                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0732n.06

                                            No. 10-1089
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                              Jul 06, 2012
                                FOR THE SIXTH CIRCUIT
                                                                                LEONARD GREEN, Clerk

ROBERT WILKENS, JR.,                              )
                                                  )
       Petitioner-Appellant,                      )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    EASTERN DISTRICT OF MICHIGAN
BLAINE LAFLER, Warden,                            )
                                                  )
       Respondent-Appellee.                       )



       Before: BOGGS, SUHRHEINRICH, and COOK, Circuit Judges.


       COOK, Circuit Judge. State prisoner Robert Wilkens, Jr., imprisoned for criminal sexual

conduct in the first degree, appeals the denial of his habeas petition. He claims two constitutional

violations: 1) that the presence of uniformed Department of Corrections officers in the courtroom

and discarded shackles left in the jury’s view violated his Sixth Amendment right to a fair trial, and

2) that he received ineffective assistance of counsel because trial counsel failed to move for the

suppression of statements obtained without a Miranda warning. We AFFIRM.


                                           I. Background


       One night, Wilkens drove up to M.C., a street prostitute, and propositioned her for sex. She

entered his truck and he drove her to an empty field. After they undressed, Wilkens held a butcher

knife to M.C.’s throat and threatened to sodomize her if she refused to fellate him. Once M.C.
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complied, Wilkens dropped her off where he found her before, told her he would come back to pay

her, and never returned.


       Sometime later, M.C. reported the incident to Detective Robert Peto of the Ypsilanti Police

Department. While investigating other reports of sexual assault on local prostitutes, Peto noticed

similarities between M.C.’s assault and that of another prostitute, V.H. Both victims independently

identified Wilkens as their assailant, both independently described Wilkens’s truck and license plate,

and both assaults involved a proposition on the street, a ride to a remote lot, and threats to sodomize

while brandishing a knife.


       At trial, M.C. and Peto testified on behalf of the government. Unable to locate V.H. for trial,

the government submitted parts of V.H.’s preliminary-examination transcript as evidence. Wilkens

elected to take the stand as well, presenting a theory that M.C. and V.H. fabricated the assault

allegations to extort money from him. The jury found Wilkens guilty of first-degree criminal sexual

conduct. After unsuccessfully moving for a new trial and exhausting state procedures, Wilkens

petitioned for a writ of habeas corpus in federal district, which was denied. Only a fair-trial claim

and an ineffective-assistance-of-counsel claim remain on appeal.


A.     Facts Involving the Fair-Trial Claim


       Wilkens protests that the trial-courtroom conditions violated his right to an impartial jury

under the Sixth and Fourteenth Amendments. Although he attended his trial unshackled and in plain


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clothes, two guards in Department of Corrections uniforms sat behind him because he was serving

time for other convictions. (The parties dispute how near the guards sat, and the last state court to

comment on the issue simply noted that the guards sat “near defendant.”) His trial counsel objected

to the presence of the guards in Department of Corrections uniforms and suggested that the judge

permit the guards to appear in plainclothes or county uniforms. The court noted the objection but

declined to act.


       While the jury deliberated, trial counsel’s investigator approached the alternate juror, who

remained outside the jury room in a public waiting area. According to trial counsel’s affidavit, the

alternate juror confided to the investigator and the trial counsel that the jurors noticed the

Department of Corrections insignia on the guards near Wilkens, noticed shackles discarded in the

jury box, speculated that Wilkens was in prison, and discussed possible verdicts prior to the close

of proofs. Using this information, trial counsel moved for a new trial, again objecting to the presence

of uniformed guards. The trial court denied the motion.


       On appeal, Wilkens shifted his argument, objecting to the “presence” of “prison guards”

rather than their uniforms. The state appellate court accordingly ruled on whether the prison guards’

“being in the courtroom” denied Wilkens his fair-trial rights, concluding that it did not. The

Michigan Supreme Court denied leave to appeal.


       On habeas review, Wilkens shifts his objection back to the uniforms. Because his defense

turned on pitting his credibility against the credibility of the victims, he claims that any indicia of

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his incarceration inherently prejudiced his case. He also claims that he suffered actual prejudice,

because an alternate juror confirmed that the jurors noticed the prison guards and shackles and

deduced his incarceration from these clues. The government responds that fairminded jurists could

disagree about whether the uniformed guards and shackles sufficiently affected the proceedings to

render the trial unfair.


