                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0963n.06
                                                                                             FILED
                                             No. 10-2573
                                                                                        Aug 31, 2012
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


T.J. TREMBLE,                                      )
                                                   )
       Petitioner-Appellee,                        )
                                                   )   ON APPEAL FROM THE UNITED
v.                                                 )   STATES DISTRICT COURT FOR THE
                                                   )   EASTERN DISTRICT OF MICHIGAN
SHERRY BURT,                                       )
                                                   )
       Respondent-Appellant.                       )


Before: CLAY and GIBBONS, Circuit Judges; KORMAN, District Judge.*

       JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellee T.J. Tremble was convicted

of two counts of first-degree felony murder in the state of Michigan. He filed a pro se petition for

federal habeas relief in which he claimed that his confession to the murders was improperly admitted

at trial, that the trial court erred in refusing to change venue, that the prosecution withheld key

documents, and that he was denied the effective assistance of trial and appellate counsel. The district

court conditionally granted a writ of habeas corpus on each of Tremble’s claims except for the

improper venue claim. For the reasons that follow, we reverse the judgment of the district court and

deny Tremble’s petition for habeas relief.




       *
      The Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.
No. 10-2573, Tremble v. Burt


                                                 I.

                                                A.

       In his habeas petition, Tremble maintains that his confession, in which he admitted to killing

Peter and Ruth Stanley, was improperly admitted at trial. Prior to trial, a Walker1 hearing was held

on Tremble’s motion to suppress this statement, where the following facts were introduced.

       Deputy Sheriff Shon Chmielewski arrested Tremble around 2:00 a.m. on April 19, 1997, after

Chmielewski found Tremble standing next to a vehicle located in a ditch on the side of the road.

Tremble, who was fourteen years old at the time, admitted that he had stolen the vehicle and that he

had been drinking. Chmielewski transported Tremble to the local sheriff’s department and jail,

where a Breathalyzer blood alcohol test was administered.          Before administering the test,

Chmielewski read Tremble his Miranda rights. Tremble indicated that he was willing to speak with

the deputy and answered Chmielewski’s questions about the stolen car. At the time, Chmielewski

was unaware that the Stanleys, who were the owners of the stolen car, had been killed, and he did

not ask Tremble any questions on that subject. The Breathalyzer test was administered at 3:13 a.m.,

and it indicated that Tremble had a blood alcohol level of .05.

       While he was receiving the test results from the Breathalyzer, another officer told

Chmielewski that the Stanleys had been killed. Chmielewski then called Sheriff James Mosciski,

who arrived at the sheriff’s department a short while later. Mosciski found Tremble in the booking

room around 3:45 a.m. and asked him to repeat what he had said to Deputy Chmielewski about the



       1
           People v. Walker, 132 N.W.2d 87 (Mich. 1965).

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No. 10-2573, Tremble v. Burt


stolen car. Tremble did so. When Mosciski asked Tremble if he had anything further to say,

Tremble replied “no.” Mosciski then indicated that he would be in his office if Tremble wanted to

speak with him, but around twenty to thirty minutes later—without any prompting from

Tremble—Mosciski returned to the booking room and again asked Tremble generally if he had

anything that he wanted to say. Tremble again replied “no.”

       Mosciski called Tremble’s parents around 5:30 a.m., and they arrived at the sheriff’s

department around 7:30 in the morning. Officers advised the parents of their own Miranda rights,

informed them that Tremble had been found with the Stanleys’ stolen car and that the Stanleys had

been found deceased in their residence, and told them that they would be able to see their son after

the officers questioned him. Although he did not remember making this statement, several witnesses

testified that Tremble’s father, James Tremble, told the officers to tell his son that he should “come

clean.” Tremble’s parents also testified that they requested “counsel” for their son and that this

request was denied.

       Around 8:30 a.m., Tremble was escorted to the sheriff’s office, where Sheriff Mosciski read

Tremble his Miranda rights again, concluding with the question, “having these rights in mind, do

you wish to talk with me now?” Tremble answered “yes,” he was willing to speak and signed the

Miranda card. Mosciski then relayed the message from Tremble’s parents, stating that they wanted

him to come clean. Four officers proceeded to question Tremble. During this interrogation, Tremble

confessed to killing Peter and Ruth Stanley, stating that he shot them with a .22 rifle while in their

bedroom. Chmielewski testified that Tremble was awake and alert during this questioning, and was

not slurring his speech. Mosciski likewise testified that during this questioning Tremble was alert,

                                                  3
No. 10-2573, Tremble v. Burt


that his speech was not slurred, and that he understood and was able to provide detailed answers to

the questions asked. There is no indication in the Walker hearing transcript that Tremble requested

an attorney at any point prior to his confession.

