was either “contrary to, or
an unreasonable application of, clearly established Federal law.” 291 F. Supp. at 597.
            III. The Miranda and Mosley Rights Are Well-Established and Were
                                 Abridged in This Case
      The purpose of the Miranda decision was to safeguard the long-recognized right against “the
compulsion inherent in custodial surroundings”:
       We have concluded that without proper safeguards, the process of in-custody
       interrogation of persons suspected or accused of crime contains inherently
       compelling pressures which work to undermine the individual’s will to resist and to
       compel him to speak where he would not otherwise do so freely. In order to combat
       these pressures and to permit a full opportunity to exercise the privilege against self-
       incrimination, the accused must be adequately and effectively apprised of his rights
       and the exercise of those rights must be fully honored.
Miranda, 384 U.S. at 467 (emphasis added).
        Among the important protections established by Miranda is the “right to cut off
questioning,” Miranda v. Arizona, 384 U.S. 474, which serves as an essential check on “the coercive
pressures of the custodial setting” by enabling the suspect to “control the time at which questioning
occurs, the subject discussed, and the duration of the interrogation,” Mosley v. Michigan, 423 U.S.
at 96, 103-04 (1975). This right is a “critical safeguard” of the Fifth and Sixth Amendment
privileges, Mosley, 423 U.S. at 103, and requires the police immediately to cease interrogating a
suspect if he “indicates in any manner, at any time . . . during questioning, that he wishes to remain
silent.” Miranda, 384 U.S. at 473-74 (emphasis added); Mosley, 423 U.S. at 100-02. The rule
requiring termination of questioning upon an accused’s invocation of his right to silence prevents
police from “persisting in repeated efforts to wear down [the accused’s] resistance and make him
change his mind.” Miranda, 384 U.S. at 473-74.
No. 03-4293                Davie v. Mitchell                                                  Page 30


        Almost a decade after Miranda, in Michigan v. Mosley, 431 U.S. 96, 106 (1975), the
Supreme Court held that the admissibility of incriminating statements obtained after a person in
police custody has decided to remain silent and not answer questions depends upon whether his or
her right to cut off questioning was “scrupulously honored” by police. 423 U.S. at 104. The
rationale underlying the “scrupulously honored” rule in Mosley is the same as that in Miranda: it
is necessary because custodial interrogation by its very nature subtly compels individuals to
incriminate themselves. Miranda, 384 U.S. at 467 (concluding that “without proper safeguards the
process of in-custody interrogation of persons suspected or accused of crime contains inherently
compelling pressures which work to undermine the individual’s will to resist and to compel him to
speak where he would not otherwise do so freely”); Mosley, 423 U.S. at 103-04 (requirement that
police cease questioning after right to silence is invoked “counteracts the coercive pressures of the
custodial setting”).
         In Mosley, the Supreme Court considered and severely limited when police could attempt
further questioning of a suspect who had previously asserted his right to remain silent. Mosley was
arrested on robbery charges and advised of his Miranda rights. After invoking his right to remain
silent, the arresting officer placed him in a detention cell. Approximately two hours later, another
officer came to interview the defendant about an unrelated homicide. He gave the suspect another
set of Miranda warnings, and during the course of the subsequent interrogation, Mosley made
incriminating statements. In reviewing the case in light of Miranda, the Court concluded that
Mosley’s invocation of his right to remain silent had been “scrupulously honored” because “[1] the
police . . . immediately ceased the interrogation, [2] resumed questioning only after the passage of
a significant period of time, and [a] the provision of a fresh set of warnings, and [b] restricted the
second interrogation to a crime that had not been a subject of the earlier interrogation.” Mosley, 423
U.S. at 106 (emphasis added). The Court noted that Miranda cannot “sensibly be read to create a
per se proscription of indefinite duration upon any further questioning by any police officer on any
subject, once the person in custody has indicated a desire to remain silent” because such a reading
could impermissibly create “a blanket prohibition against the taking of voluntary statements or a
permanent immunity from further interrogation.” Id. at 102-03 (emphasis added). The decisive fact
allowing new interrogation in Mosley was the fact that the accused was questioned about an entirely
different crime. That crucial fact justifying the new interrogation is not present in Davie’s case. He
was repeatedly questioned about the same crime.