B.      Facts Involving the Ineffective-Assistance Claim


        Wilkens faults his trial counsel for failing to move to suppress his statements to Detective

Peto regarding his previous encounters with M.C. He claims that such incompetence violated his

Sixth Amendment right to counsel.


        During the investigations leading to Wilkens’s arrest, Peto and another detective visited

Wilkens at his home. Shortly after Wilkens invited them in and consented to a search of his home,

the three of them sat around his kitchen table and began to talk. According to Peto, Wilkens

volunteered, “I know what this is about. It’s a woman. [M.] is her name,” and explained that he had

paid her for sex, driven her to a field, and used her services.


        Wilkens recalls the situation differently. Though he acknowledges that he invited the

detectives in and that he signed a consent search form, he claims that the detectives questioned him

aggressively throughout their kitchen-table conversation and ensuing search, refusing to relent until

he provided the answers they wanted. He purportedly denied any dealings with M.C. or other


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prostitutes.   Because of the allegedly adversarial nature of the questioning—the rapid-fire

accusations and the detectives’ refusal to let him out of their sight or allow him to speak to his

roommate—he argues that the detectives should have advised him of his Miranda rights and that his

counsel should have moved to suppress the statements.


        Having failed on direct appeal, he now raises the same argument on habeas review,

contending that the Michigan Court of Appeals unreasonably applied clearly established federal law

by concluding that the detectives’ questioning and his counsel’s failure to move for suppression did

not violate his constitutional rights.


                      II. Whether the Concurrent-Sentence Doctrine Applies


        Because Wilkens currently serves concurrent sentences for other convictions, the government

requests that we decline review of this case under the concurrent-sentence doctrine. See Dale v.

Haeberlin, 878 F.2d 930, 935 n.3 (6th Cir. 1989) (“According to this doctrine, accepted by this court,

an appellate court may decline to hear a substantive challenge to a conviction when the sentence on

the challenged conviction is being served concurrently with an equal or longer sentence on a valid

conviction.”). We apply this discretionary doctrine only to those situations “where it is clear that

there is no collateral consequence to the defendant and the issue does not otherwise involve a

significant question meriting consideration.” United States v. Hughes, 964 F.2d 536, 541 (6th Cir.

1992). Because the Michigan Parole Board may consider the “number and frequency of prior

criminal convictions” and must consider the “number of prior convictions for sex offenses” in

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determining parole, see Mich. Admin. Code r. 791.7715(2)(a)(ii), 791.7716(3)(b)(v), refusing to

adjudge the constitutionality of Wilkens’s conviction may affect his parole opportunities. We

therefore decline to apply the concurrent-sentence doctrine. Cf. United States v. Vargas, 615 F.2d

952, 959 (2d Cir. 1980) (considering the effect on parole as one potential collateral consequence

counseling against application of the concurrent-sentence doctrine).


                                       III. Fair-Trial Claim


       Wilkens argues that the seating of guards in Department of Corrections uniforms near him

and presence of discarded shackles in the jury box created such a probability of prejudice that his

trial inherently lacked due process, in violation of his Sixth Amendment right to a fair trial by an

impartial jury. He also claims that these conditions actually prejudiced jury deliberations.


A.     Standard of Review


       “Under AEDPA, we may grant habeas petitions for claims that the state court adjudicated

on the merits if that adjudication ‘resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States.’” Foust v. Houk, 655 F.3d 524, 533 (6th Cir. 2011) (quoting 28 U.S.C. §

2254(d)(1)). Wilkens urges us to review Michigan’s adjudication de novo notwithstanding §

2254(d)(1), for two reasons.




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       First, he argues that the Michigan Court of Appeals failed to consider the lack of state

interests justifying the presentation of guards in Department of Corrections uniforms (as opposed

to plainclothes or county uniforms) when evaluating the fair-trial claim. But we cannot fault the

court for ignoring an argument that Wilkens failed to raise on appeal. Though Wilkens objected to

the guards’ uniforms during the trial, he omitted this argument in his state appellate briefs. R. 1-5,

at 39–40 (protesting generally to “presen[ce]” of prison guards, without focusing on choice of

clothing); R. 16-21, at 14 (arguing the same in motion for reconsideration); R. 16-23, at 51 (arguing

the same in brief for motion for remand).


       Second, Wilkens contends that the state appellate court addressed only the state fair-trial

claim on the merits, ignoring the federal fair-trial claim. Because the state requirement of

“affirmative prejudice” differs from the federal standard articulated in Holbrook v. Flynn, 475 U.S.