       Further testimony established that Tremble had been sitting in a padded chair with his hands

handcuffed behind his back for approximately four to five hours before he was questioned in the

sheriff’s office. While this was unusual, Lieutenant Patricia Skarbek testified that Tremble was

handcuffed in this position because there was a belief that he could have evidence on his hands and

the officers wanted to prevent him from wiping or washing his hands before the forensic lab arrived.

Tremble did complain that his handcuffs were too tight when Mosciski first spoke to him in the

booking room—Mosciski subsequently loosened them—but the record does not show that Tremble

otherwise indicated that he was uncomfortable in this position. Tremble also refused breakfast when

it was offered to him around 7:30 a.m.

                                                    B.

       The trial court denied Tremble’s motion to suppress his confession, and at the conclusion of

his trial, a jury convicted Tremble on two counts of first-degree felony murder, one count of

possession of a firearm during the commission of a felony, and one count of unlawfully driving away

an automobile. Tremble was sentenced to life imprisonment without the possibility of parole for the

first-degree murder convictions. People v. Tremble, No. 208854, 2000 WL 33534678 (Mich. Ct.

App. Feb. 1, 2000) (per curiam).

       Tremble filed a direct appeal to the Michigan Court of Appeals, which affirmed his

convictions on February 1, 2000. Id. On appeal, Tremble argued, inter alia, that the trial court erred

                                                    4
No. 10-2573, Tremble v. Burt


in denying his motion to suppress his confession because it was not voluntary. Id. at *1. Concluding

that the trial court did not err in determining that the confession was voluntary, the appellate court

considered the totality of the circumstances and found:

               Here, defendant was given the Miranda warnings twice prior to his
       confession. He indicated that he understood his rights and he waived those rights.
       After reading defendant his Miranda rights, Sheriff Mosciski asked defendant if he
       wanted to “talk now” and defendant said “[y]es.” As indicated above, because
       defendant was charged as an adult, the police were not required to comply with the
       requirements of MCL 764.27; MSA 28.886. Although neither defendant’s parents
       nor an attorney were present during the questioning, defendant, after being advised
       of his rights, did not request the presence of his parents or an attorney. While
       defendant was only fourteen-and-a-half years old and only had an eighth grade
       education, there is nothing in the record to indicate that he could not read and write
       or could not understand the serious nature of the charges against him. In fact, a
       juvenile corrections officer explained to defendant, prior to his confession, that the
       charges against him were very serious. Moreover, there is nothing in the record to
       indicate that defendant was intellectually challenged.

              Defendant was not detained for a lengthy period of time before he made his
       statement. He was brought into the jail at approximately 3:00 a.m. Defendant went
       through the booking procedure and submitted to a breathalyzer test. Evidence
       technicians from the State Police Post collected evidence from defendant at
       approximately 6:45 a.m. Defendant’s parents appeared at the jail at 7:30 a.m. and
       consented to allow the police to talk to defendant. Defendant gave his statement at
       8:30 a.m. We do not believe that defendant’s five-and-a-half hour detention prior to
       his confession was unreasonable under the circumstances.

                Furthermore, defendant does not claim, and there is no indication in the
       record, that he was subjected to repeated or prolonged questioning in this case. There
       is no indication that defendant was injured or sick when he confessed to killing the
       victims in this case. Additionally, although defendant had two alcoholic beverages
       approximately eight hours prior to the confession and a blood alcohol level of .05 at
       3:15 a.m., there is no indication that he was intoxicated at 8:30 a.m. when he
       confessed to the murders. Moreover, although defendant had not slept or eaten for
       at least nine hours prior to the questioning, there was no evidence that he was not
       alert at the time of questioning. In fact, Sheriff Mosciski testified that defendant
       appeared to be alert and awake during questioning. Defendant, who had eaten a
       sandwich at 11:30 p.m. the previous day, declined the breakfast that was offered . .

