        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2     Abela v. Martin                              No. 00-2430
    ELECTRONIC CITATION: 2004 FED App. 0283P (6th Cir.)
                File Name: 04a0283p.06                    for Appellant. William C. Campbell, OFFICE OF THE
                                                          ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
UNITED STATES COURT OF APPEALS                              COLE, J., delivered the opinion of the court, in which
                                                          CLAY, J., joined. SILER, J. (pp. 26-27), delivered a separate
               FOR THE SIXTH CIRCUIT                      opinion concurring in part and dissenting in part.
                 _________________
                                                                               _________________
 KEVIN MARK ABELA ,                X
                                                                                   OPINION
          Petitioner-Appellant, -                                              _________________
                                    -
                                    -  No. 00-2430
            v.                                              R. GUY COLE, JR., Circuit Judge. Petitioner Kevin Mark
                                    -
                                     >                    Abela, a former Michigan prisoner who was convicted of
                                    ,                     manslaughter and carrying a concealed weapon in 1991,
 WILLIAM MART IN , Director,        -                     appeals the federal district court’s dismissal of his petition for
 Michigan Department of             -                     a writ of habeas corpus, which he filed pursuant to 28 U.S.C.
 Corrections,                       -                     § 2254 on April 26, 1999. Petitioner contends that: (1) his
         Respondent-Appellee. -                           Fifth Amendment rights were violated when police elicited
                                    -                     statements from him following his request for counsel and
                                   N                      when they interrogated him while he was allegedly
       Appeal from the United States District Court       intoxicated, in pain, and on pain medication; (2) his due
      for the Eastern District of Michigan at Detroit.    process and Sixth Amendment rights were violated because
    No. 99-72095—Robert H. Cleland, District Judge.       of prosecutorial misconduct at trial; and (3) he was denied the
                                                          effective assistance of both trial and appellate counsel.
                 Argued: April 21, 2004                   Respondent contends that Abela’s claims are barred by
                                                          procedural default.
          Decided and Filed: August 27, 2004
                                                            Because we find that Abela’s claims are not barred by
   Before: SILER, COLE, and CLAY, Circuit Judges.         procedural default, and that his Fifth Amendment claim
                                                          concerning statements elicited after he invoked his right to
                  _________________                       counsel is meritorious, we REVERSE the district court’s
                                                          judgment and REMAND to the district court with
                       COUNSEL                            instructions to grant the writ of habeas corpus, unless the state
                                                          elects to retry Abela within ninety days of the date of this
ARGUED: James Sterling Lawrence, Detroit, Michigan, for   opinion’s entry.
Appellant. William C. Campbell, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: James Sterling Lawrence, Detroit, Michigan,

                            1
No. 00-2430                             Abela v. Martin      3    4    Abela v. Martin                              No. 00-2430

                    I. BACKGROUND                                 room, but before being treated for his injuries, Oakland
                                                                  County Police Sergeant Michael McCabe began interrogating
A. Factual Background                                             Abela about the events leading up to the stabbing. Abela
                                                                  responded by stating, “maybe I should talk to an attorney by
   Abela’s convictions stemmed from the stabbing death of         the name of William Evans,” and he showed Sergeant
Stanley Underwood at a party in the early morning hours of        McCabe Evans’s business card. Sergeant McCabe agreed to
May 19, 1990. Abela arrived at a party at the home of Allen       call Evans for Abela and left the room, presumably to contact
Howard in Rochester Hills, Michigan, sometime during the          Evans. Upon returning, McCabe made no mention of Evans,
evening of May 18. At approximately 1:00 a.m., Abela and          and proceeded to read Abela his Miranda rights. Abela then
a friend, Ronald Wright, noticed a man, J.J. Sullivan, pushing    signed a form waiving those rights and gave a statement to
a car out of the driveway of the home. Abela confronted           Sergeant McCabe. After being treated at the hospital, Abela
Sullivan and an argument ensued; it turned into a fistfight.      was taken to the police station. He gave another statement
After the fight broke up, Sullivan ran into the house, where he   there. In both statements, Abela admitted to stabbing
told his older brother, Jerry, that someone had beaten him up.    Underwood, but claimed that he did so in self defense. The
                                                                  statements were admitted at trial and used by the prosecution
  A second fight began when Jerry Sullivan and Allen              against Abela.
Howard ran outside to confront Abela. Abela’s nose was
broken in the fight, which ended with Howard holding Abela        B. Procedural History
down on the ground. Howard promised Abela that he would
release him if he left the party immediately. Abela then left        Abela was charged with second degree murder and carrying
the party with Wright.                                            a concealed weapon. Prior to trial in the Oakland County
                                                                  Circuit Court, Abela’s counsel filed a motion to dismiss the
  Upon reaching their car, however, Wright realized that he       concealed weapon charge because the knife was not
had forgotten his jacket at the party, and he returned to the     concealed – Abela carried it in a sheath attached to the outside
house to retrieve it. Abela waited at the edge of the driveway.   of his belt. The trial judge granted the motion and dismissed
Suddenly, however, several people from the party, including       the concealed weapon charge on September 12, 1990. On
Stanley Underwood, attacked Abela, knocked him down, and          November 5, 1990 – outside the fourteen-day time limit
surrounded him. Abela was kicked and punched in the face          prescribed by Mich. Ct. Rule 2.119(F)(1) – the prosecution
and body. Among the group of attackers was Stanley                filed a motion for reconsideration of the dismissal. Abela’s
Underwood, who, during the course of the brawl, straddled         counsel did not object to this motion. On June 3, 1991, the
Abela’s chest. Abela thereupon drew a knife from a sheath on      trial judge granted the prosecution’s motion for
his belt and stabbed Underwood in the chest and left arm          reconsideration and reinstated the concealed weapon charge.
three times. Underwood died a short time later from the stab
wounds.                                                             The trial commenced in June 1991. During closing
                                                                  arguments, the prosecutor presented a hypothetical
  Abela fled to a friend’s house, where he called 911 and told    conversation between Abela and Ronald Wright. The
the operator that he had stabbed someone. After meeting the       prosecutor stated:
police back at Howard’s house, Abela was taken to a hospital
emergency room for treatment. While at the emergency
No. 00-2430                              Abela v. Martin      5    6    Abela v. Martin                             No. 00-2430