560, 572 (1986), which looks for actual prejudice or an inherently prejudicial practice, Wilkens

argues that the state court failed to “examine the Holbrook issue” and “focused exclusively on actual

prejudice.”


       Wilkens fails to rebut the presumption that the state court adjudicated the federal claim on

the merits. See Harrington v. Richter, 562 U.S. ___, 131 S. Ct. 770, 785 (2011) (“The presumption

[that a state court adjudicated a claim on the merits before denying relief] may be overcome when

there is reason to think some other explanation for the state court’s decision is more likely.”).

Though the Michigan Court of Appeals cited no federal cases, it expressly identified the claim as a


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federal one, referring to “[t]he Sixth Amendment guarantee of the right to a fair trial” before

addressing whether the discarded shackles and guards prejudiced Wilkens. To the extent that

Wilkens criticizes the state court for failing to examine the possibility of “inherent prejudice,” we

construe this as a critique of the state court’s application of a rule contrary to federal law, rather than

its failure to adjudicate a claim. See Bell v. Cone, 535 U.S. 685, 694 (2002) (“A federal habeas court

may issue the writ under the ‘contrary to’ clause if the state court applies a rule different from the

governing law set forth in our cases . . . .”); accord Fulcher v. Motley, 444 F.3d 791, 806 (6th Cir.

2006) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)) (treating application of a contradictory

rule as triggering the “contrary to” analysis of § 2254(d)(1), rather than the “adjudicated on the

merits” analysis); see also 28 U.S.C. § 2254(d)(1) (acknowledging that claims adjudicated on the

merits may yet result in a decision contrary to clearly established federal law, meriting habeas relief).


        In any case, we discern no conflict between the state appellate court’s reasoning and

Holbrook’s instruction to consider inherent prejudice, and deem Wilkens’s excerpted readings of the

state opinion insufficient to rebut the presumption that the state court adjudicated the claim on the

merits. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (“Avoiding these pitfalls [of reaching

a result “contrary to” clearly established federal law] does not require citation of our cases—indeed,

it does not even require awareness of our cases, so long as neither the reasoning nor the result of the

state-court decision contradicts them.”). For one, though Wilkens faults the state court for citing to

the state standard of “affirmative[] prejudice,” the state court explained that it was applying this

standard to evaluate the “juror misconduct” claim—a claim not presented in this appeal. See R. 16-

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21, at 2 (“To obtain a new trial based on juror misconduct, the defendant must show that the

misconduct ‘affirmatively prejudiced the defendant’s right to a trial before a fair and impartial jury’

[citing a state case].”).


        By contrast, the state court’s analysis of the limited claim before us—regarding the

prejudicial effect of guards and discarded shackles—began by quoting the general federal principle

that “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis

of the evidence introduced at trial, and not on the grounds of official suspicion, indictment,

continued custody, or other circumstances not adduced as proof at trial.” See Taylor v. Kentucky,

436 U.S. 478, 485 (1978). (Indeed, Wilkens’s own analysis in the state appellate briefs ventured no

further, citing Holbrook only for this general principle and conclusorily stating, “Violations are

prejudicial per se,” without distinguishing its inherent-prejudice and actual-prejudice arguments.)

The court then contrasted the practices targeted in Wilkens’s complaints to what Holbrook deemed

a quintessential example of an “inherently prejudicial practice”—presenting a shackled defendant

before a jury—and concluded that no case law supported treating the use of shackles and guards in

Wilkens’s trial in the same fashion. See Holbrook, 475 U.S. at 568–69. Then, the state court

observed that Wilkens “[a]dditionally” failed to show “how he was prejudiced by the shackles being

seen near him”—addressing the lack of actual prejudice. Though that court never mentioned the

terms “Holbrook,” “inherent prejudice,” or “actual prejudice,” the opinion’s analysis suggests that

it applied the correct rule, touching on both types of analysis required under Holbrook. We thus



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conclude that the state court did not “appl[y] a rule different from the governing law set forth in [the

Supreme Court’s] cases,” Cone, 535 U.S. at 694, or fail to adjudicate the federal claim on the merits.


        Because Wilkens fails to show the applicability of de novo review, we now turn to the last

avenue remaining under § 2254(d)(1) for habeas relief on this claim: whether the state decision

involved an unreasonable application of clearly established federal law.