                                                  5
No. 10-2573, Tremble v. Burt


        . at 7:30 a.m. at the jail. Therefore, he was not deprived of food prior to the
        confession. Although defendant was handcuffed for a number of hours, those
        handcuffs were loosened upon defendant’s request. There is nothing in the record
        to indicate that defendant was mistreated in any way by the police.

Id. at *2–3. The Michigan Supreme Court denied leave to appeal on December 4, 2001. People v.

Tremble, No. 116377, 638 N.W.2d 749 (Mich. 2001) (table).

        Tremble then filed a pro se motion for relief from judgment in the Arenac County Circuit

Court. He claimed that (1) the prosecutor withheld key documents in violation of discovery rules,

(2) the trial court erred in admitting his confession and evidence obtained as a result of an illegal

search, (3) he was denied effective assistance of trial counsel when counsel failed to seek

suppression of his statement on the proper grounds, failed to suppress the fruits of an illegal search,

and conceded defendant’s guilt during closing argument, and (4) he was denied the effective

assistance of appellate counsel. Tremble attached a document titled “Warning” (hereinafter

“Warning Form”) to his brief in support of his post-conviction motion. Following a notice of his

Miranda rights, the Warning Form indicates that Tremble requested an attorney. The form also

contains an illegible signature of the “Officer” who read the notice and Tremble’s signature,

acknowledging that he received a copy of the form and that it was read to him. The Warning Form

is dated April 19, 1997, and is marked with a time of “4:05.” The form does not indicate whether

this time was 4:05 a.m. (prior to Tremble’s confession) or 4:05 p.m. (after Tremble’s confession).

Finally, the Warning Form is stamped with the date it was filed with the state trial court, July 28,

1997.




                                                  6
No. 10-2573, Tremble v. Burt


       Tremble implied in his pro se brief that he signed the Warning Form requesting an attorney

before his confession made around 8:30 a.m.2 The trial court denied Tremble’s motion for relief

from judgment on December 18, 2003, and his subsequent appeals were denied by the Michigan

Court of Appeals and the Michigan Supreme Court.

                                                 C.

       Tremble filed his pro se petition for federal habeas relief on September 7, 2006, alleging that

(1) his confession was improperly admitted, (2) the trial court erred in refusing to change venue, (3)

he was denied due process and a fair trial when the prosecutor withheld the Warning Form, (4) he

was denied the effective assistance of trial counsel when defense counsel failed to seek the

suppression of his confession on the basis that it was taken in violation of his Fifth, Sixth, and

Fourteenth Amendment rights, and (5) he was denied effective assistance of appellate counsel on his

direct appeal. Tremble attached a copy of the Warning Form to his habeas petition as well. In its

response, the State asserted that Tremble was procedurally barred from raising any arguments related

to the Warning Form because they were not raised on direct appeal. The State did not directly

challenge the factual accuracy of Tremble’s allegation that the form was signed at 4:05 a.m., but it

did suggest that it would have been “pointless” for appellate counsel to argue that the confession

should have been suppressed. The State, however, did not include any additional evidence

establishing when the form was signed in its response.




       2
        Tremble does not explicitly state when he signed the Warning Form in his brief, but the clear
implication from his arguments is that he claimed to have signed the form at 4:05 a.m.

                                                  7
No. 10-2573, Tremble v. Burt


       On September 28, 2009, the district court mistakenly entered an opinion and order denying

relief as to all of Tremble’s habeas claims. The opinion was “an internal draft that the Court was

still working on” that was entered through an inadvertent error, and the court vacated this order after

the error was brought to its attention.

       On September 1, 2010, the district court conditionally granted the writ of habeas corpus.

The district court first held that Tremble’s confession was improperly admitted. It found that

Tremble had twice invoked his right to remain silent and cut off questioning and that the state

appellate court made an unreasonable factual determination by “ignoring the Sheriff’s unlawful

conduct in persisting in questioning” Tremble after he had invoked this right. It also found that the

confession was involuntary under Edwards v. Arizona, 451 U.S. 477, 484–85 (1981), after

concluding that Tremble had signed the Warning Form, “clearly indicat[ing] that he desired the

assistance of counsel,” prior to his confession. The district court further found that the confession

was involuntary under the totality of the circumstances and that the state appellate court’s ruling to

the contrary was unreasonable. The district court also granted relief based upon its ruling that the

prosecution committed misconduct by not disclosing the Warning Form earlier in the trial

proceedings and by not preventing or correcting police testimony at the Walker hearing that Tremble

never asked for counsel. Finally, the district court held that trial and appellate counsel were

ineffective for failing to present the Warning Form when seeking the suppression of Tremble’s

statement and granted relief on this basis as well.

