                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                 File Name: 11a0227p.06

              UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                X
                        Petitioner-Appellant, -
 DAVID DENNARD MCKINNEY,
                                                 -
                                                 -
                                                 -
                                                     No. 10-1669
          v.
                                                 ,
                                                  >
                                                 -
                       Respondent-Appellee. -
 NICK LUDWICK,
                                                 -
                                                N
                  Appeal from the United States District Court
               for the Eastern District of Michigan at Ann Arbor.
             No. 08-14834—John Corbett O’Meara, District Judge.
                                Argued: July 22, 2011
                        Decided and Filed: August 19, 2011
           Before: KENNEDY, SILER, and McKEAGUE, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Raymond G. Mullins, Ypsilanti, Michigan, for Appellant. Jon P. Wojtala,
WAYNE COUNTY PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellee.
ON BRIEF: Raymond G. Mullins, Ypsilanti, Michigan, for Appellant. Jon P. Wojtala,
WAYNE COUNTY PROSECUTOR’S OFFICE, Detroit, Michigan, for Appellee.
                                 _________________

                                      OPINION
                                 _________________

       CORNELIA G. KENNEDY, Circuit Judge. Petitioner David Dennard McKinney
is a Michigan prisoner sentenced to life imprisonment on a felony-murder conviction
stemming from his participation in the robbery and arson of a gun shop. He now
petitions for a writ of habeas corpus on the grounds that the admission at trial of
incriminating statements he gave to police violates the rights established by the Supreme



                                           1
No. 10-1669            McKinney v. Ludwick                                                        Page 2


Court in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S.
477 (1981). We AFFIRM the district court’s denial of habeas relief.

                  FACTUAL AND PROCEDURAL BACKGROUND1

         On August 3, 2004, emergency personnel responded to a fire at Alexander’s Gun
Shop in Inkster, Michigan. Several hours passed before firefighters were able to
suppress the fire, which caused large quantities of ammunition kept in the store to
explode and the roof to collapse. Once the police were able to access what remained of
the building, they discovered the body of Clyde Alexander, one of the store’s owners,
with tie-cuffs attached to one of his wrists. An autopsy confirmed that he had died from
smoke inhalation and extensive burns, but it also indicated that he had been beaten
before his death and was possibly unconscious when the fire started. Additionally,
investigators determined that approximately ninety guns were missing from the store and
accelerants had been used to set the fire. The Inkster Police Department and the U.S.
Department of Justice, Bureau of Alcohol, Tobacco, and Firearms (“ATF”)2 began a
joint investigation into the death of Alexander and the suspected robbery and arson of
the gun shop.

         Law enforcement officers received information implicating McKinney in the fire
as early as August 17, 2004, at which time he submitted to a polygraph examination
when briefly in police custody on other charges. At this time, McKinney retained
counsel. On November 20, 2004, McKinney was again arrested on unrelated charges,
and Detective Anthony Delgreco used the opportunity to interrogate McKinney about
his possible involvement in the Alexander’s case. Delgreco read McKinney his rights
under Miranda, obtained his written waiver of those rights, and confronted him with the
evidence against him. Though McKinney initially denied any participation in or
knowledge of the crimes, he eventually said “I planned it.” Immediately thereafter,


         1
         The facts recounted here were either undisputed in the state court proceedings or found to be true
by the Wayne County Circuit Court.
         2
          ATF became involved in the investigation because Alexander’s had been a federally licensed
arms dealer.
No. 10-1669        McKinney v. Ludwick                                              Page 3


McKinney asked for his lawyer and Delgreco stopped the interrogation. While escorting
McKinney back to his cell, Delgreco informed him that the Alexander’s case might be
prosecuted by the federal government and, in that event, McKinney could face the death
penalty for his role in the crimes.