       In Mosley the Court explained that its mandate that “interrogation must cease” after a suspect
invokes his right to remain silent does not always permanently prevent the police form resuming
questioning. However, neither does the phrase mean — as occurred in this case — that questioning
can resume after a short “time out” or that police may try again (and again) to get the suspect to talk
to them or make a statement about the same criminal event. Mosley, 423 U.S. at 102. To allow
questioning on the same subject to resume after only a brief period would “clearly frustrate the
purpose of Miranda by allowing repeated rounds of questioning to undermine the will of the person
being questioned.” Id.
 IV. The “Presumption Against Waiver” of the Fifth Amendment Right to Silence and the
                         Sixth Amendment Right to Counsel
        The Supreme Court has set a high standard of proof for the waiver of constitutional rights,
a standard requiring that courts should “‘indulge every reasonable presumption against waiver’ of
fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). “The courts must
presume that a defendant did not waive his rights; the prosecution’s burden is great” to demonstrate
a valid waiver, North Carolina v. Butler, 441 U.S. 369, 373 (1979), and “[d]oubts must be resolved
in favor of protecting the constitutional claim.” Michigan v. Jackson, 475 U.S. 625, 633 (1986).
Where “the interrogation continues without the presence of an attorney and a statement is taken, a
heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently
No. 03-4293                Davie v. Mitchell                                                  Page 31


waived his privilege against self-incrimination and his right to retained or appointed counsel.”
Miranda, 384 U.S. at 475.
        Miranda holds that the defendant may waive the rights conveyed in the warnings “provided
the waiver is made voluntarily, knowingly and intelligently.” 384 U.S. at 475. The inquiry has two
distinct dimensions:
       First, the relinquishment of the right must have been voluntary in the sense that it
       was the product of a free and deliberate choice rather than intimidation, coercion, or
       deception. Second, the waiver must have been made with a full awareness of both
       the nature of the right being abandoned and the consequences of the decision to
       abandon it. Only if the “totality of the circumstances surrounding the interrogation”
       reveal both an uncoerced choice and the level of comprehension may a court properly
       conclude that the Miranda rights have been waived.
Moran v. Burbine, 475 U.S. 412, 421 (1986) (emphasis added); see also North Carolina v. Butler,
441 U.S. 369, 374-375 (1979). Merely asking the accused whether he understands his rights does
not satisfy the duties of an interrogating officer or make admissible any statement of the accused.
Miranda requires the interrogating officer to go further and make sure that the accused, knowing his
rights, voluntarily relinquishes them. See United States v. Porter, 764 F.2d 1, 7 (1st Cir. 1985).
        If the custodial suspect’s right to remain silent has not been “scrupulously honored”
throughout the custody, there generally cannot be any subsequent finding of waiver. See, e.g.,
United States v. Barone, 968 F.2d 1378 (1st Cir. 1992) (holding that under “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 [all of] the required procedures”) (emphasis
added); Vujosevic v. Rafferty, 844 F.2d 1023, 1028-31 (3d Cir. 1988) (holding that under Mosley,
the government failed to demonstrate a valid waiver when police did not “scrupulously honor” the
suspect’s invocation of his right to remain silent by reinterrogating him about the same crime).