       The State filed a motion for reconsideration of this decision on September 14, 2010. It

argued that the district court had mistakenly concluded that the Warning Form had been signed at

                                                  8
No. 10-2573, Tremble v. Burt


4:05 a.m. and that the document had actually been furnished to Tremble at his arraignment in the

afternoon of April 19, 1997, after he had confessed to the murders. In support of this argument, the

State attached a copy of the transcript from Tremble’s arraignment in which the magistrate read

Tremble his rights as they appeared on the Warning Form and discussed the signing of a form.

During this exchange, Tremble first said “no” when asked by the magistrate “[d]o you want an

attorney?” But due to the serious nature of the charges against him, the magistrate decided to

appoint an attorney for Tremble despite this refusal. The State also attached an affidavit from Kelly

Meschke of the Arenac County Clerk’s Office, who attested that the form in question was routinely

used in the state’s 81st District Court during felony arraignments and that she witnessed Tremble’s

receipt of the Warning Form at his arraignment and his signing of the document.

       The district court denied the motion for reconsideration on November 17, 2010, holding that

the State’s argument regarding the Warning Form was barred because it had failed to challenge

Tremble’s factual allegations concerning when the form was signed before the court ruled on the

habeas petition. The district court further ruled that even if it accepted the State’s argument and

disregarded the Warning Form, Tremble’s confession was still inadmissible under a totality of the

circumstances analysis. The State now appeals the district court’s rulings conditionally granting

Tremble’s habeas petition.

                                                 II.

       We review a district court’s grant of a habeas petition brought pursuant to 28 U.S.C. § 2254

de novo, but the district court’s factual findings are reviewed for clear error. Montgomery v. Bobby,

654 F.3d 668, 676 (6th Cir. 2011) (en banc). Because Tremble filed his habeas petition on

                                                 9
No. 10-2573, Tremble v. Burt


September 7, 2006, the substantive and procedural standards set forth in AEDPA, which became

effective on April 24, 1996, govern our review. See Williams v. Bagley, 380 F.3d 932, 941 (6th Cir.

2004). Under AEDPA, federal habeas review of state court proceedings is limited. See, e.g., Lowe

v. Swanson, 663 F.3d 258, 260–61 (6th Cir. 2011). If a state court has adjudicated a claim on the

merits, an application for a writ of habeas corpus shall not be granted unless the adjudication of the

claim:

         (1) resulted in a decision that was contrary to, or involved an unreasonable
         application of, clearly established Federal law, as determined by the Supreme Court
         of the United States; or

         (2) resulted in a decision that was based on an unreasonable determination of the
         facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254 (d)(1)–(2).

         Under the “contrary to” clause, a state-court decision is contrary to the Supreme Court’s

“clearly established precedent if the state court applies a rule that contradicts the governing law set

forth in [Supreme Court] cases” or if the “state court confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a different result

from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). Under the

“unreasonable application” clause we may “grant the writ if the state court identifies the correct

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

to the facts of the prisoner’s case.” Id. at 413. Pursuant to the limitations imposed by AEDPA, we

may grant a petitioner relief under the “unreasonable application” clause only if the state court’s

application of federal law is “objectively unreasonable.” Id. at 409. Our grant of habeas relief is


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No. 10-2573, Tremble v. Burt


precluded “so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)). The standards set forth in § 2254(d)(1) are “‘difficult to meet,’ because the

purpose of AEDPA is to ensure that federal habeas relief functions as a ‘guard against extreme

malfunctions in the state criminal justice systems,’ and not as a means of error correction.” Greene

v. Fisher, 132 S. Ct. 38, 43 (2011) (quoting Richter, 131 S. Ct. at 786).

       The habeas petitioner bears the burden of rebutting, by clear and convincing evidence, the

presumption that the state court’s factual findings are correct. 28 U.S.C. § 2254(e)(1). Under

§ 2254(d)(2), we will not overturn “a decision adjudicated on the merits in a state court and based

on a factual determination” unless it is “objectively unreasonable in light of the evidence presented

in the state-court proceeding.” McKinney v. Ludwick, 649 F.3d 484, 488 (6th Cir. 2011) (quoting

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).