       Around 7:15AM the following morning, November 21, 2004, Delgreco entered
McKinney’s cellblock to perform a routine head count of the prisoners. McKinney
called out to Delgreco and said, according to Delgreco, that “he wanted to talk to me and
the ATF agent to see what the Feds had against him and how the case was going to
proceed.” Delgreco reminded McKinney that they could not speak due to McKinney’s
prior request for his attorney, but McKinney persisted and agreed to talk without his
lawyer. In the presence of Delgreco and ATF Agent Ray Tomaszewski, McKinney
signed a letter stating “I, David Dennard McKinney, saw Detective Delgreco in the cell
block and asked Detective Delgreco if I could hear what the ATF agent had to say about
the case. Detective Delgreco contacted the ATF agent and then read me my Miranda
rights.” Delgreco also re-read McKinney the Miranda warnings and McKinney signed
another waiver. McKinney then gave a written statement and affidavit admitting that he
had both planned the robbery and served as a lookout during it. However, he insisted
that starting the fire and killing Alexander had not been part of his plan and, in fact, he
had not learned of these events until he later saw them on the news.

       On August 24, 2005, a jury in Wayne County Circuit Court found McKinney
guilty of felony murder, Mich. Comp. Laws § 750.316(1)(b), and accessory after the fact
to arson, id. § 750.505, for his role in the robbery, fire, and homicide at Alexander’s Gun
Shop. The only evidence presented at trial to link McKinney to those crimes was his
written confessions of November 21, 2004. On September 7, 2005, the circuit court
sentenced him to a mandatory term of life imprisonment for the felony murder
conviction and a concurrent term of two-to-five years on the accessory conviction.

       Before trial, the circuit court had denied McKinney’s motion to suppress his
November 21, 2004 statements as products of an unlawful interrogation. McKinney
renewed this objection in a post-judgment motion for a new trial, and the circuit court
No. 10-1669         McKinney v. Ludwick                                               Page 4


declined to overturn its previous ruling. On McKinney’s direct appeal of his conviction
and sentence, the Michigan Court of Appeals concluded that the circuit court had not
erred by allowing McKinney’s statements into evidence. People v. McKinney, No.
269823, 2007 WL 2807961 (Mich. Ct. App. Sept. 27, 2007). The Michigan Supreme
Court denied McKinney leave to appeal. People v. McKinney, 750 N.W.2d 590 (Mich.
2008).

         On November 18, 2008, McKinney filed a habeas corpus petition in the United
States District Court for the Eastern District of Michigan under 28 U.S.C. § 2254, again
arguing that admission of his November 21, 2004 statements at trial violated his
constitutional rights. The district court denied his petition, holding that the state court
had not unreasonably applied clearly established federal law in determining that
McKinney’s Fifth Amendment rights had not been violated. McKinney v. Ludwick, No.
08-14834, 2010 WL 1753106 (E.D. Mich. Apr. 29, 2010). The district court issued a
certificate of appealability, and McKinney timely appealed.

                               STANDARD OF REVIEW

         In a habeas case, this court reviews the district court’s legal conclusions de novo
and its factual determinations for clear error. Lovell v. Duffey, 629 F.3d 587, 593-94 (6th
Cir. 2011), petition for cert. filed, No. 10-10543 (May 16, 2011).              Under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”):

         An application for a writ of habeas corpus on behalf of a person in
         custody pursuant to the judgment of a State court shall not be granted
         with respect to any claim that was adjudicated on the merits in State
         court proceedings 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.
No. 10-1669         McKinney v. Ludwick                                              Page 5


28 U.S.C. § 2254(d). AEDPA thus imposes a “‘highly deferential standard for
evaluating state-court rulings,’ which demands that state-court decisions be given the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation omitted)
(quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

         A state-court decision is “contrary to . . . clearly established Federal law,”
28 U.S.C. § 2254(d)(1), “if the state court arrives at a conclusion opposite to that reached
by [the Supreme Court] on a question of law or if the state court decides a case
differently than [the Supreme Court] has on a set of materially indistinguishable facts,”
Williams v. Taylor, 529 U.S. 362, 413 (2000). A state-court decision is “an unreasonable
application of[] clearly established Federal law,” 28 U.S.C. § 2254(d)(1), if it “correctly
identifies the governing legal rule but applies it unreasonably to the facts of a particular
prisoner’s case,” Williams, 529 U.S. at 407-08. That is, “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,” id. at 411; rather, that application must be “objectively unreasonable,” id.
at 409. “‘[C]learly established Federal law’ under § 2254(d)(1) is the governing legal
principle or principles set forth by the Supreme Court at the time the state court renders
its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). “However, the court may
look to lower courts of appeals’ decisions to the extent they illuminate the analysis of
Supreme Court holdings in determining whether a legal principle had been clearly
established by the Supreme Court.” Goodwin v. Johnson, 632 F.3d 301, 308 (6th Cir.
2011).

