                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 17a0159p.06

                 UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 CLARENCE D. SCHREANE,                                 ┐
                               Petitioner-Appellant,   │
                                                       │
                                                        >      No. 15-6141
       v.                                              │
                                                       │
                                                       │
 DAVID EBBERT, Warden,                                 │
                              Respondent-Appellee.     │
                                                       ┘

                       Appeal from the United States District Court
                  for the Eastern District of Tennessee at Chattanooga.
                 No. 1:13-cv-00190—Harry S. Mattice Jr., District Judge.

                                   Argued: June 21, 2017

                             Decided and Filed: July 20, 2017

                 Before: SILER, CLAY, and McKEAGUE, Circuit Judges.
                                 _________________

                                        COUNSEL

ARGUED: Zenaida R. Lockard, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,
Ohio, for Appellant. Michael M. Stahl, UNITED STATES ATTORNEY’S OFFICE, Nashville,
Tennessee, for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S
OFFICE, Cincinnati, Ohio, for Appellant. Michael M. Stahl, UNITED STATES ATTORNEY’S
OFFICE, Nashville, Tennessee, for Appellee.
        SILER, J., delivered the opinion of the court in which CLAY and McKEAGUE, JJ.,
joined. CLAY, J. (pp. 11–12), delivered a separate concurring opinion.
 No. 15-6141                            Schreane v. Ebbert                               Page 2


                                       _________________

                                            OPINION
                                       _________________

       SILER, Circuit Judge. Clarence D. Schreane seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Specifically, Schreane argues that the police violated his Fifth Amendment
rights when they denied his request for an attorney while being questioned at the police station.
In the alternative, Schreane argues that the police officers’ promises of leniency also made his
confession involuntary. Due to the proper deference afforded to the state court, we affirm the
district court’s denial of Schreane’s writ of habeas corpus.

                           FACTUAL AND PROCEDURAL BACKGROUND

       The following factual background is taken from the Tennessee Court of Criminal
Appeals’ (“TCCA”) opinion on direct appeal of Schreane’s conviction:

       This case relates to the defendant’s participation in the killing of Marcus Edwards
       on September 19, 1991. The Chattanooga Police Department investigated the
       murder; however, the case went cold and remained unsolved for eight years. In
       1999, the defendant was incarcerated on unrelated charges when he contacted
       Chattanooga Police Department detectives and told them he had information
       related to the unsolved 1991 murder. The detectives had the defendant brought to
       their location to speak with him, and after a period of a few hours, the defendant
       confessed.

       At the trial, the evidence showed that the defendant accompanied Charles Turner
       to the victim’s place of business to help Mr. Turner commit a robbery. As the
       victim was talking to Mr. Turner, the defendant struck the victim with a rock, and
       Mr. Turner then shot the victim with a .38 caliber handgun. Mr. Turner took the
       victim’s .357 magnum handgun, which was on the victim’s body. Mr. Turner
       also took a cigar box containing cash and gave the defendant one hundred dollars
       as both men fled the scene in the defendant’s 1983 Cadillac Eldorado.

       Before the trial, the defendant filed a motion to suppress his confession, arguing
       that it was taken in violation of his Fifth and Fourteenth Amendment rights. At
       the motion to suppress hearing, Chattanooga Police Department Detective Mike
       Mathis testified that he was the lead investigator for the 1991 murder. He said the
       victim was shot to death and found in his business. Detective Mathis said few
       solid leads developed until the defendant contacted them.
No. 15-6141                          Schreane v. Ebbert                                 Page 3


     Detective Mathis said that sometime before September 19, 1999, Chattanooga
     Police Department Lieutenant Steve Angel had been receiving collect telephone
     calls from the Hamilton County Jail, which he was unable to answer. He said that
     the defendant's “significant other” contacted the detectives and told them the
     defendant wanted to talk to them about an unsolved murder. He said the
     defendant also called and spoke with Lt. Angel and told him enough specific
     information about the murder to cause Lt. Angel to have the defendant transported
     from the Hamilton County Jail to the police service center.

     Detective Mathis said he conducted an interview with the defendant, culminating
     in a tape-recorded statement. He said that although the defendant was in custody
     on unrelated charges, he was not under arrest or charged with the victim’s murder
     when he confessed. Detective Mathis said he did not promise the defendant
     anything in return for his confession. Detective Mathis said the defendant waived
     his constitutional right to remain silent and to an attorney before making the tape-
     recorded statement.