B.      A Fairminded Jurist Could Conclude That Wilkens Received A Fair Trial.


        A state decision involves an unreasonable application of clearly established federal law if

“‘fairminded jurists could disagree that [the arguments or theories that could have supported the state

court’s decision] are inconsistent with the holding in a prior decision of [the Supreme Court].’”

Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 1402 (2011) (quoting Harrington, 131 S. Ct.

at 786). As a fundamental liberty secured by the Fourteenth Amendment, the Sixth Amendment

right to trial by an impartial jury applies to state proceedings. Estelle v. Williams, 425 U.S. 501, 503

(1976). A petitioner may show that a state procedure violated his right to a fair trial either by

identifying an inherently prejudicial practice or by demonstrating actual prejudice. Holbrook, 475

U.S. at 572.


        1.      No Inherent Prejudice


        A procedure “involves such a probability that prejudice will result that it is deemed inherently

lacking in due process” if it presents “an unacceptable risk . . . of impermissible factors coming into

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play.” Id. at 570 (internal quotation marks and citations omitted). The Supreme Court has yet to

address whether placing uniformed prison guards near a defendant during his trial inherently

prejudices him. The closest analogues that the Court recognizes as “inherently prejudicial” involve

“compelling an accused to wear jail clothing,” Williams, 425 U.S. at 504, or “the sight of shackles

and gags” on the accused, Illinois v. Allen, 397 U.S. 337, 344 (1970); Deck v. Missouri, 544 U.S.

622, 626 (2005) (reiterating that shackling, absent special need, inherently prejudices defendant).

But the Court also recognizes that some practices fall short of “inherent prejudice”: the placement

of four uniformed troopers in the first row of spectators, for example, does not brand the defendant

with an “unmistakable mark of guilt.” Holbrook, 475 U.S. at 571 (quoting Williams, 475 U.S. at

518).


        This case falls somewhere between these two poles. On the one hand, Holbrook’s

reassurance that jurors will simply treat these guards as safety officers for the court rather than

“reminders of the defendant’s special status,” id. at 569, no longer applies when the uniforms

identify the guards as prison officers rather than peace officers. On the other hand, the presence of

uniformed prison guards near Wilkens presents a subtler indication of incarceration than shackles

or prison garb on a defendant. See id. at 571 (contrasting shackling and prison clothes, as

“unmistakable indications of the need to separate a defendant from the community at large,” against

the presence of four officers quietly sitting in close proximity to the defendant, a more ambiguous

indication possibly too subtle to notice or open to multiple interpretations). For example, a

fairminded jurist could conclude that most jurors would overlook the detail of the insignia on the

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guard uniforms or infer nothing from them, especially since jurors might not know enough about

courtroom procedures to think that the presence of guards from the Department of Corrections are

atypical in criminal proceedings. (Wilkens’s allegation that the particular jurors in this case did

notice the insignia relates to the “actual prejudice” analysis, rather than the “inherent prejudice”

analysis.) Similarly, the discarding of shackles in the jury box at some point during the trial presents

a smaller risk of becoming a “constant reminder of the accused’s condition” or a “continuing

influence throughout the trial,” see Williams, 425 U.S. at 504–05, than the shackling of a defendant

throughout the trial as a physical restraint.


        Given these differences, fairminded jurists could conclude that the presence of a few guards

near Wilkens with Department of Corrections insignia fails to create an “inherently prejudicial”

circumstance or an “unacceptable risk” of affecting the jury deliberations. Rather than articulating

specific rules for identifying unacceptable risks, the Supreme Court simply entreats judges to use

common sense: Holbrook calls for a case-by-case approach, 475 U.S. at 569, and Williams

emphasizes scrutiny “based on reason, principle, and common human experience,” 425 U.S. at 504.

Absent more specific guidance from the Supreme Court, fairminded jurists could vary widely in

assessing various details and risks, especially since the closest Supreme Court analogues involve

easily distinguishable circumstances. See Renico v. Lett, 559 U.S. ___, 130 S. Ct. 1855, 1864 (2010)

(“[T]he more general the rule at issue—and thus the greater the potential for reasoned disagreement

among fair-minded judges—the more leeway state courts have in reaching outcomes in case-by-case



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determinations.” (internal quotation marks, alterations, and citations omitted)). We thus reject

Wilkens’s inherent-prejudice argument.