         The habeas petitioner has 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), “a decision adjudicated on the merits in a state court
and based on a factual determination will not be overturned on factual grounds unless
objectively unreasonable in light of the evidence presented in the state-court
proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
No. 10-1669         McKinney v. Ludwick                                             Page 6


                                      ANALYSIS

        On appeal, McKinney challenges the district court’s ruling that he is not entitled
to habeas relief based on his claim that the Michigan courts unreasonably applied clearly
established federal law in admitting his November 21, 2004 statements at trial. In
essence, he argues that the government’s use of these statements violates the procedural
protections designed by the Supreme Court to safeguard his Fifth and Fourteenth
Amendment right against self-incrimination from the “inherently compelling pressures”
of custodial interrogation. See Miranda, 384 U.S. at 467. Specifically, he claims that,
after he invoked his right to counsel during the November 20, 2004 custodial interview,
Delgreco impermissibly continued to interrogate him by commenting that he might face
the death penalty for his involvement in the fire at Alexander’s. He argues that, under
the Supreme Court’s decision in Edwards, this interrogation renders invalid his apparent
waiver of his right to counsel the following morning, and therefore his confessions were
inadmissible at trial.

        In its watershed decision in Miranda, the Supreme Court held that, prior to
questioning, police must warn an individual “that he has a right to remain silent, that any
statement he does make may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed.” Id. at 444. After being
informed of these rights, the individual may nevertheless choose to speak with police.
In that case, any of his subsequent statements may be used as evidence against him,
provided the government can demonstrate that he “waived his privilege against
self-incrimination and his right to retained or appointed counsel . . . [under the] high
standards of proof [set] for the waiver of constitutional rights.” Id. at 475 (citing
Johnson v. Zerbst, 304 U.S. 458 (1938)). This requires proof that the individual
relinquished his rights voluntarily—as a “product of a free and deliberate choice rather
than intimidation, coercion, or deception”—and knowingly—“with a full awareness of
both the nature of the right being abandoned and the consequences of the decision to
abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).
No. 10-1669         McKinney v. Ludwick                                              Page 7


        However, if an individual wishes to assert either the right to remain silent or the
right to the presence of counsel, Miranda requires the police to scrupulously honor this
decision. “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. And, “[i]f the individual states that he wants an attorney, the
interrogation must cease until an attorney is present.” Id. at 474. The “interrogation”
precluded by an individual’s invocation of his rights under Miranda includes not only
express questioning by police, but also “any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island
v. Innis, 446 U.S. 291, 301 (1980) (footnote omitted).

        In Edwards, the Supreme Court strengthened the protection available to an
individual who invokes his right to have counsel present during a custodial interrogation
by holding that “a valid waiver of that right cannot be established by showing only that
he responded to further police-initiated custodial interrogation even if he has been
advised of his rights.” 451 U.S. at 484. Instead, “an accused . . . 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
himself initiates further communication, exchanges, or conversations with the police.”
Id. at 484-85; see also Minnick v. Mississippi, 498 U.S. 146, 150-53 (1990). In other
words, after an individual asks for counsel during interrogation, the government cannot
demonstrate a valid waiver of this right absent the “necessary fact that the accused, not
the police, reopened the dialogue with the authorities,” Edwards, 451 U.S. at 486 n.9,
by “evinc[ing] a willingness and a desire for a generalized discussion about the
investigation,” Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (plurality opinion);
accord id. at 1055 (Marshall, J., dissenting) (“[I]n order to constitute ‘initiation’ under
Edwards, an accused’s inquiry must demonstrate a desire to discuss the subject matter
of the criminal investigation.”).
No. 10-1669        McKinney v. Ludwick                                             Page 8