  Do you think when they [Abela and Wright] got back to            statement at the hospital was involuntary because he was
  that car they were mad as hell? Both of them got shot            injured, under the influence of alcohol, and on pain
  down, pretty damn drunk, they are pretty pissed off.             medication at the time of questioning; (3) that the trial court
  They’ve lost the fight. They’ve been thrown out.                 improperly granted the prosecution’s untimely motion to
  They’ve been humiliated . They’ve been embarrassed.              reconsider the dismissal of the concealed weapon charge;
  Not only that, Ron Wright says, “My damn coat’s back             (4) that the prosecutor unfairly prejudiced Abela by
  there. Let’s go get it.” [Abela then replied,] “Ronnie,          presenting witness testimony in his closing argument that was
  better take this [Abela’s knife] when we go back. Ain’t          unsupported by the record; (5) that Abela’s trial counsel
  nobody going to kick our ass anymore. Let’s go back.”            provided ineffective assistance; and (6) that Abela’s appellate
                                                                   counsel provided ineffective assistance, constituting “good
This statement is the basis for Abela’s prosecutorial              cause” for Abela’s failure to raise the other claims in his
misconduct claim, which will be discussed below.                   direct appeal. The motion was denied “for lack of merit on
                                                                   the grounds presented.” People v. Abela, No. 90-101083
  Abela was convicted by a jury of voluntary manslaughter          (Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the
and carrying a concealed weapon on July 24, 1991. He was           same six issues on appeal to the Michigan Court of Appeals,
sentenced to seven to fifteen years’ imprisonment for the          which likewise denied his petition “for lack of merit in the
voluntary manslaughter count, and a concurrent forty months        grounds presented.”        People v. Abela, No. 200930
to five years of imprisonment for carrying a concealed             (Mich.Ct.App. July 22, 1997). On August 9, 1997, Abela
weapon.                                                            again raised these six issues in his delayed application for
                                                                   leave to appeal to the Michigan Supreme Court, which denied
   Abela appealed his convictions, raising three issues in the     his petition in a summary disposition, stating: “Defendant has
Michigan Court of Appeals on February 17, 1992. The three          failed to meet the burden of establishing entitlement to relief
issues were: (1) that his sentence was disproportionate to the     under M.C.R. 6.508(D). People v. Abela, 457 Mich. 880, 586
crime; (2) that the trial court erred by reinstating the weapons   N.W.2d 923 (Mich. 1998). On August 3, 1998, Abela filed a
charge; and (3) that the trial court erred by allowing the         petition for certiorari with the U.S. Supreme Court, which
prosecution to present rebuttal testimony not raised in its        was denied on October 19, 1998. Abela v. Michigan, 525
case-in-chief. The Michigan Court of Appeals affirmed              U.S. 948 (1998).
Abela’s conviction and sentence in an unpublished
disposition. People v. Abela, No. 144005 (Mich.Ct.App. July          Abela was released to parole status on March 16, 1998, and
22, 1994). The Michigan Supreme Court denied Abela’s               discharged from parole on March 16, 2000, which terminated
delayed application for leave to appeal these issues on March      his seven to fifteen year sentence for manslaughter. His three
31, 1995. People v. Abela, 448 Mich. 901, 533 N.W.2d 313           to five year sentence for carrying a concealed weapon ended
(Mich. 1995).                                                      on October 22, 1995. However, it was on April 26, 1999,
                                                                   before his parole term ended, that Abela petitioned for a writ
  In August 1996, Abela filed a motion for relief from             of habeas corpus pursuant to 28 U.S.C. § 2254, raising most
judgment in the Oakland County Circuit Court, raising six          of the same claims as were in his motion for relief from
claims: (1) that his statement at the hospital was                 judgment (except for his claim that the trial court erred in
unconstitutionally elicited and admitted because Sergeant          reconsidering its dismissal of the concealed weapon charge).
McCabe ignored Abela’s request for an attorney; (2) that his       Specifically, Abela asserted that: (1) his statement to police
No. 00-2430                             Abela v. Martin      7    8    Abela v. Martin                              No. 00-2430