        Interpreting Miranda, the Supreme Court said in Smith v. Illinois, 469 U.S. 91, 98 (1984) (a
case in which the accused told his police interrogator that he did not want to talk or waive his right
to a lawyer): “an accused’s post-request responses to further interrogation may not be used to cast
retrospective doubt on the clarity of the initial request itself.” This principle has been followed in
many cases. A suspect’s claim that the police violated his right to silence by continuing to question
him is not negated by the fact that the suspect answered additional questions after the police failed
to “scrupulously honor” his request to cease questioning him. Police may not use “post-request”
responses “to cast retrospective doubt on the clarity” of the initial request. See, e.g., United States
v. Tyler, 164 F.3d 150, 154-55 (3d Cir. 1988) (the police command to Tyler to “tell the truth” after
Tyler invoked his right to remain silent is the “antithesis” of scrupulously honoring his right to
remain silent); United States v. Ramirez, 79 F.3d 298, 304-05 (2d Cir. 1996) (stating that “once a
suspect has unequivocally invoked his right to remain silent whether in the form of refusing to
answer questions or asking that an ongoing interrogation be terminated, his request must be
scrupulously honored”) (internal citations omitted). Therefore, the fact that Davie may have
continued to answer questions after verbally expressing his wish not to make a statement does not
constitute a waiver. This is as it should be; otherwise police could disregard a defendant’s
invocation of his rights in the hope that subsequent interrogation would “cast retrospective doubt”
on the invocation of the right. See Judge Nelson’s clear opinion for the court in McGraw v. Holland,
257 F.3d 513, 518-19 (6th Cir. 2001) (post-request responses after invocation of right to silence may
not be used by the State as a waiver of rights because the continued questioning violates the
requirement that the “exercise of the right be scrupulously honored”). See also LeFave, Israel &
King, Criminal Procedure § 6.9(g).
No. 03-4293                Davie v. Mitchell                                                  Page 32


        Such interrogation is prohibited where the suspect has clearly and unambiguously invoked
his right to silence, as Davie had done numerous times in the previous several hours. “Although the
context and nuances of a request to end questioning can create ambiguity, they cannot overcome a
clear expression of the desire to remain silent.” United States v. Rambo, 365 F.3d 906, 910 (10th
Cir. 2004). There is no nuance or ambiguity that could vary the unequivocal meaning of Davie’s
refusal to sign the waiver and his repeated words to the police that morning: “no statement.” The
only meaning that can be attributed to those words is that Davie wished to exercise his right to
remain silent.
        In this case, the State and the majority contend that Davie’s right to remain silent was
“scrupulously honored” because (1) the investigator temporarily ceased questioning him about the
case each time he asserted his Fifth Amendment right, and (2) then allowed a short time to pass
before any reinterrogation, and (3) then gave him fresh sets of Miranda warnings before any
reinterrogation. Specifically, they argue that the requirements of Mosley were met because when
defendant indicated that he did not want to make a statement at the 9:59 A.M. interview, police
ceased interrogation. They claim that Davie waived his right to remain silent during the 12:15 P.M.
and 2:00 P.M. encounters when he answered their questions after he refused to waive his rights by
signing the form.
        This claim is mistaken because it assumes that the police may continue interrogation within
a couple of hours after the accused had expressly refused to waive his rights at the 9:59 A.M.
interview when Davie unequivocally refused to make a statement:
       Blevins:        [D]o you wish to make a statement yes or no.
       Davie:          No statement.
       Blevins:        You wish not to make a statement.
       Davie:          Right.
The 12:15 P.M. interview then began with Detective Sines of the new interrogation team saying to
Davie, “I’m Detective Sines and Detective Vingle and we will advise you of your rights, we want
to talk to you a little bit. If you have something to tell us, we’ll listen to you. If you have nothing
to tell us then we’ll go from there okay.” Vingle says, “Okay Rod before we ask you any questions
you might understand your rights. Do you understand that right.” Although it is not clear what
“right” Vingle is inquiring about, Davie answers “Yes.” Vingle then read the Miranda warning and
the waiver portion of the form aloud to Davie. Davie indicated verbally both times that he
understood his rights. The officers did not in any way inform Davie that if he did not want to talk
the interview would cease. Instead they improperly said “If you have nothing to tell us then we’ll
go from there okay” — meaning as it turned out that if you do not waive your rights, we will
question you anyway.
        At the 12:15 interview, Davie again refused to sign the proffered waiver form: “Well I’m
not signing the waiver of rights. I didn’t sign it earlier.” This reply told the officers that Davie
thought that the refusal to sign the waiver form was all he had to do to protect himself from self-
incrimination. The new detectives again tried to get him to sign the waiver form after asking a few
general questions unrelated to the crime. The persistent pressure put upon Davie to sign the waiver
form reinforced his belief that his rights were protected as long as he did not sign the waiver. He
knew the detectives had tried time after time to get him to sign it. His refusal to sign meant that he
had not waived his rights. The rambling 12:15 P.M. interrogation ends with Davie saying he doesn’t
“remember” anything about what he did that morning, despite repeated attempts by the police to get
him to talk about it. For the fourth time within less than four hours, Davie had refused to confess.