       In this case, the parties do not dispute that McKinney invoked his right to counsel
in a custodial interrogation during his November 20, 2004 interview with Delgreco. At
issue is whether Delgreco’s subsequent remark to McKinney that he could possibly face
the death penalty constituted an interrogation in violation of Edwards and, if so, whether
that interrogation renders invalid McKinney’s confessions on November 21, 2004. The
Michigan Court of Appeals—whose opinion we look to as the last reasoned state-court
determination of McKinney’s Fifth Amendment claim, see Davie v. Mitchell, 547 F.3d
297, 315 (6th Cir. 2008)—determined, over the dissent of one judge, that Delgreco’s
statement did amount to an impermissible interrogation. Nevertheless, all three judges
agreed that the coercive effect of this interrogation had subsided by the time McKinney
asked to speak with Delgreco the next morning. Therefore, they reasoned, the initiation
exception articulated in Edwards applied and McKinney had validly waived his right to
counsel before giving his statements. This decision did not reflect an unreasonable
application of relevant Supreme Court precedent.

       Nothwithstanding the Michigan court’s decision, it is by no means clear that
Delgreco’s death-penalty comment to McKinney qualified as the functional equivalent
of interrogation, as opposed to a type of “subtle compulsion” to cooperate that is not
foreclosed by Miranda and Edwards. See Innis, 446 U.S. at 303. As the Seventh Circuit
has held, a law enforcement officer’s “statement regarding the evidence and the possible
consequences of the charges [a suspect] faced,” including a statement that the suspect
may face the death penalty, does not necessarily “r[i]se to the level of interrogation
under existing United States Supreme Court precedent.” Easley v. Frey, 433 F.3d 969,
974 (7th Cir. 2006); cf. United States v. Payne, 954 F.2d 199, 203 (4th Cir. 1992)
(“[S]tatements by law enforcement officials to a suspect regarding the nature of the
evidence against the suspect [do not] constitute interrogation as a matter of law.”).
Nevertheless, the determination that Delgreco’s remark qualified as interrogation is not
unreasonable and we will therefore defer to it under AEDPA.

       Even if Delgreco impermissibly interrogated McKinney on the night of
November 20, 2004, the Michigan court reasonably held that the initiation exception to
No. 10-1669          McKinney v. Ludwick                                                Page 9


Edwards covered McKinney’s request to discuss his case with Delgreco and
Tomaszewski on the morning of November 21, 2004. There is no question that, on that
morning, McKinney waved Delgreco down and asked to talk about how his case was
going to proceed, signaling “a willingness and a desire for a generalized discussion about
the investigation.” See Bradshaw, 462 U.S. at 1045-46 (1983) (plurality opinion);
United States v. Williams, 612 F.3d 417, 421-22 (6th Cir.) (holding that suspect, not
police, initiated conversation under Edwards “by asking to talk about the case”), cert.
denied, 131 S. Ct. 614 (2010). Delgreco at first refused, citing McKinney’s invocation
of his right to counsel the previous night, but McKinney would not be deterred. See
Bradshaw, 462 U.S. at 1046 (plurality opinion) (noting that fact officer told defendant
he did not have to talk about his case supported decision that defendant initiated
communication with police under Edwards). McKinney then signed a written statement
indicating that he had asked Delgreco to discuss his case.

        Nevertheless, McKinney contends that his request to talk to police was
precipitated by Delgreco’s death-penalty comment, which we construe as an improper
interrogation, and Edwards dictates that we therefore must presume that his subsequent
confession was involuntary. The Michigan court was not unreasonable to reject this
argument. As the Supreme Court has recently explained, “[t]he Edwards presumption
of involuntariness ensures that police will not take advantage of the mounting coercive
pressures of prolonged police custody by repeatedly attempting to question a suspect
who previously requested counsel until the suspect is badgered into submission.”
Maryland v. Shatzer, 130 S. Ct. 1213, 1220 (2010) (citations and internal quotation
marks omitted). Recognizing this justification for Edwards, this Court in Hill v.
Brigano, 199 F.3d 833 (6th Cir. 1999), held that, even when police impermissibly
interrogate an individual after he invokes his right to counsel, that individual can still
initiate communication with police and waive his previously asserted right when
“‘enough time . . . elapse[s] between the impermissible further interrogation and the
“initiation” [such] that the coercive effect of the interrogation . . . subside[s],’” id. at 842
(quoting United States v. Gomez, 927 F.2d 1530, 1539 n.8 (11th Cir. 1991)). In Hill,
state police repeatedly questioned the petitioner in violation of Edwards, but he did not
No. 10-1669        McKinney v. Ludwick                                           Page 10


give any incriminating statements until the day after the last improper interrogation;
further, in the interim the petitioner appeared before a magistrate judge, who informed
him of his Miranda rights and appointed him counsel. This Court decided that, “[t]aking
into account both the time lapse between the impermissible interrogation and the
incriminating statements by the defendant and the fact that the defendant was aware that
he had been assigned counsel,” the trial court had correctly applied the initiation
exception to Edwards. Id.