at the hospital was unconstitutionally elicited and admitted      petition, do not render moot his appeal from the district
because he had invoked his right to counsel; (2) his statement    court’s denial of the petition. He continues to satisfy Article
at the hospital was involuntary and inadmissible because he       III’s “case or controversy” requirement because of the
was injured, intoxicated, and on pain medication at the time      continuing collateral consequences to a wrongful criminal
of questioning; (3) the prosecutor engaged in misconduct          conviction. Spencer v. Kemna, 523 U.S. 1, 8 (1998).
during closing argument; (4) trial counsel was ineffective for
failing to object to the prosecutor’s untimely motion for         B. Whether Abela Procedurally Defaulted on the Claims
reconsideration; and (5) appellate counsel was ineffective and       in His Habeas Petition
that this constitutes “good cause” for any alleged procedural
default of the preceeding claims.                                   Respondent contends that because the claims raised by
                                                                  Abela in his habeas petition were raised for the first time in
  The district court denied the petition for habeas relief on     his state post-conviction motion for relief from judgement –
October 31, 2000. It held that Abela’s claims were not            and not on direct appeal – federal review of his claims is
procedurally defaulted, but that they were without merit. This    barred by procedural default. It is well-settled that when a
Court granted a certificate of appealability on April 20, 2001,   state prisoner has “defaulted his federal claims in state court
and on October 30, 2002, denied the petition as untimely, and     pursuant to an independent and adequate state procedural rule,
accordingly, declined to address the merits. Abela v. Martin,     federal habeas review of the claims is barred” unless the
309 F.3d 338 (6th Cir. 2002). The Court then agreed to hear       petitioner can show cause for the default and prejudice
the case en banc, and in 2003, vacated its prior opinion and      because of it, or a fundamental miscarriage of justice.
judgment, holding that Abela’s habeas petition was timely.        Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc). The
petition was remanded to this panel for consideration of the         For the doctrine of procedural default to apply, there must
procedural default question and the merits, which we turn to      be a state procedural rule applicable to the petitioner’s claim,
now.                                                              and the petitioner must have failed to comply with that rule.
                                                                  Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir.
                      II. ANALYSIS                                1992), cert. denied, 507 U.S. 932 (1993). In addition, the
                                                                  state court must have enforced the state procedural rule to bar
A. Jurisdiction and Mootness                                      the petitioner’s claim. Specifically, the last state court from
                                                                  which the petitioner sought review must have invoked the
  We reaffirm our prior determinations concerning both            state procedural rule as a basis for its decision to reject
subject matter jurisdiction and mootness. Abela, 309 F.3d at      reviewing the petitioner’s federal claims. Coleman, 501 U.S.
343-44. This Court has subject matter jurisdiction over           at 729-30. Lastly, the state procedural rule must constitute an
Abela’s habeas petition, pursuant to 28 U.S.C. § 2254(a),         “adequate and independent” state ground on which the state
because Abela was “in custody” at the time he filed the           can rely to foreclose review of a federal constitutional claim.
petition with the district court on April 26, 1999. Jones v.      Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). A state
Cunningham, 371 U.S. 236, 242 (1963) (holding that                procedural rule is “adequate” if it is firmly established and
petitioner who was on parole was still “in custody” for habeas    regularly followed at the time it is applied. Williams v. Coyle,
purposes). Abela’s release from custody and the subsequent        260 F.3d 684, 693 (6th Cir. 2001). A state procedural rule is
conclusion of his parole term, after the filing of his habeas     an “independent” ground for precluding federal habeas review
No. 00-2430                              Abela v. Martin      9    10   Abela v. Martin                             No. 00-2430

if the state courts actually relied on the rule to bar the claim     conviction and sentence or in a prior motion under this
at issue. As this Court has held, “a state procedural rule is an     subchapter, unless the defendant demonstrates
independent and adequate state ground only if the state court
rendering judgment in the case clearly and expressly stated          (a) good cause for failure to raise such grounds on appeal
that its judgment rested on a procedural bar.” Simpson v.            or in the prior motion, and
Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
                                                                     (b) actual prejudice from the alleged irregularities that
  Whether a petitioner’s federal habeas claim is barred              support the claim for relief. . . .
because the petitioner procedurally defaulted on the claim in
state court is a question of law we review de novo. Couch v.          As noted above, our task is to determine whether the state
Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The last state court        court “clearly and expressly stated that its judgment rested on
from which Abela sought review, the Michigan Supreme               a procedural bar.” Sparkman, 94 F.3d at 202. Here, the
Court, denied relief in a standard order stating that:             Michigan Supreme Court only referenced M.C.R. 6.508(D),
“Defendant has failed to meet the burden of establishing           generally, as the basis for denying Abela leave to appeal the
entitlement to relief under M.C.R. 6.508(D).” People v.            judgment of the Michigan Court of Appeals. As seen just
Abela, 457 Mich. 880, 586 N.W.2d 923 (Mich. 1998).                 above, M.C.R. 6.508(D) states that “[t]he defendant has the
Respondent urges us to construe that order – and the citation      burden of establishing entitlement to the relief requested.”
to M.C.R. 6.508(D) – as an invocation of the procedural            Although 6.508(D)(1), (2), and (3) list specific procedural
default provision set forth in M.C.R. 6.508(D)(3). M.C.R.          grounds for denying a defendant relief from judgment, these
6.508(D) broadly pertains to motions for relief from               procedural grounds are not the exclusive grounds for which
judgment, and states in relevant part:                             a court may deny relief pursuant to M.C.R. 6.508(D). A court
                                                                   may deny relief from judgment under 6.508(D) for the non-
  (D) Entitlement to Relief. The defendant has the burden          procedural reason that the defendant simply failed to meet his
  of establishing entitlement to the relief requested. The         burden of “establishing entitlement to the relief requested.”
  court may not grant relief to the defendant if the motion        As such the Michigan Supreme Court’s citation to M.C.R.
                                                                   6.508(D) in its order denying Abela leave to appeal does not
  (1) seeks relief from a judgment of conviction and               demonstrate that that court denied him leave to appeal on the
  sentence that still is subject to challenge on appeal            basis of a procedural default, much less on the procedural
  pursuant to subchapter 7.200 or subchapter 7.300;                ground described in M.C.R. 6.508(D)(3), which Respondent
                                                                   urges on this Court.
  (2) alleges grounds for relief which were decided against
  the defendant in a prior appeal or proceeding under this           We note that in Simpson v. Jones, 238 F.3d 399 (6th Cir.
  subchapter, unless the defendant establishes that a              2000), the Sixth Circuit held that a statement by the Michigan
  retroactive change in the law has undermined the prior           Supreme Court that a defendant “failed to ‘meet the burden of
  decision;                                                        establishing entitlement to relief under M.C.R. 6.508(D)’”
                                                                   constituted invocation of “an independent and adequate state
  (3) alleges grounds for relief, other than jurisdictional        procedural rule” sufficient to prevent federal habeas review.
  defects, which could have been raised on appeal from the         Simpson, 238 F.3d at 407-08. In that case, the petitioner filed
                                                                   two motions for collateral review in the state court following
No. 00-2430                              Abela v. Martin     11    12   Abela v. Martin                              No. 00-2430