     On cross-examination, Det. Mathis said he talked with the defendant for some
     period of time before reading him his Miranda rights. He admitted that before he
     arrived to interview the defendant, Lt. Angel had been talking to the defendant.
     Detective Mathis said that although he did not promise the defendant anything
     specific in return for his confession, he did explain to the defendant that he would
     tell the district attorney general’s office that the defendant had come forward on
     his own and cooperated with the police. Detective Mathis admitted that he may
     have told the defendant he would try to help transport the defendant from the
     Hamilton County Jail to Silverdale, a state correctional facility.

     On redirect examination, Det. Mathis said the defendant initiated the contact with
     the police department. Detective Mathis explained that the reason for the delay in
     reading the defendant his Miranda rights was the defendant initially maintained
     that he had only heard about the murder, not that he had any involvement in it.
     He said the defendant ultimately “came clean” and confessed.

     The defendant testified that when he first arrived at the police service center, he
     was placed in an interview room with Det. Carroll and Det. Mathis. He said Lt.
     Angel entered the room later. The defendant said Det. Mathis told him he
     believed “the bicycle bandit” was responsible for the victim’s murder. The
     defendant said that he then asked to speak with his attorney but that Det. Mathis
     told him he did not need an attorney. The defendant said Det. Mathis made
     promises to him before the taping began. He said Det. Mathis promised him that
     the defendant would not be charged with the murder, that Det. Mathis would
     speak with the defendant’s parole officer in another case, and that Det. Mathis
     would speak with the district attorney general’s office in order to have them
     dismiss certain charges against the defendant from another case in return for the
     defendant’s cooperation. He said Det. Mathis also promised to transfer him from
 No. 15-6141                              Schreane v. Ebbert                                   Page 4


         the Hamilton County Jail to Silverdale. The defendant said he was transferred to
         Silverdale two days later. The defendant said he did not sign the waiver form
         until after the taped statement was made.

State v. Schreane, No. E2005-00520-CCA-R3CD, 2006 WL 891394, at *1–2 (Tenn. Crim. App.
Apr. 5, 2006), perm. app. denied (Aug. 28, 2006).

         A jury convicted Schreane of first degree felony murder and aggravated robbery, for
which he received consecutive sentences of life imprisonment and sixty years of incarceration,
respectively. Id. at *1. Schreane’s convictions were affirmed on direct appeal by the TCCA, and
the Tennessee Supreme Court (“TSC”) denied permission to appeal. Id.

         The trial court denied Schreane’s petition for post-conviction relief, the TCCA affirmed
this denial, and the TSC denied permission to appeal. Schreane v. State, No. E2009-01103-
CCA-R3-PC, 2010 WL 3919264 (Tenn. Crim. App. Oct. 7, 2010), perm app. denied (Jan. 18,
2011).

         After post-conviction relief was denied, Schreane filed a petition for writ of error coram
nobis, which the trial court denied. The TCCA affirmed this denial, and the TSC denied
permission to appeal. Schreane v. State, No. E2012-01202-CCA-R3-PC, 2013 WL 173193
(Tenn. Crim. App. Jan. 16, 2013), perm. app. denied (May 7, 2013), petition to rehear denied
(June 4, 2013).

         Schreane then filed a motion to reopen his post-conviction proceedings, which the trial
court alternatively construed as another petition for a writ of error coram nobis. The trial court
denied this motion, the TCCA affirmed the denial, and the TSC denied permission to appeal.
Schreane v. State, No. E2012-00954-CCA-R3-CO, 2013 WL 5516430 (Tenn. Crim. App. Oct. 2,
2013), perm. app. denied (Oct. 2, 2013). Schreane also filed a motion to dismiss his indictment
in the trial court, which the trial court construed as a petition for state habeas relief. This petition
was denied, and the TCCA affirmed on appeal. Schreane v. State, No. E2013-1161-CCA-R3-
HC, 2013 WL 62295227 (Tenn. Crim. App. Dec. 2, 2013).

         Schreane then filed two petitions for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The district court denied Schreane’s requests for relief but granted a certificate of
 No. 15-6141                            Schreane v. Ebbert                                 Page 5


appealability (“COA”) on one issue: whether Schreane’s confession should have been excluded
from trial due to the denial of his request for counsel and the length of time he was questioned
before police informed him of his Miranda rights. We denied Schreane’s request to expand this
COA and limited this appeal to that single issue.