        2.      No Actual Prejudice


        Since Wilkens cannot rely on inherent prejudice, he must show actual prejudice. See Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993) (equating the term, “actual prejudice,” to the Kotteakos

standard courts typically use for the harmless-error analysis on collateral review: demonstrating an

error’s “substantial and injurious effect or influence in determining the jury’s verdict” (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946))).


        Wilkens’s sole evidence of actual prejudice consists of an affidavit from trial counsel

paraphrasing hearsay from an alternate juror that, prior to the close of proofs, the jury noticed

shackles left in the jury box, discussed the presence of the Department of Corrections officers, and

speculated that Wilkens was in prison. According to trial counsel’s affidavit, his investigator and

the alternate juror discussed these matters in a public waiting area while the jury deliberated, and trial

counsel himself interviewed the alternate juror after the reading of the verdict. But rather than

present an affidavit of the juror’s statements, counsel provided a general paraphrase only, based on

counsel’s account of the investigator’s report, leaving scant record of what the alternate juror might

have actually said—whether the jurors speculated about the guards in passing and quickly forgot

about them, or whether the indicia of incarceration became a running theme throughout their pre-

proof discussions.

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          Moreover, Wilkens’s brief repeatedly claims that the jury “actually discussed [Wilkens’s

possible imprisonment] in connection with possible verdicts,” but, notably, the trial counsel’s

affidavit fails to assert any “connection” between the jury’s observations about the guards and

shackles and their deliberations on the verdict. And even if the jury noticed the shackles and

recognized the guards as prison staff, an alternate juror who sat outside with counsel’s investigator

during deliberations would have no knowledge of the actual discussion in the jury room or how

prominently the jurors’ earlier observations of the shackles and guards figured into their verdict, if

at all.


          Lacking other evidence, Wilkens urges us to assume prejudice because the trial pivoted on

a credibility contest between Wilkens, on the one hand, and M.C. and Peto, on the other. Because

the trial judge instructed the jury that it could consider M.C.’s criminal history in determining her

credibility, Wilkens contends that the jury probably considered the indicia of his incarceration while

weighing his credibility, as well. But this is speculation. Wilkens also argues that the state court’s

adjudication “resulted in a decision that was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding,” because “the appellate court’s

rejection of actual prejudice is objectively unreasonable.” But in doing so, he merely faults the legal

conclusion that the state appellate court draws from the facts; he points to no erroneous

determination of fact. With nothing more than an affidavit based on hearsay, and no evidence

illuminating what the jury actually discussed in the jury room, a fairminded jurist need not conclude

that the guards and shackles had a “substantial and injurious effect or influence” on the verdict.

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       In the alternative, Wilkens asks for an opportunity to supplement the state record with a

habeas evidentiary hearing under 28 U.S.C. § 2254(e)(2), claiming that he diligently requested an

evidentiary hearing at each stage of the state proceedings but failed to obtain one. The government

correctly notes that Pinholster prohibits this relief. See 131 S. Ct. at 1398 (“We now hold that

review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the

claim on the merits.”). Though Wilkens cites Sheppard v. Bagley, 657 F.3d 338, 343 (6th Cir.

2011), where one post-Pinholster panel considered granting an evidentiary hearing to supplement

its § 2254(d)(1) review, we cannot overturn prior panels recognizing that Pinholster limits §

2254(d)(1) review to the facts before the state courts. See, e.g., Bray v. Andrews, 640 F.3d 731, 737

(6th Cir. 2011) (citing Pinholster, 131 S. Ct. at 1398, 1400); see also Salmi v. Sec’y of Health &

Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (“The prior decision remains controlling authority

unless an inconsistent decision of the United States Supreme Court requires modification of the

decision or this Court sitting en banc overrules the prior decision.”).


                            IV. Ineffective Assistance of Counsel Claim


       Under Strickland v. Washington, a defendant claiming ineffective assistance of counsel must

show that “counsel’s representation fell below an objective standard of reasonableness” and

demonstrate prejudice. 466 U.S. 668, 687–88 (1984). Wilkens argues that his counsel should have

moved to suppress his statements to two detectives regarding his previous encounters with M.C.

because the detectives obtained the statements after placing him in “custody” without a Miranda


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warning. See Miranda v. Arizona, 384 U.S. 436, 478–79 (1966) (holding that police cannot question

an individual under custody before notifying him of the right to remain silent, the right to an

attorney, and the possible legal consequences of speaking). Failing to do so violated his Sixth and

Fourteenth Amendment right to counsel, he contends, because regardless of whether the motion

would have ultimately succeeded, any reasonable counsel would have at least attempted to suppress

the evidence as sufficiently constitutionally suspect. See Combs v. Coyle, 205 F.3d 269, 286 (6th

Cir. 2000) (holding that counsel rendered ineffective assistance by failing to object to a

“constitutionally suspect” use of evidence). The government responds that fairminded jurists could

disagree.