his direct appeal. The trial court granted partial relief on the   supreme court never invoked a procedural bar here, but rather
first motion and the petitioner never appealed the adverse         repeatedly ruled on the merits. The procedural circumstances
portion of that ruling. The state trial judge explicitly denied    in this case are, therefore, materially different from those in
the second motion on procedural grounds, noting that               Simpson and Burroughs, where the lower state courts actually
Simpson raised no issues that had not been previously              invoked a procedural bar, making it clearer that the Michigan
addressed by the trial court and the Michigan Court of             Supreme Court was also invoking such a bar when it referred
Appeals. Id. at 403. In addition, the court briefly addressed      to M.C.R. 6.508(D). But given that all of the lower state
and rejected Simpson’s arguments on the merits. Simpson            courts adjudicated Abela’s case on the merits, it is not at all
then filed an application for leave to appeal to the Michigan      clear that the Michigan Supreme Court’s summary order
Court of Appeals, raising the same claims he raised in the         relies on a procedural bar, as opposed to the non-procedural
second motion for collateral review before the trial court. He     reason that Abela simply failed to meet his burden of
also contested the trial court’s procedural default                “establishing entitlement to the relief requested.” Indeed,
determination. The Court of Appeals denied that application        given the line of prior merits determinations in Abela’s case,
on the basis of M.C.R. 6.508(D). Simpson then applied for          it is just as reasonable to presume that the Michigan Supreme
leave to appeal to the Michigan Supreme Court, based on the        Court’s reference to M.C.R. 6.508(D) signaled its agreement
same issues he had raised in the Court of Appeals. This            with the lower courts’ merits determinations as it is to
application was denied on the basis of M.C.R. 6.508(D).            presume that the reference signaled, for the first time in this
                                                                   case, the invocation of a procedural bar.
  Similar procedural facts existed in Burroughs v. Makowski,
282 F.3d 410 (6th Cir. 2002), where the state trial court             In short, the procedural facts of Simpson and Burroughs are
denied post-conviction relief both on the merits and on the        distinguishable from our case. The facts in Simpson and
ground of procedural default, and subsequently, both the           Burroughs inspired greater certainty that the Michigan
Michigan Court of Appeals and the Michigan Supreme Court           Supreme Court actually relied on a procedural bar in
denied Burroughs’s application for leave to appeal, stating        rendering its judgment. No such clarifying indicators are
that he failed to establish “entitlement for relief under M.C.R.   present here. Moreover, Simpson and Burroughs do not
6.508(D).” Burroughs, 282 F.3d at 412.                             purport to eviscerate our Circuit’s rule that a state procedural
                                                                   rule is an “independent and adequate” state ground only if the
  But the Simpson and Burroughs rationale is inapplicable          state court rendering judgment in the case “clearly and
here. In our case, the last reasoned state court judgment          expressly stated that its judgment rested on a procedural bar.”
before the Michigan Supreme Court’s order – which was the          Sparkman, 94 F.3d at 202. Simpson and Burroughs did not
Michigan Court of Appeals’ decision denying leave to appeal        hold that we should divine procedural default from any and
– was a merits determination. The Court of Appeals stated          all references to M.C.R. 6.508(D) where such default may
that the motion was “DENIED for lack of merit in the               actually have occurred, but where the procedural history
grounds presented.”       People v. Abela, No. 200930              raises genuine questions as to the state court’s actual reliance
(Mich.Ct.App. July, 22, 1997). Similarly, the trial court had      on a procedural bar. To suggest that those cases did so hold
previously denied the motion for post-conviction relief “for       is to accept that they invert the inquiry into whether federal
lack of merit on the grounds presented.” People v. Abela, No.      review of the habeas claims is permitted. That is, pursuant to
90-101083 (Oakland County Cit. Ct. Oct. 22, 1996). In short,       Maupin v. Smith, 785 F.2d 135 (1986), whether the petitioner
unlike in Simpson and Burroughs, the state courts below the        actually failed to comply with a procedural rule is only the
No. 00-2430                             Abela v. Martin     13    14     Abela v. Martin                            No. 00-2430

predicate, not the ultimate, question before us. The ultimate     court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). In Williams
legal questions are whether the court relied on and expressly     v. Taylor, 529 U.S. 362 (2000), the Supreme Court
invoked that procedural bar and whether it is an “independent     determined that a state court’s decision is contrary to clearly
and adequate” ground for precluding review. See Williams          established federal law when it fails to consider a rule of law
v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001). If a state court     that is embedded in the Supreme Court’s jurisprudence at the
is slurring its words, our job is not to guess what it might be   time the state conviction became final. Williams, 529 U.S. at
saying, but rather to demand that it enunciate more clearly.      380. In defining “clearly established law,” the Supreme Court
Here, because of numerous factors – the Michigan Supreme          held that “rules of law are sufficiently clear for habeas
Court’s reference only to M.C.R. 6.508(D), the absence of a       purposes even when they are expressed in terms of a
clear and express invocation of a procedural bar, and the         generalized standard rather than as a bright-line rule.” Id. at
plausibility, based on the prior state courts’ merits rulings,    382. The Williams court further held that a state court
that the Michigan Supreme Court, too, grounded its decision       unreasonably applies clearly established Supreme Court
in a non-procedural reason based on Abela’s failure               precedent when it correctly identifies the governing legal
to“establish[] entitlement to relief” – we cannot find that       principle in the case, but unreasonably applies that principle
M.C.R. 6.503(D)(3), the state procedural rule urged by            to the facts of the defendant’s case. Id. at 413.
Respondent, was actually relied on by the Michigan Supreme
Court in this case. For the same reasons, we cannot find that     D. Abela’s Interrogations by Police and the Trial Court’s
M.C.R. 6.503(D) constitutes an adequate and independent              Admission of the Statements
basis for the state supreme court’s decision here.
                                                                    1.    Whether Abela’s Statements Were Elicited in
  Accordingly, we hold that the claims raised by Abela in his             Violation of His Fifth Amendment Right to Counsel
habeas petition were not procedurally defaulted and we turn
now to the merits of the petition.                                  Abela’s first claim concerning his statements is that they
                                                                  should have been suppressed because they were elicited in
C. Standard of Review                                             violation of his Fifth Amendment right to counsel.