                   STANDARD OF REVIEW AND LEGAL STANDARD

       We review de novo a district court’s decision to deny a writ of habeas corpus. Mendoza
v. Berghuis, 544 F.3d 650, 652 (6th Cir. 2008). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), codified in 28 U.S.C. § 2254, a court considering a habeas claim must
defer to any decision by a state court concerning the claim, unless the state court’s judgment:
(1) resulted in a decision that was contrary to clearly established federal law as determined by the
United States Supreme Court; (2) involved unreasonable application of clearly established
federal law as determined by the United States Supreme Court; or (3) was based on an
unreasonable determination of the facts in light of the evidence presented in the state court.
28 U.S.C. § 2254(d)(1), (2).

       In Williams v. Taylor, the Court explained that this analysis involves a two-part inquiry:
first, whether the state court correctly identified the governing legal rule; and second, whether
the state court applied that rule in an objectively reasonable way to the facts of the prisoner’s
case. 529 U.S. 362, 404 (2000).

                                          DISCUSSION

I.     Fifth Amendment Right to Counsel/Miranda

       Schreane argues that “once he requested counsel, officers should have ended their
interrogation of him.” According to Schreane, “this failure rendered his subsequent confession
inadmissible.” Appellant Br. 10. Specifically, Schreane argues that Miranda “require[s] police
officers to cease questioning a suspect who unequivocally invokes his right to counsel [and]
[p]olice cannot use statements made after the suspect requests counsel if those subsequent
statements are the result of further police-initiated interrogation.”       McKinney v. Hoffner,
830 F.3d 363, 370 (6th Cir. 2016).
 No. 15-6141                            Schreane v. Ebbert                                  Page 6


       In response, the State argues that because Schreane was not “in custody” for Miranda
purposes, the police officers were not required to provide an attorney. See United States v.
Malcolm, 435 F. App’x 417, 420 (6th Cir. 2011) (finding that a suspect who mentioned speaking
to counsel was not “in custody” for Miranda purposes and was therefore not entitled to counsel
under Miranda); see also Edwards v. Arizona, 451 U.S. 477, 485–86 (1981) (holding that there is
no infringement of the right to counsel absent custodial interrogation).

   a. Correct Legal Rule

       As the Court explained in Williams, the threshold inquiry is whether the state court
correctly identified the governing legal rule. The Fifth Amendment guarantees that an individual
has the right not to be “compelled in any criminal case to be a witness against himself.”
U.S. CONST. amend. V. The “clearly established” federal law applicable to petitioner’s claim is
set out in Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Court held that a suspect
must be informed of his Fifth Amendment right against self-incrimination, among other rights,
prior to custodial interrogation by police.       Id. at 444.    To determine whether custodial
interrogation exists, the Court defined the term as “questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his freedom of action
in any significant way.” Id. However, the Court has clarified that questioning initiated by the
accused is not interrogation for Miranda purposes. Edwards, 451 U.S. at 484.

       In this case, the state court correctly identified the legal rule by stating that “the record
does not reflect that [Schreane] was under custodial interrogation before the police read him the
Miranda warnings and obtained his waiver of rights.” Schreane, 2010 WL 3919264, at *9.

   b. Objectively Reasonable Adjudication

       After ensuring that the correct legal rule was used, we turn to whether the state court’s
adjudication of the claim was objectively reasonable.           In Williams, the Supreme Court
distinguished between an “incorrect or erroneous application” of federal law and an
“unreasonable application” of federal law. 529 U.S. at 410. The focus of the review, according
to the Supreme Court, is not whether the federal court would find a constitutional violation if
presented with a factual scenario identical to that in the state court, but the reasonableness of the
 No. 15-6141                                   Schreane v. Ebbert                                          Page 7


state court’s decision in light of the evidence before it. Cullen v. Pinholster, 563 U.S. 170, 184–
85 (2011).

        In finding that Schreane’s Fifth Amendment rights were not violated, the state court
relied on the fact that Schreane initiated contact with police to find that he was not subjected to
custodial interrogation when he requested an attorney. See State v. Schreane, No- E2005-00520-
CCA-R3CD, 2006 WL 891394, at *4–5 (Apr. 5, 2006) (“The record reflects that the defendant
initiated the questioning in this case by voluntarily seeking out the detectives and speaking to
them concerning the victim's murder. In this regard, we conclude the record does not reflect that
the defendant was under custodial interrogation before the police read him the Miranda warnings
and obtained his waiver of rights. The defendant is not entitled to relief on this issue.”); see also
State v. Schreane, No-E2009-01103-CCA-R3-PC, 2010 WL 3919264 (Oct. 7, 2010) (“The
record reflects that the Petitioner initiated the questioning in this case by voluntarily seeking out
the detectives and speaking to them concerning the victim’s murder. As a result, the Petitioner
was not subject to custodial interrogation when he initiated communication with the
detectives.”).1