       The facts of this case are markedly similar to those of Hill. An entire night
passed between Delgreco’s death-penalty comment and McKinney’s request to talk
about his case. Additionally, at the time of his November 20, 2004 arrest, McKinney
had already retained an attorney to represent him in this matter; that attorney had acted
on his behalf during his August 2004 arrest and interrogation. McKinney attempts to
distinguish his case by arguing that Delgreco’s remark about the death penalty was more
coercive than the improper interrogation to which the defendant in Hill was subject.
Thus, he asserts, it is unreasonable to conclude that McKinney no longer felt pressured
to talk the next morning. However, it is a close question whether Delgreco’s remark that
McKinney might be prosecuted federally, and might therefore be subject to the death
penalty, even amounts to interrogation. This uncertainty is reflected in the fact that,
even if McKinney felt some urge to confess after Delgreco’s comment, it was not so
strong as to induce him to do so immediately, therefore “reducing the likelihood that
[McKinney] was under any compulsion to confess.” Holman v. Kemna, 212 F.3d 413,
419 (8th Cir. 2000) (relying in part on Hill to conclude that Edwards did not invalidate
confession given day after police officer contacted suspect in police custody and told
him that his girlfriend had given confession implicating him in crime). It is difficult to
understand how Delgreco’s statement could be perceived as more likely to induce
McKinney to confess than the direct questioning endured by the defendant in Hill. This
seems especially true in light of precedent establishing that police can inform a suspect
about the potential legal consequences of his crime, Simpson v. Jackson, 615 F.3d 421,
436 (6th Cir. 2010)—or even promise that, by cooperating, a suspect can avoid the death
penalty, Anderson v. Terhune, 467 F.3d 1208, 1213 (9th Cir. 2006), or federal
No. 10-1669            McKinney v. Ludwick                                                       Page 11


prosecution, United States v. Redditt, 87 F. App’x 440, 444 (6th Cir. 2003)—without
engaging in behavior that is so inherently coercive as to render a suspect’s subsequent
confession involuntary.3

         Accordingly, the Michigan court reasonably relied on Hill to conclude that any
coercive effect of Delgreco’s death-penalty comment had subsided by the time
McKinney asked to discuss his case, and Edwards did not invalidate his November 21,
2004 statements. For the reasons discussed by the district court, the record also supports
the conclusion that McKinney knowingly and voluntarily waived his Miranda rights
after asking to talk to Delgreco and Tomaszewski on November 21, 2004, McKinney,
2010 WL 1753106, at *7-8, and McKinney does not challenge this determination on
appeal. Therefore, the admission of McKinney’s confessions at trial was not contrary
to, or the result of an unreasonable application of, clearly established federal law, and
he is not entitled to habeas relief.

                                          CONCLUSION

         For the foregoing reasons, we AFFIRM the district court’s denial of McKinney’s
petition for a writ of habeas corpus.




         3
           McKinney points to two other facts that he claims support his position that Delgreco’s remark
was unduly coercive: (1) that McKinney’s attorney had requested the Inkster Police Department to keep
him informed of developments in McKinney’s case, and Delgreco failed to contact him with news of
McKinney’s November 20, 2004 arrest; and (2) that Delgreco called Tomaszewski the night of November
20, 2004 and asked him to come to the police station the next morning because McKinney was in custody,
presumably so they could interrogate McKinney. First, these facts were not found to be true or, in the case
of the second claim, were explicitly rejected in the Michigan courts, and these factual determinations are
entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1). Second, it is unclear how, even if
these facts were true, they would effect the degree to which McKinney felt compelled to confess as a result
of Delgreco’s death-penalty comment, as McKinney was unaware of either occurrence. Cf. Moran, 475
U.S. at 422 (“Events occurring outside of the presence of the suspect and entirely unknown to him surely
can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”).