   We review de novo the decision of the district court to deny      The Fifth Amendment to the U.S. Constitution guarantees
habeas relief. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.     that “no person . . . shall be compelled in any criminal case to
2000). However, federal review of the state court’s decision      be a witness against himself.”            Although the Fifth
is governed by the Antiterrorism and Effective Death Penalty      Amendment does not guarantee a right to counsel, in Miranda
Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214         v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that
(1996). Pursuant to AEDPA, habeas relief may not be               in certain pretrial stages – namely, custodial interrogation –
granted with respect to any claim adjudicated on the merits in    the privilege against self–incrimination includes an implied
the state court unless the adjudication: “(1) resulted in a       right to counsel. This right is triggered when a suspect is
decision that was contrary to, or involved an unreasonable        interrogated while “in custody” or “otherwise deprived of his
application of, clearly established Federal law, as determined    freedom in any significant way.” Miranda, 384 U.S. at 444;
by the Supreme Court of the United States; or (2) resulted in     California v. Beheler, 463 U.S. 1121, 1126 (1983) (holding
a decision that was based on an unreasonable determination        that suspect’s voluntary appearance and departure at police
of the facts in light of the evidence presented in the State      station for questioning was not custodial interrogation). The
No. 00-2430                            Abela v. Martin     15    16   Abela v. Martin                             No. 00-2430

Supreme Court has broadly defined “interrogation” as any         present during questioning, and he waived those rights.
police questioning of a suspect in custody “reasonably likely    Davis, 512 U.S. at 454. However, approximately one-and-a-
to elicit an incriminating response.” Rhode Island v. Innis,     half hours into the interview, the defendant stated, “Maybe I
446 U.S. 291, 301 n.7, 302, n.8 (1980).                          should talk to a lawyer. Id. at 455. Investigators immediately
                                                                 inquired whether the defendant was “asking for a lawyer,” or
   In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the       whether he was “just making a comment about a lawyer,” and
Supreme Court established a bright- line rule that once a        the defendant responded: “No, I’m not asking for a lawyer . . .
suspect is in custody and invokes the right to counsel, law      No, I don’t want a lawyer.” Id. (internal quotation marks
enforcement may not further interrogate him until counsel has    omitted). On appeal, the defendant argued that he had
been made available, or unless the suspect initiates further     invoked his right to counsel and that, therefore, police
conversations or exchanges with the police. To trigger the       questioning should have ceased. But the Supreme Court
Edwards rule, the suspect’s invocation of the right to counsel   concluded that the defendant’s statement – “Maybe I should
must be clear and unambiguous. Davis v. United States, 512       talk to a lawyer” – was ambiguous, and not sufficiently clear
U.S. 452, 459 (1994). “[I]f a suspect makes a reference to an    such that a reasonable police officer in the circumstances
attorney that is ambiguous or equivocal in that a reasonable     would have understood the statement to be a request for an
officer in light of the circumstances would have understood      attorney. Id. at 462; see also Ledbetter v. Edwards, 35 F.3d
only that the suspect might be invoking the right to counsel,”   1062, 1070 (6th Cir. 1994) (holding that the defendant’s
then cessation of questioning is not required. Id.               statement that “it would be nice” to have an attorney was not
                                                                 a clear and unambiguous request for counsel). Furthermore,
  Here, the parties do not dispute that Abela was being          the investigators’ questions had helped clarify that Davis was
subject to custodial interrogation at the hospital when he       not, in fact, requesting an attorney. Id. at 461. (“Clarifying
expressed a desire to speak to his attorney, William Evans,      questions help protect the rights of the suspect by ensuring
and then showed Sergeant McCabe Evans’s business card.           that he gets an attorney if he wants one, and will minimize the
Although, at that point, Abela had not yet been read his         chance of a confession being suppressed due to subsequent
Miranda warnings, the Fifth Amendment’s implied right to         judicial second-guessing as to the meaning of the suspect’s
counsel was triggered because Abela was being subjected to       statement regarding counsel.”).
custodial interrogation by Sergeant McCabe. Accordingly,
this case differs from those in which a request for counsel         Respondent contends that Abela’s case is identical to
preceeding Miranda warnings is deemed ineffective. See,          Davis, because, when Sergeant McCabe began questioning
e.g., Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.), cert.    Abela, he responded by stating, “maybe I should talk to an
denied, 530 U.S. 1283 (2000) (request for a lawyer when          attorney by the name of William Evans.” Respondent argues
suspect was not in custody and was told that he was free to      that Abela’s use of the word “maybe” is dispositive. We
leave did not render subsequent admissions inadmissible).        disagree, because in this case, unlike in Davis, the
                                                                 circumstances surrounding the statement were such that “a
  But the parties do dispute whether or not Abela’s request      reasonable officer would have understood” that Abela was
for counsel was clear and unambiguous such that the Edwards      clearly and unequivocally invoking the right to counsel.
protections were triggered and the police were compelled to      Abela did not merely say, “Maybe I should talk to an
cease questioning immediately. In Davis, the defendant was       attorney,” as did the defendant in Davis. Rather, Abela
informed of his right to remain silent and to have an attorney   named the specific individual with whom he wanted to speak
No. 00-2430                              Abela v. Martin     17    18   Abela v. Martin                             No. 00-2430