                                                 III.

       Tremble argues in his petition that his confession was improperly admitted at trial. Miranda

v. Arizona established that an accused individual has both a right to counsel during a custodial

interrogation and the right to remain silent and that an accused must be advised of those rights prior

to custodial interrogation. 384 U.S. 436 (1966). A waiver of the rights to remain silent and to

counsel may be express or implied. See Franklin v. Bradshaw, 545 F.3d 409, 414 (6th Cir. 2008)

(citing North Carolina v. Butler, 441 U.S. 369, 375–76 (1979)). However, the waiver must be

“made voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. The waiver inquiry

proceeds as follows:

                                                 11
No. 10-2573, Tremble v. Burt


       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 requisite level of comprehension may a court
       properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421 (1986). There is no formalistic waiver procedure applicable

to the waiver of Miranda rights, instead “the law can presume that an individual who, with a full

understanding of his or her rights, acts in a manner inconsistent with their exercise has made a

deliberate choice to relinquish the protection those rights afford.” Berghuis v. Thompkins, 130 S.

Ct. 2250, 2262 (2010). Thus, “[w]here the prosecution shows that a Miranda warning was given and

that it was understood by the accused, an accused’s uncoerced statement establishes an implied

waiver of the right to remain silent.” Id.

       It is not disputed that when he was questioned in the sheriff’s office immediately prior to

giving his confession, Tremble was advised of his Miranda rights and he did not invoke his right to

remain silent or his right to counsel at that time. The question is whether Tremble waived these

rights knowingly and voluntarily. After considering the totality of the circumstances, the state court

of appeals concluded that Tremble had understood his rights and waived them voluntarily. This

ruling was not an objectively unreasonable application of federal law nor was it based on an

objectively unreasonable factual determination in light of the evidence presented.

       First, Tremble relies on the Warning Form, indicating that he requested counsel, to argue that

he had invoked his right to counsel before he made his statement confessing to the murders.

Although the right to counsel may be waived, see Butler, 441 U.S. at 372–76, an individual who has

                                                 12
No. 10-2573, Tremble v. Burt


invoked his right to have counsel present during a custodial interrogation does not waive his right

to counsel by simply responding “to further police-initiated custodial interrogation even if he has

been advised of his rights.” Edwards v. Arizona, 451 U.S. 477, 484 (1981). Once an individual

unambiguously requests counsel, the police must cease questioning. Davis v. United States, 512

U.S. 452, 459 (1994). If an individual has invoked his right to have counsel present during an

interrogation, he “is not subject to further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates further communication, exchanges, or

conversations with the police.” Edwards, 451 U.S. at 484–85.

       If we could consider the Warning Form and credit his allegation that he signed the Warning

Form at 4:05 a.m., Tremble could indeed establish that he unambiguously requested counsel prior

to the police questioning that led to his confession and that his right under Edwards to be free from

such questioning until he was provided counsel had been violated. Under Cullen v. Pinholster,

however, the scope of our review as a federal court sitting in habeas is limited to the record before

the state court. 131 S. Ct. 1388, 1399 (2011). The Warning Form was not introduced into evidence

during the Walker hearing or during trial. It was not part of the appellate record when the Michigan

Court of Appeals considered Tremble’s direct appeal. Accordingly, we may not consider the

Warning Form when deciding the question here—whether the state appellate court’s determination

that Tremble did not request an attorney was “objectively unreasonable in light of the evidence

presented in the state-court proceeding.” McKinney, 649 F.3d at 488 (quoting Miller-El, 537 U.S.

at 340). Because the state court record contains no evidence that Tremble requested counsel at any




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No. 10-2573, Tremble v. Burt


point prior to his confession, this finding was not objectively unreasonable, and Tremble is unable

to establish an Edwards violation.3

       Tremble also argues that he twice invoked his right to remain silent prior to the questioning

in the sheriff’s office. He bases this argument on the fact that when Sheriff Mosciski spoke with

Tremble in the booking room around 3:45 a.m. and again around twenty minutes later, each

conversation was concluded by Mosciski asking if Tremble had anything further to say. Each time

Tremble replied “no.” The state appellate court did not address these incidents in its opinion.