        While it is correct that suspect-initiated contact with the police is not custody for
Miranda purposes, see Edwards, 451 U.S. at 484, our analysis should not stop there as a few
issues must be resolved in this case. First, it must be determined whether the state court’s
determination that Schreane initiated the contact with police was an unreasonable determination
of the facts as presented to the state court. In his § 2254 petition, Schreane asserts that he did not
make any calls to police. However, this assertion is in direct contradiction with the evidence in
state court. In testimony to the trial court at both the pretrial suppression hearing and at the post-
conviction hearing, Schreane stated that, although someone else initially contacted the police on
his behalf, he made the call to the police on the day he was taken to the police station for
questioning. Schreane also stated in his memorandum in support of his petition for post-
conviction relief that he initiated contact with police to discuss the murder. Therefore, it was not

        1
           The district court relied on the 2006 state court opinion. There is an argument that the 2010 state court
opinion is “the last reasoned state-court opinion.” Yist v. Nunnemaker, 501 U.S. 797, 804–05 (1991). However,
both opinions rely on the same reasoning and were used interchangeably in the parties’ briefs. Therefore, reliance on
either case does not change the analysis.
 No. 15-6141                             Schreane v. Ebbert                                 Page 8


an unreasonable determination of the facts for the state court to conclude that Schreane originally
initiated the contact with the police prior to questioning.

        Second, the completeness of the state court’s decision must be examined. As the district
court noted, the state court did not analyze whether Schreane’s request to confer with counsel
represented Schreane’s withdrawing his initiation of the discussion. Furthermore, the state court
did not analyze whether Schreane’s request for counsel supports a finding that the police, rather
than Schreane, initiated the discussion about the murder that followed the request for counsel.
With this failure, it might be difficult to find that the state court’s decision was objectively
reasonable under Edwards. See Edwards, 451 U.S. at 484–85 (“We further hold that an accused,
such as Edwards, having expressed his desire to deal with the police only through counsel, is not
subject to further interrogation by the authorities until counsel has been made available to him,
unless the accused initiates further communication, exchanges, or conversations with the
police.”).

        However, we can still deny Schreane’s petition as long as the police-initiated discussion
did not “present a serious danger of coercion” and Schreane felt that he could terminate the
interrogation and leave. Howes v. Fields, 565 U.S. 499, 508–09 (2012). Although Howes was
not “clearly established federal law” at the time of the state court’s opinions, both parties agree
that Howes is instructive in this case. In Howes, the Supreme Court eschewed a bright line rule
of determining whether a defendant, who was incarcerated on an unrelated offense, was “in
custody” when subjected to questioning for another offense, and instead, the Supreme Court
announced factors to consider. The factors include: (1) the location of the questioning; (2) the
duration of the questioning; (3) statements made during the questioning; (4) the presence of
physical restraints; and (5) the release of the inmate after the questioning. Id. at 509.

        Applying these factors to this case, we must defer to the state court’s determination that
Schreane was not in custody for Miranda purposes prior to being Mirandized because such a
determination was not unreasonable. Specifically, three factors weigh in favor of finding that
Schreane was not in custody. First, statements made during the questioning show that Schreane
was not a suspect during the interrogation. The murder had occurred eight years prior and
Schreane had never been questioned. The police officers began the discussion by indicating that
 No. 15-6141                                  Schreane v. Ebbert                                         Page 9


they believed that a “bicycle bandit” had committed the murder. Furthermore, Detective Mathis
testified that officers never browbeat Schreane, but instead were “all ears” during the
discussion.2 Second, the lack of physical restraints also weighs in favor of finding that Schreane
was not in custody. As the district court noted, “there is no indication that Petitioner was
restrained at any point during the questioning.” Third, the release of Schreane after questioning
is also a factor that weighs in favor of finding that he was not in custody. At the conclusion of
the discussion, Schreane was not arrested for his role in the murder, but rather he was released
back to Hamilton County Jail—the same jail in which he had been incarcerated prior to the
questioning. Schreane was not indicted for the murder until approximately three years after the
questioning.

        While these three factors weigh in favor of finding that Schreane was not in custody
during the questioning, at least one factor weighs against such finding: the duration of the
questioning. As the district court noted, the questioning took over four hours before police
informed Schreane of his Miranda rights. However, the fact that at least one factor weighs
against the state court’s ruling is not enough. The deference afforded by ADEPA bars granting
Schreane relief in this case. See Simpson, 651 F. App’x at 355 (“Because some factors suggest
that Simpson was in custody on April 24, and others do not, AEDPA bars us from granting
Simpson relief on this claim.”).