and then showed Sergeant McCabe the attorney’s business            Court precedent. Minnick v. Mississippi, 498 U.S. 146, 153-
card. McCabe said he would call Abela’s attorney for him           54 (1990). Furthermore, because Abela’s statements were
and left the room presumably to do so. Although our inquiry        self-incriminating and among the most significant evidence
is an objective one, id. at 459, McCabe’s actions confirm that     marshaled against him by the state, we do not find their
a reasonable officer would understand Abela’s statement to be      admission into evidence harmless.
a clear request for counsel.
                                                                      Finally, our decision is not altered by the fact that, after
   The events surrounding Abela’s statement sharply contrast       requesting counsel, Abela was read his Miranda rights, signed
with the facts in Davis, where the suspect followed his            a waiver of them, and proceeded to make a statement at the
purported request for counsel with a statement indicating that     hospital and at the police station (where, although not re-read
he was not asking for counsel. In our case, the events             his Miranda rights, he was asked whether he “remembered”
surrounding Abela’s request corroborate the unequivocal            them). As just discussed, when a suspect invokes his Fifth
nature of that request. Accordingly, we reject Respondent’s        Amendment right to counsel, police questioning must cease
contention that the word “maybe” be viewed in isolation, and       until counsel is present. A suspect may waive his Fifth
as dispositive of the question before us. Moreover, as we          Amendment right to counsel and the Edwards protections
have determined in other cases, language that might be less        after counsel has been requested, but only if the suspect
than clear, when viewed in isolation, can become clear and         himself has initiated the conversation or discussions with the
unambiguous when the immediately surrounding                       authorities. Minnick, 498 U.S. at 155-56. The evidence here
circumstances render them so. See Kyger v. Carlton, 146            shows that Abela did not initiate conversation with the police.
F.3d 374, 376 (6th Cir. 1998) (finding an unequivocal request      Rather, he gave a statement only after Sergeant McCabe
for counsel where the defendant stated that “I would just as       returned to the room, read him his Miranda rights, and
soon have an attorney,” in response to an officer’s asking         resumed questioning. In Arizona v. Roberson, 486 U.S. 675
him: “Would you answer some of our questions, without an           (1988), the Supreme Court explained that the bright-line,
attorney present?”). We note that a court’s use of surrounding     prophylactic Edwards rule protects against the inherently
circumstances to evaluate the clarity of a suspect’s request for   compelling pressures of custodial interrogation by creating a
counsel neither is precluded by nor alters the Supreme Court’s     presumption that any subsequent waiver of the right to
decision declining to adopt a rule requiring officers to ask       counsel at the authorities’ behest was coercive and not purely
clarifying questions in these circumstances. Davis, 512 U.S.       voluntary. Id. at 685-86. Moreover, the Supreme Court
at 461-62.                                                         expressly rejected the contention that the fresh issuance of
                                                                   Miranda warnings, after the suspect requested counsel, would
  After Abela requested counsel, the police were required to       overcome the pressures created by the custodial nature of the
cease questioning him until he had a lawyer present. The           situation. Id. at 686; see also United States v. Hall, 905 F.2d
police’s failure to cease questioning Abela – that is, both        959, 961, 964-65, (6th Cir. 1990), cert. denied, 501 U.S.
(1) Sergeant McCabe’s returning to Abela, reading him his          1233 (1991) (holding that once an accused expresses a desire
Miranda rights, and proceeding to interrogate him at the           to deal with police only through counsel, a presumption is
hospital, and (2) the police questioning that continued in the     created that any subsequent waiver of the right to counsel at
morning, at the police station, after Abela was released from      the authorities’ behest is coercive and not purely voluntary;
the hospital – violated Abela’s right to counsel, the contours     invoking Roberson in rejecting the proposition that “a fresh
of which are clearly established by federal law and Supreme        set of Miranda warnings would ‘reassure’ a suspect who had
No. 00-2430                             Abela v. Martin     19    20   Abela v. Martin                             No. 00-2430

been denied counsel” that “his rights would remain                  When Abela arrived at the hospital, he was injured;
untrammeled.”).                                                   specifically, his nose was broken. In addition, Abela
                                                                  contends that he drank alcohol in large quantities the night
  Accordingly, because we find that Abela’s Fifth                 before. However, there is no evidence in the record that he
Amendment right to counsel was violated and the state             was still drunk during his interrogations or that his mental
courts’ orders rejecting this claim are contrary to clearly       faculties were in any other respect impaired during
established federal law, as determined by the U.S. Supreme        questioning as a result of alcohol or medication. Still, the
Court, we grant Abela’s request for habeas relief on this         record makes clear that Abela was physically uncomfortable
ground.                                                           – indeed, his taped interview at the police station had to be
                                                                  stopped briefly because Abela was vomiting from the effects
  2.   Whether Abela’s Statements Were Unknowing and              of the previous night’s alcohol.
       Involuntary Due to His Physical and Mental
       Condition                                                     Abela has failed to demonstrate that the state court
                                                                  decisions rejecting this claim were contrary to, or involved an
  In addition to arguing that his statements to the police were   unreasonable application of, clearly established federal law,
inadmissible because they were elicited in violation of his       as determined by the U.S. Supreme Court. As a preliminary
Fifth Amendment-based right to counsel, Abela also contends       matter, he has presented no evidence of police coercion.
that the statements were unknowing and involuntary because        More importantly, although we are sympathetic to Abela’s
he was intoxicated, in pain, and on pain medication during        uncomfortable state in the hospital and police station, Abela
police questioning.                                               has not shown that the facts of this case are equivalent to
                                                                  those in Mincey v. Arizona, 437 U.S. 385 (1978), or Beecher
   The state bears the burden of proving that a defendant         v. Alabama, 389 U.S. 35 (1967), where the U.S. Supreme
“voluntarily, knowingly, and intelligently waived his right to    Court held involuntary the statements of wounded men. In
silence and counsel.” United States v. Bentley, 726 F.2d          those cases, the petitioners’ injuries were more severe and
1124, 1126 (6th Cir. 1984). This Court uses a “totality of the    there was clear evidence of a coercive environment. In
circumstances” to determine whether a petitioner’s statements     Mincey, the petitioner was seriously wounded after being shot
were involuntary. Brown v. Illinois, 422 U.S. 590 (1975).         by police during a narcotics raid on his apartment. He arrived
The Supreme Court has stated that, in conducting this test, a     at the hospital “depressed almost to the point of coma,”
court should consider factors such as: (1) police coercion;       according to his attending physician. Mincey, 437 U.S. at
(2) length of interrogation; (3) location of interrogation;       398. In addition, at the time of his interrogation, his
(4) continuity of interrogation; (5) the suspect’s maturity;      condition was still serious enough that he was in the intensive
(6) the suspect’s education; (7) the suspect’s physical           care unit. Id. Mincey complained to the police officer that
condition and mental health; and (8) whether the suspect was      the pain in his leg was “unbearable” and the record
advised of Miranda rights. Withrow v. Williams, 507 U.S.          demonstrated that he was “confused and unable to think
680, 693-94 (1993). Coercive police activity is a necessary       clearly about either the events of that afternoon or the
element for finding that a confession was involuntary.            circumstances of his interrogation.” Id. Nevertheless, police
Colorado v. Connelly, 479 U.S. 157, 167 (1986).                   questioning continued. Moreover, while Mincey was being
                                                                  questioned, he was “lying on his back on a hospital bed,
                                                                  encumbered by tubes, needles, and [a] breathing apparatus”
No. 00-2430                              Abela v. Martin     21    22    Abela v. Martin                              No. 00-2430