       After receiving a Miranda warning, “if the individual indicates in any manner, at any time

prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”

Miranda, 384 U.S. at 473–74. An individual, however, must invoke his right to remain silent

unambiguously. Thompkins, 130 S. Ct. at 2260 (holding that individual who did not say that “he

wanted to remain silent or that he did not want to talk with the police,” failed to invoke his right to

cut off police questioning). Tremble was speaking to Mosciski immediately before Mosciski asked

him if he had anything further to say—first, describing how he stole the Stanleys’ car and second,

complaining that his handcuffs were too tight. His response to Mosciski’s general inquiries was not

necessarily an unambiguous assertion of his constitutional right to remain silent and cut off further



       3
         The fact that Tremble’s parents requested counsel for their son is not relevant under Moran,
which stated that it is an “elemental and established proposition that the privilege against compulsory
self-incrimination is . . . a personal one that can only be invoked by the individual whose testimony
is being compelled.” 475 U.S. at 433 n.4. The Court further held that “[e]vents occurring outside
of the presence of the suspect and entirely unknown to him”—such as Tremble’s parents’ request
for counsel—“surely can have no bearing on the capacity to comprehend and knowingly relinquish
a constitutional right.” Id. at 422.

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No. 10-2573, Tremble v. Burt


questioning; rather, in context, it could simply have meant that, at that moment, he had nothing

further to say. Although a court could reasonably find that Tremble had invoked his right to remain

silent based on these exchanges, the state appellate court did not act in an objectively unreasonable

manner when it failed to make such a finding.

       Moreover, even if Tremble had invoked his right to remain silent, the admissibility of

statements obtained after an individual has invoked his right to remain silent depends on whether

the police “scrupulously honored” the “right to cut off questioning.” Michigan v. Mosley, 423 U.S.

96, 104 (1975). Thus, as long as the police “scrupulously honor” the invocation of the right, there

is no permanent bar to the resumption of questioning after the invocation of the right to silence, and

a suspect may be approached again later to seek a waiver. See id. at 104–05.

       In Mosley, investigators scrupulously honored a suspect’s right to cut off questioning when,

around two hours after the suspect first invoked his right to remain silent, a different police officer

re-administered the Miranda warnings and questioned the suspect about a separate crime. Id. Here,

around four-and-a-half hours following his purported invocations of his right to silence, Tremble was

re-read his Miranda rights and was specifically questioned—albeit by the same officer with whom

he had cut off questioning earlier—about the murder of the Stanleys for the first time. Although not

identical, the circumstances of this case are similar enough to those in Mosley for a court to

reasonably conclude that this was not a case of the police “persisting in repeated efforts to wear

down [a suspect’s] resistance and make him change his mind” about remaining silent. Id. at 105–06.

The state appellate court did not act unreasonably when it failed to address this incident in its

opinion, as the later questioning did not render Tremble’s confession inadmissable.

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No. 10-2573, Tremble v. Burt


       Finally, the remaining circumstances surrounding Tremble’s arrest, detention, and confession

are susceptible to a number of different, reasonable characterizations and consequent weighing in

a totality of the circumstances analysis. The record contains facts that point towards a finding that

Tremble’s waiver of his Miranda rights was knowing and voluntary and facts that point towards the

opposite conclusion. For example, Tremble drank two alcoholic beverages earlier that night and had

a blood alcohol level of .05 at 3:13 a.m., but Tremble made his statement confessing to the murders

over five hours later at 8:30 a.m. When he was questioned, witnesses described him as alert and able

to understand the questions posed to him. Further, Tremble was only fourteen years old when he

made his statement, but he had had some prior experience with law enforcement because he had a

prior juvenile offense, and—as the state court of appeals noted—there is nothing in the record to

indicate that he was intellectually challenged, that he could not read and write, or that he could not

understand the serious nature of the charges against him. Also, in response to their requests to see

their son, Tremble’s parents were told that they would have to wait until after he was questioned.

Tremble, however, never asked to speak with his parents, and his father asked the police to pass

along the message that he should “come clean.”

       Tremble was also handcuffed with his arms behind his back for several hours prior to his

confession. The district court speculated that this likely was uncomfortable and could have

contributed to a more coercive atmosphere. But the record also indicates that Tremble was seated

in a padded chair and that he did not complain of any discomfort—except for one occasion when he

said his handcuffs were too tight, and they were subsequently loosened. Tremble had not eaten

anything since the prior evening, but he also refused the breakfast that was offered. Similarly,

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No. 10-2573, Tremble v. Burt


Tremble had not slept that night, but according to the witnesses at the Walker hearing, he did not

appear tired or ever request to sleep.