        Therefore, the state court’s ruling was objectively reasonable in finding that Schreane
was not in custody for Miranda purposes. An individual who is not in Miranda custody “has no
constitutional right to counsel.” Malcolm, 435 F. App’x at 420. The police were not required to
provide Schreane an attorney or cease questioning him. Schreane’s confession was properly
admitted at trial.




        2
         Schreane argues in his reply brief that the alleged promises made by police should be considered in the
“statements made during questioning” prong. While in some cases that may be true, any promises made to
Schreane, in this case, provide little insight as to whether he was in custody. For example, police could offer the
same promises to an inmate who is not a suspect in order to solve the crime quickly and efficiently.
 No. 15-6141                            Schreane v. Ebbert                               Page 10


II.    Promise of Leniency

       Schreane also argues that his confession was involuntary because it was a product of a
promise of leniency. Specifically, Schreane argues that the police promised to “tell the district
attorney’s office that Petitioner had cooperated, that they would attempt to secure a transfer for
Petitioner from county jail to Silverdale, and that they would allow Petitioner to see his
girlfriend.” However, that issue is outside the scope of the COA.

       We denied Schreane’s motion to expand his COA. In the order, we “directed . . . a
briefing schedule on the claims for which the district court granted a COA: whether Schreane’s
confession should have been excluded from trial due to the denial of his request for counsel and
the length of time he was questioned before police informed him of his Miranda rights.” The
State is correct in arguing that this issue is outside the scope of the COA; therefore, we will not
decide the issue.

       AFFIRMED.
 No. 15-6141                           Schreane v. Ebbert                                Page 11


                                      _________________

                                       CONCURRENCE
                                      _________________

       CLAY, Circuit Judge, concurring. I concur in Judge Siler’s opinion for the Court.
I write separately to briefly emphasize two unusual facts in this case that compel us to deny
Petitioner Clarence Schreane’s request for a writ of habeas corpus.

       First, Schreane was never a suspect in Marcus Edwards’ murder until he voluntarily
contacted the police through a third party and apparently offered to trade information related to
the Edwards murder for relief on unrelated charges that he was facing. See State v. Schreane,
No. E2005-00520-CCA-R3CD, 2006 WL 891394, at *2 (Tenn. Crim. App. Apr. 5, 2006). The
Edwards case had gone cold for nearly eight years, and Schreane likely would have escaped
detection entirely if he had not brought his involvement in the murder to the police’s attention.
Under these circumstances, as Judge Siler rightly concludes, the Tennessee Court of Criminal
Appeals did not unreasonably determine that Schreane was not “in custody” for Miranda
purposes at the outset of his interview with the police because Schreane initiated the interview.
See Slip. Op. at 7–8; see also Edwards v. Arizona, 451 U.S. 477, 484 (1981) (holding that a
suspect is not in custody for Miranda purposes when he initiates contact with the police).

       Second, Schreane testified before the Tennessee trial court that he asked to speak with an
attorney near the outset of his conversation with the police after Detective Mathis “told him he
believed ‘the bicycle bandit’ was responsible for [Edwards’] murder.” Schreane, 2006 WL
891394, at *2. In other words, Schreane asked to speak with counsel shortly into an interview
that he initiated after the police had told him that they suspected someone else of the crime, and
before Schreane had made any statements inculpating himself. Thus, at the moment Schreane
asked to speak with an attorney, he cannot possibly have been “in custody” for Edwards’ murder
because the police lacked any inkling that Schreane was involved in the crime. This may well
have been a different case if Schreane had renewed his request for counsel after the conversation
had turned to his own involvement in the Edwards murder.
 No. 15-6141                            Schreane v. Ebbert                             Page 12


       In sum, this case presents an unusual fact pattern where the defendant appears to have
been entirely responsible both for: (i) initiating contact with the police; and (ii) causing the
police to suspect him of a crime. The police in this case were very nearly bystanders at the
beginning of the interview, and had their case against Schreane more or less hand-delivered to
them through Schreane’s own bungled attempt at bargaining for relief from other charges. The
Court’s opinion must be understood in this context, and should not be misconstrued as broadly
holding that defendants will rarely or never be “in custody” for Miranda purposes, without
regard to the facts of the matter, when they initiate contact with the police.      With these
observations, I concur in the Court’s opinion.