that a nurse testified was reserved for only the “more critical”   E. Prosecutorial Misconduct
patients.
                                                                     In his next claim for relief, Abela contends that he was
   Beecher involved an African-American petitioner accused         deprived of his right to a fair trial and due process pursuant to
of raping and killing a white woman. He had fled into an           the Sixth and Fourteenth Amendments because the
open field and was chased by police, who fired a bullet into       prosecutor, in his closing argument, invented a conversation
his right leg. One officer then pressed a loaded gun to the        between Abela and Ronald Wright. Specifically, the
petitioner’s face while another officer pointed a rifle against    prosecutor stated that, prior to Wright’s return to Allen
the side of his head. The first officer then asked him whether     Howard’s house to retrieve his jacket, Abela told Wright:
he had raped and killed a white woman. When the petitioner         “Ronnie, better take this [knife] when we go back. Ain’t
responded that he had not, the officer called him a liar and       nobody going to kick our ass anymore. Let’s go back.” No
said, “If you don’t tell the truth I am going to kill you.”        testimony offered at trial shows that Abela actually made this
Beecher, 389 U.S. at 36. The other officer then fired his rifle    statement.
next to the petitioner’s ear and the petitioner immediately
confessed. Five days later, in a prison hospital, petitioner’s       In order to prevail on a claim of prosecutorial misconduct,
leg had become so swollen that he required an injection of         a habeas petitioner must demonstrate that the statements of
morphine every four hours (the leg eventually had to be            the prosecutor “so infected the trial with unfairness as to
amputated). Less than one hour after one of these injections,      make the resulting conviction a denial of due process.”
two Alabama investigators visited Beecher in the prison            Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In
hospital. The medical assistant in charge told the petitioner      determining whether a petitioner’s due process rights were
to “cooperate” and, in the petitioner’s presence, asked the        violated, this Court looks at the totality of the circumstances,
investigators to inform him if the petitioner did not “tell them   including:
what they wanted to know.” Id. In the course of a ninety-
minute session, the investigators prepared two detailed              the degree to which the remarks complained of have a
statements similar to the confession the petitioner had given        tendency to mislead the jury and prejudice the accused;
five days earlier at gunpoint. As the Supreme Court                  whether they are isolated or extensive; whether they were
explained, “[s]till in a ‘kind of slumber’ from his last             deliberately or accidentally placed before the jury, and
morphine injection, feverish, and in intense pain, the               the strength of the competent proof to establish the guilt
petitioner signed the written confessions thus prepared for          of the accused.
him.” Id. at 37.
                                                                   Kincade v. Sparkman, 175 F.3d 444, 446 (6th Cir. 1999). It
   Having studied the record on appeal with respect to Abela’s     is improper for a prosecutor to argue facts not in evidence.
physical and mental state during questioning, we do not find       Berger v. United States, 295 U.S. 78 (1935). Here, the
his situation sufficiently analogous to the grave medical          prosecutor presented a hypothetical conversation between
conditions and coercive environments in Mincey and Beecher         Abela and Ronald Wright in an attempt to explain why the
to warrant relief. We therefore deny this claim. However, as       two might have returned to the party after being told to leave.
discussed above, we find Abela’s statements improperly             At trial, Abela’s theory of self-defense was pitted against the
admitted on the ground that they were elicited in violation of     prosecution’s theory that Abela and Wright purposefully
his Fifth Amendment right to counsel.                              instigated the violent brawl that resulted in Stanley
No. 00-2430                             Abela v. Martin     23    24   Abela v. Martin                              No. 00-2430