       The answer to the question of whether Tremble knowingly and voluntarily waived his

Miranda rights ultimately depends on which set of competing facts a court chooses to give greater

weight. Although the district court apparently would have emphasized different aspects of the record

and found that the confession was not voluntary, the state appellate court, in finding the opposite,

did not reach an objectively unreasonable conclusion. See Wood v. Allen, 130 S. Ct. 841, 849 (2010)

(“[A] state-court factual determination is not unreasonable merely because the federal habeas court

would have reached a different conclusion in the first instance.”); Williams, 529 U.S. at 411 (“[A]

federal habeas court may not issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established federal law erroneously

or incorrectly.”). In other words, the result reached by the state appellate court—finding that

Tremble understood and voluntarily waived his rights—was within the spectrum of reasonable

alternatives among which “fairminded jurists could disagree.” See Richter, 131 S. Ct. at 786.

Accordingly, under our deferential standard of review, Tremble is not entitled to habeas relief on

his claim that his confession was improperly admitted.4




       4
        Because we hold that the state courts committed no constitutional error in admitting
Tremble’s statement, we need not conduct a harmless error analysis. Nevertheless, we observe that
the evidence of the defendant’s guilt, independent of the confession, is substantial and compelling.

                                                17
No. 10-2573, Tremble v. Burt


                                                  IV.

        The remaining grounds on which Tremble was granted habeas relief—his prosecutorial

misconduct claim and his ineffective assistance of trial and appellate counsel claims—depend upon

his allegation that the Warning Form, on which he clearly requests an attorney, was signed prior to

his confession made around 8:30 a.m.

        Initially, we note that no evidence in the state court record supports a finding as to whether

the Warning Form was signed at 4:05 a.m. or 4:05 p.m. or as to the circumstances of the signing.

The form itself is facially ambiguous. It is dated April 19, 1997, and simply marked with a time of

“4:05.” The form does not indicate whether this time was prior to Tremble’s confession at 4:05 a.m.

or after Tremble’s confession at 4:05 p.m. Although Tremble asserts that the Warning Form was

signed at 4:05 a.m., this is simply an allegation made in his pro se briefing in support of his motion

for reconsideration before the state courts and made again in his pro se petition for habeas relief.5

Tremble’s allegation cannot be afforded evidentiary status, and the district court erred in treating the

allegation as true.6


        5
        Since securing representation by counsel, Tremble has not submitted any sworn affidavits
or any other evidence to support his allegations that the form was signed prior to his confession.
        6
         The only evidence about the signing of the Warning Form is included in the district court
record and was belatedly submitted by the State in support of its motion for reconsideration. This
evidence strongly suggests that Tremble signed the Warning Form at 4:05 p.m. at his afternoon
arraignment. We do not fault the district court for refusing to consider this evidence. It was in fact
belatedly submitted. But its submission does highlight the problematic reasoning used by the district
court in treating Tremble’s allegation as true and drawing an unsupported inference from the face
of the document about the time of signing. We note also that the State’s negligence in the district
court is somewhat mitigated by the context. The district court was not conducting an evidentiary
hearing, so presentation of proof about the time of signing was not appropriate. And the State had

                                                  18
No. 10-2573, Tremble v. Burt


       Moreover, Tremble cannot establish that he is entitled to habeas relief on his remaining

claims. First, Tremble claims that the prosecution improperly withheld the Warning Form in

violation of Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Supreme Court held that

“suppression by the prosecution of evidence favorable to an accused upon request violates due

process where the evidence is material either to guilt or to punishment, irrespective of the good faith

or bad faith of the prosecution.” Id. at 87. Tremble cannot establish a true Brady violation, however,

because he cannot establish that the prosecution withheld the Warning Form. See Strickler v. Green,

527 U.S. 263, 281–82 (1999) (holding that one of the necessary components of a Brady violation is

the State’s suppression of the evidence at issue). The stamp on the Warning Form indicates that it

was filed with the Arenac County court on July 28, 1997, which was over a month-and-a-half before

the Walker hearing—held on September 18, 1997—on Tremble’s motion to suppress his statement.