A.     No Deficient Performance


       When combined with AEDPA deference, our review of trial counsel’s performance becomes

“doubly deferential”: we evaluate “whether there is any reasonable argument that counsel satisfied

Strickland’s deferential standard.” Foust, 655 F.3d at 533–34 (internal quotation marks omitted)

(quoting Pinholster, 131 S. Ct. at 1403; Richter, 131 S. Ct. at 788). Wilkens argues that we should

review this prong of the ineffective-assistance claim de novo because the state appellate court failed

to determine Wilkens’s noncustodial status from an objective person’s viewpoint. The language of

the state opinion directly contradicts this assertion. See R. 16-21, at 4 (noting that determination of

custody “does not depend on the subjective view of the . . . defendant” and proceeding from the view

of “a reasonable person in the defendant’s position”). AEDPA deference applies.


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       Although his conversations with the detectives occurred at home, Wilkens maintains that the

objective circumstances of the encounter—the prolonged and accusatory rapid-fire questioning, the

detectives’ insistence that he direct them from room to room, and his inability to speak to his

roommate—transformed his home to a custodial environment, triggering his right to a Miranda

warning. See Stansbury v. California, 511 U.S. 318, 324 (1994) (“[T]he only relevant inquiry [in

determining custody] is how a reasonable man in the suspect’s position would have understood his

situation.” (quoting Berkemer v. McCarty, 468 U.S. 420, 442 (1984))); Orozco v. Texas, 394 U.S.

324, 327 (1969) (deeming a suspect “in custody” when police confined him to his bedroom during

questioning, because Miranda requires warnings whenever police deprive suspect of “his freedom

of action in any significant way” (quoting Miranda, 384 U.S. at 477 (emphasis added in Orozco)

(internal quotation marks omitted))). The Michigan Court of Appeals disagreed, concluding that “[a]

reasonable person in defendant’s position would have felt free to leave.”


       Wilkens exaggerates the favorableness of the state record on habeas appeal, arguing that two

detectives relentlessly interrogated him until he gave them the answers they wanted. The actual

record reveals a more moderate course of events. Two detectives “requested that [he] consent to a

search of [his] home,” and Wilkens consented. After receiving this consent but prior to the search,

Detective Peto sat with Wilkens at his kitchen table and said, “Let’s talk a little bit, you know, try

and relax a little bit.” According to Wilkens, the conversation eventually became “intense,” with

both detectives “throwing questions at [him] one after another” and everyone “talkin’ at the same



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time.” He complains that Peto became confused as a result of the disorganized conversation and

misrecorded his statements in the police report.


        But a fairminded jurist could conclude that counsel acted reasonably in choosing not to move

for suppression, given the weak evidence suggesting that Wilkens was in custody at the time he made

these statements. At best, the record reveals that Wilkens participated in an unpleasant conversation

with the detectives and that, after the fact, he felt dissatisfied with the detectives’ characterization

of his statements. In other words, Wilkens’s testimony throughout criticizes the detectives’

inaccuracy, rather than their coerciveness. Nothing suggests that this tableside conversation, though

antagonistic, was involuntary: Wilkens provides no evidence that the detectives prevented him from

moving elsewhere or from terminating the conversation. The detectives entered the home upon

Wilkens’s consent; the conversation occurred in a casual setting, at Wilkens’s own kitchen table; and

Detective Peto framed the conversation as an occasion to “talk a little bit” and “relax a bit,” though

the conversation eventually progressed to a more “intense” exchange.


        Given the conversation’s mild beginning, a reasonable person would have felt free to stop

the conversation or to excuse himself from the kitchen if he sensed that the conversation had become

too rankling. See Stansbury, 511 U.S. at 322 (“[T]he ultimate inquiry is simply whether there was

a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”

(internal quotation marks, alterations, and citations omitted)). Wilkens’s and Peto’s testimonies both

acknowledge that Peto gleaned the statements at issue during the course of this conversation, prior


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to the detectives’ search of the house. Therefore, the statements that Wilkens now wishes to

suppress occurred in a noncustodial setting, and a fairminded jurist could conclude that Wilkens’s

counsel acted competently in declining to pursue a suppression motion with such a low probability

of success.