Underwood’s death. As such, the prosecutor’s hypothetical            On November 5, 1990 – more than fifty days after the trial
was crucial to the primary theme of its closing argument and      court dismissed the concealed weapon count – the prosecutor
the theory of the case supporting the jury’s verdict.             filed a motion for reconsideration of the dismissal order,
Accordingly, and because evidence of Abela’s guilt was not        seeking to reinstate the charge. Mich. Ct. Rule 2.119(F)(1)
overwhelming, we must scrutinize the statement carefully.         provides that:
  We would be highly concerned if the prosecutor presented          Unless another rule provides a different procedure for
the conversation as factual. But, here, the prosecutor prefaced     reconsideration of a decision . . . , a motion for rehearing
this part of his argument by advising the jury: “and exactly        or reconsideration of the decision on a motion must be
what was said probably we’ll never know but probably went           served and filed not later than 14 days after entry of an
something like this . . . .” Because of this preface, we are        order disposing of the motion.
persuaded that the jury would not have been misled into
believing that the prosecutor was quoting from an actual          Because the prosecution filed its motion for reconsideration
conversation, but that he was rather presenting beliefs he        well outside the time limit prescribed by Michigan law, Abela
would have the jury infer from the evidence presented at trial.   contends that his counsel’s failure to object to the untimely
Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000). In            motion constituted deficient performance.
addition, when charging the jury, the trial judge reminded
jurors that they “can only consider the evidence that has been       However, M.C.R. 2.119(F)(2) states that “No response to
properly admitted in the case” and that “[e]vidence includes      the motion [for reconsideration] may be filed. . . .” In other
only the sworn testimony of the witnesses” and any admitted       words, the Michigan Court Rules did not permit Abela’s trial
exhibits, but that “[t]he lawyers’ statements and arguments       counsel to file an opposition to the state’s motion for
are not evidence.”                                                reconsideration. Accordingly, we cannot say that Abela’s
                                                                  trial counsel was constitutionally deficient for failing to
   Taken together, these factors persuade us that the             oppose the state’s motion for reconsideration. It was
prosecutor’s statement, when viewed in light of the entire        incumbent on the trial court to reject the motion as untimely,
trial, did not deprive Abela of his due process rights.           if it saw fit to do so.

F. Ineffective Assistance of Trial Counsel                        G. Ineffective Assistance of Appellate Counsel

   Abela’s next claim is that his trial counsel was ineffective     Lastly, Abela contends that his appellate counsel was
for failing to object to the untimeliness of the prosecution’s    ineffective for failing to raise on direct appeal in the state
motion for reconsideration, which sought to reinstate the         court the full set of claims presented in his habeas petition –
concealed weapon charge, previously dismissed by the trial        that is, the claims we have discussed to this point. Abela
judge. To establish an ineffective assistance of counsel claim,   points to the alleged ineffective assistance of appellate
a habeas petitioner must show that: (1) counsel’s performance     counsel as “cause” for any procedural default of his claims in
was deficient; and (2) counsel’s deficient performance            state court. See Murray v. Carrier, 477 U.S. 478, 488 (1986)
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687       (holding that if a petitioner can show that he received
(1984).                                                           ineffective assistance of appellate counsel, this may excuse
                                                                  his procedural default of claims in the state court).
No. 00-2430                              Abela v. Martin     25    26    Abela v. Martin                              No. 00-2430

  We need not determine whether the alleged ineffective             ______________________________________________
assistance of appellate counsel would constitute “cause” for
any procedural default because, as we determined in Part II,         CONCURRING IN PART, DISSENTING IN PART
B. above, Abela’s habeas claims were not procedurally               ______________________________________________
defaulted in the state courts.
                                                                     SILER, Circuit Judge, concurring in part and dissenting in
                    III. CONCLUSION                                part. I concur in all of the conclusions by the majority, except
                                                                   those conclusions that the petitioner, Kevin Mark Abela, was
  On the basis of our determinations above – (1) that we are       denied his constitutional right to counsel under the Fifth
not precluded from considering Abela’s claims on the ground        Amendment, and that a writ of habeas corpus should issue
of procedural default and (2) that statements made by Abela        unless the state elects to retry Abela for the same charges.
and admitted at trial were unconstitutionally elicited by police   The constitutional violation which the majority finds is the
after he invoked his right to counsel – we REVERSE the             introduction at trial of a statement allegedly made in violation
district court’s judgment and REMAND to the district court         of Miranda v. Arizona, 384 U.S. 436 (1966). I would find
with instructions to grant the writ of habeas corpus, unless the   that there was no constitutional violation. Therefore, I would
state elects to retry Ablea within ninety days of the date of      affirm the district court in denying the writ.
this opinion’s entry.
                                                                      Abela’s statement to the officers before he was advised of
                                                                   his Miranda rights was “maybe I should talk to an attorney by
                                                                   the name of William Evans.” Sgt. Michael McCabe offered
                                                                   to call Evans or another attorney, but before Sgt. McCabe
                                                                   attempted to call Evans or anyone else, he proceeded to
                                                                   advise Abela of his Miranda rights. It was at this point when
                                                                   Abela said that he would tell them everything, and did not ask
                                                                   for the right to consult with Evans or any other attorney. As
                                                                   the district court found, Abela’s statements do not constitute
                                                                   an unequivocal request for counsel as required under Davis v.
                                                                   United States, 512 U.S. 452, 458-59 (1994). In Davis, the
                                                                   accused made a similar request that “maybe I should talk to
                                                                   a lawyer.” The Court held that was not an unambiguous
                                                                   request for counsel. I would not hold that a specific naming
                                                                   of an attorney in this case distinguishes the facts sufficient to
                                                                   find a Miranda violation. See Ledbetter v. Edwards, 35 F.3d
                                                                   1062, 1070 (6th Cir. 1994) (holding that the statement that “It
                                                                   would be nice” to have an attorney was not a clear and
                                                                   unambiguous request for counsel). Although the majority
                                                                   opinion relates that Abela handed Sgt. McCabe a business
                                                                   card for Evans and that McCabe left the room with the card to
                                                                   phone the attorney, the district court did not find those facts.
No. 00-2430                             Abela v. Martin     27

Instead, Abela testified that the card was in his wallet, which
was in another room. He said that McCabe left the room after
he told him about the card, but McCabe did not say anything
about the card nor the attorney after that. Sgt. McCabe
testified that Abela pulled out a business card from his wallet
and showed it to McCabe, but McCabe did not say anything
about leaving the room with the card to phone the attorney.
Therefore, I would find that the facts determined by the
district court below were not clearly erroneous, and I would
uphold the decision by the district court that no Miranda
violation occurred.
  In sum, I would affirm the decision of the district court in
denying the writ of habeas corpus.