There was no Brady violation because the State did not withhold the document.

       The district court, however, found that Tremble had raised a broader prosecutorial

misconduct claim under Berger v. United States, 295 U.S. 78, 88 (1935) (stating that prosecutors

have a “duty to refrain from improper methods calculated to produce a wrongful conviction”); see

also Napue v. Illinois, 360 U.S. 264, 269 (1959) (“[A] State may not knowingly use false evidence,

including false testimony, to obtain a tainted conviction.”). Relying on Tremble’s allegations

regarding the Warning Form, the district court concluded that the prosecutor misrepresented the facts




no notice that the court would in effect make a factual finding based on an allegation. But the State
was hardly diligent in allowing Tremble’s allegation to go unchallenged. This choice created a
situation in which the district court’s error more easily occurred.

                                                  19
No. 10-2573, Tremble v. Burt


when it permitted police officers to testify at the Walker hearing and argued in its brief that Tremble

never requested counsel prior to his statement to the police. As discussed above however, the

Warning Form itself is facially ambiguous, and Tremble’s assertion that he signed the form prior to

his confession has no evidentiary value and cannot be taken as true. When his allegations regarding

the Warning Form are properly disregarded, Tremble cannot show that the prosecution

misrepresented any facts or solicited false testimony. The prosecution did not commit misconduct

by taking a position that was not inconsistent with this ambiguous document. Therefore, Tremble

is not entitled to habeas relief on this broader prosecutorial misconduct claim either.

       Finally, Tremble claims that he received ineffective assistance of trial counsel when his

attorney failed to use the Warning Form, allegedly indicating Tremble’s prior invocation of the right

to counsel, to seek the suppression of his statement. He also claims that he received ineffective

assistance of appellate counsel when his attorney failed to raise this issue in his direct appeal. In

order to establish ineffective assistance of counsel, a petitioner must show that his “counsel’s

performance was deficient” because it “fell below an objective standard of reasonableness” and that

he was prejudiced due to counsel’s ineffective assistance. Strickland v. Washington, 466 U.S. 668,

687–88 (1984). Defense counsel’s strategic choices are granted a “high level of deference” under

the “‘presumption that, under the circumstances, the challenged action might be considered sound

trial strategy.’” Davis v. Lafler, 658 F.3d 525, 538 (6th Cir. 2011) (en banc) (quoting Strickland, 466

U.S. at 689).

       Tremble bears the burden of establishing that his counsel’s performance was deficient,

McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012), and he has failed to present

                                                  20
No. 10-2573, Tremble v. Burt


sufficient evidence to meet this burden. Again, the Warning Form does not indicate what time of

day it was administered, and thus it does not by itself establish that Tremble’s counsel was deficient.7

It is only when the form is coupled with Tremble’s allegation that it was signed at 4:05 a.m. that the

document has any relevance. Tremble never sought an evidentiary hearing to establish the

circumstances surrounding the signing of the form,8 nor has he ever submitted an affidavit supporting

his claim. He simply attempted to transform argument into evidence. Unfortunately, the district

court fell prey to this strategy and mistakenly relied upon Tremble’s allegation to find that Tremble

was entitled to relief on these ineffective assistance claims.

        Tremble has not established that it was objectively unreasonable for his counsel to have failed

to use the Warning Form at the suppression hearing or on appeal. Because Tremble has failed to

establish that the performance of his trial or appellate counsel was deficient, he is not entitled to

habeas relief on his ineffective assistance of counsel claims.

                                                  V.

        For the reasons provided above, we reverse the judgment of the district court and deny

Tremble’s petition for habeas relief.


        7
        Given the evidence submitted belatedly by the State—indicating that the Warning Form was
signed at his arraignment at 4:05 p.m. after Tremble’s confession—it appears likely that it would
have been a pointless exercise for either trial or appellate counsel to have introduced the Warning
Form. See Ludwig v. United States, 162 F.3d 456, 459 (6th Cir. 1998) (holding that counsel is not
required to raise meritless arguments to avoid a charge of ineffective assistance of counsel).
        8
         Nor does he seek an evidentiary hearing under 28 U.S.C. § 2254(e)(2) on appeal. In any
event, he cannot meet the criteria for obtaining an evidentiary hearing since the Warning Form was
a matter of public record as of July 28, 1997, and Tremble was aware of it from the time of its
signing.

                                                  21