        It is perfectly clear that the 2:00 P.M. encounter was not a request by Davie to reinitiate the
interrogation. Therefore, the majority err when they simply concluded that any statements made by
No. 03-4293                Davie v. Mitchell                                                   Page 33


Davie after “reinitiating” contact with the police are admissible. The mere act of asking a police
officer a question does not constitute a waiver of a previously invoked right to remain silent.
        Contrary to the majority’s characterization of the 2:00 P.M. interrogation as “initiated” by
Davie and therefore not worthy of further analysis, it seems obvious that once Davie invoked his
Fifth Amendment right to remain silent, the police were obligated to scrupulously honor the right
he invoked whenever they interacted with him. That means that police should not have resumed any
interrogation of Davie, either directly or indirectly, by any means without obtaining an unequivocal
waiver from Davie. See Rhode Island v. Innis, 446 U.S. 291 (1980). Vingle’s indirect means of
resuming the questioning by turning Davie’s question back to him was just the sort of improper
contact that Mosley seeks to prevent.
        Consistent with all the previous encounters, Davie again refused to sign the waiver form
when the police asked him again for the waiver at 2:00 P.M. There is no basis for concluding that
by asking Officer Vingle a question that Davie intended to waive his right to remain silent and his
right to counsel or that he wanted to confess. The question that Davie asked did not override his
earlier unequivocal statements concerning his desire not to make a statement and his deliberate
refusal to sign the waiver portion of the form on all of the occasions in which he came in contact
with the police.
         The First Circuit has stated that the correct course of action would be for the police officer
(if he plans to continue to interrogate) to inform the accused that the refusal to sign the waiver does
not mean that his statements cannot be used against him. United States v. Van Dusen, 431 F.2d
1278, 1280 (1st Cir. 1970). The court explained:
       in the delicate area of advising one of his rights, where testimony is often conflicting,
       the act of refusing to sign a waiver is concrete and indisputable. When such an act
       occurs, followed by a willingness to talk, this is a signal of some quirk of reasoning
       which may simply be a dislike of affixing a signature to any document but which
       may be more. It may indicate a serious misunderstanding on the part of the accused.
       In such a succession of events, we wish to make it clear to the courts and prosecutors
       in this circuit that the burden of persuasion resting on the prosecution measurably
       increases.
Id. (emphasis added). Investigating officers should clearly inform the accused that his failure to sign
the waiver does not prevent statements he makes from being used against him.
        Likewise, in United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984), Heldt stated that he
understood his rights but did not wish to waive them. He refused to sign the waiver form and told
police he did not wish to answer questions. The officer told him he did not need to sign the waiver
form but asked him if he would be willing to answer questions anyway. The questioning continued
for three hours. Heldt later moved to suppress the admissions he had given to police. Like the First
Circuit in Van Dusen, the Ninth Circuit noted that it is the government’s burden to prove that a
knowing, intelligent and voluntary waiver was given. The government failed to do so because the
prisoner’s refusal to sign the waiver form cast “doubt” on any claim that he waived his Miranda
rights. The Ninth Circuit suppressed the confession, holding that the government must clearly prove
a “knowing and intelligent” waiver when the police continued questioning after a refusal to sign.
        As in Heldt, Davie’s case requires suppression because the police persisted not only after a
refusal to sign, but also because they persisted even after Davie expressly invoked his right to
silence by refusing to talk.
     I, therefore, dissent from the effort by my colleagues to bury Miranda under a mountain of
AEDPA rhetoric. Until the Supreme Court overrules Miranda, we should follow it, no matter how
No. 03-4293             Davie v. Mitchell                                          Page 34


much we prefer to side with the police against the liberties created by the Fifth and Sixth
Amendments.