       Additionally, Wilkens maintains that “[he] was questioned repeatedly by both detectives”

during the search, as well. But here, too, Wilkens exaggerates the strength of his case. As a

preliminary matter, he fails to identify which of the incriminating statements the detectives obtained

as a result of the mid-search questioning, as opposed to the pre-search kitchen-table conversation.

Furthermore, in characterizing this search as a coercive event in which the detectives “for the most

part [did] not let[] him out of their sight,” he glosses over the consensual backdrop of the search.

Wilkens’s subjective impression that “[he] was not allowed to freely walk around [his] home” is

irrelevant: a reasonable person in defendant’s position would not feel imprisoned by the very search

to which he consented. His elaborations in the affidavit reveal that the detectives merely “would

direct [him] to a room that they intended to search and stay[] with [him] for most of the search.” The

fact that the detectives generally refrained from searching rooms without Wilkens’s presence and

oversight may just as well evince their respect for his ownership of the house, rather than a desire

to confine a suspect. Moreover, Wilkens’s own attestation of the events belies his theory: the fact

that the detectives would stay with him for “most” of the time, rather than all, suggests that Wilkens

left the detectives’ presence from time to time and that nobody stopped him.



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       Finally, Wilkens argues that one of the detectives “blocked” and “prohibited him” from

talking to his roommate, thus “cut[ting] off Wilkens’s only source of moral support” and

exacerbating the custodial nature of the situation. But Wilkens’s affidavit—the sole evidence in the

record regarding these mid-search interactions—merely declares that he attempted to talk to his

roommate at one point during the search, and that one of the detectives “told . . . [him] that he

wanted to talk to her first.” A detective’s request to speak to the roommate first does not amount to

blocking or prohibiting contact, or “cutting off” Wilkens from moral support. Wilkens does not

allege that he tried to contact the roommate later or that the detectives prohibited him from doing

so. Nor does he attempt to connect this fact to the relevant standard: whether a reasonable person

would feel that the detective deprived him of “his freedom of action in any significant way” by

asking to speak to the roommate first. Because a court sitting in habeas must limit its review to the

state record under these circumstances, see Pinholster, 131 S. Ct. at 1398, Wilkens cannot

supplement an inadequate affidavit with exaggerations in the brief.


       Given the dearth of record evidence suggesting custody, a fairminded jurist could conclude

that Wilkens’s counsel acted competently in focusing his efforts elsewhere. See Richter, 131 S. Ct.

at 788 (explaining that Strickland requires a showing of “incompetence under ‘prevailing

professional norms’” (quoting Strickland, 466 U.S. at 690)).




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B.      No Prejudice


        Wilkens fails on the prejudice factor as well. He urges that we review this factor de novo

because the state appellate court decided his ineffective-assistance claim solely on the deficient-

performance prong. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (reviewing prejudice factor of

ineffective-assistance habeas claim de novo because state court pegged its decision solely on

deficient performance); but see Richter, 131 S. Ct. at 784 (requiring habeas petitioners to show “no

reasonable basis for the state court to deny relief” and observing that “[t]his is so whether or not the

state court reveals which of the elements in a multipart claim it found insufficient, for § 2254(d)

applies when a ‘claim,’ not a component of one, has been adjudicated” (emphasis added)). We need

not determine what level of deference to apply, however, because even under the de novo standard

Wilkens fails to demonstrate prejudice.


        “To establish prejudice, a defendant must show a reasonable probability that, ‘but for

counsel’s unprofessional errors, the result of the proceeding would have been different.’” McCalvin

v. Yukins, 444 F.3d 713, 722 (6th Cir. 2006) (citing Strickland, 466 U.S. at 694); Strickland, 466

U.S. at 694 (“A reasonable probability is a probability sufficient to undermine confidence in the

outcome.”). Like the petitioner in McCalvin, Wilkens fails to demonstrate a probability of changed

outcome “sufficient to undermine confidence” because, even if his counsel had filed the motion to

suppress, the trial court would have almost certainly denied it as meritless. Given the already slim




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likelihood that the district court would have suppressed Wilkens’s statements, we need not examine

what prejudice he might have avoided if he had succeeded in a motion to suppress.


                                         V. Conclusion


       We affirm the district court’s denial of Wilkens’s habeas petition.




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