                        RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0166p.06

                  UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 JAMES MCKINNEY,                                       ┐
                                Petitioner-Appellee,   │
                                                       │
                                                       │
       v.                                               >     No. 15-1374
                                                       │
                                                       │
 BONITA J. HOFFNER, Warden,                            │
                              Respondent-Appellant.    │
                                                       ┘
                        Appeal from the United States District Court
                       for the Eastern District of Michigan at Detroit.
                  No. 2:13-cv-15284—Marianne O. Battani, District Judge.

                                Argued: December 10, 2015

                              Decided and Filed: July 19, 2016

            Before: BATCHELDER, McKEAGUE, and STRANCH, Circuit Judges.
                               _________________

                                        COUNSEL

ARGUED: Jerrold E. Schrotenboer, JACKSON COUNTY PROSECUTOR’S OFFICE,
Jackson, Michigan, for Appellant. Brett DeGroff, STATE APPELLATE DEFENDER OFFICE,
Lansing, Michigan, for Appellee. ON BRIEF: Jerrold E. Schrotenboer, JACKSON COUNTY
PROSECUTOR’S OFFICE, Jackson, Michigan, for Appellant. Brett DeGroff, Valerie R.
Newman, STATE APPELLATE DEFENDER OFFICE, Lansing, Michigan, for Appellee.

     McKEAGUE, J., delivered the opinion of the court in which BATCHELDER, J., joined.
STRANCH, J. (pp. 15–16), delivered a separate dissenting opinion.




                                              1
No. 15-1374                             McKinney v. Hoffner                            Page 2


                                       _________________

                                            OPINION
                                       _________________

       McKEAGUE, Circuit Judge. James McKinney shot and killed his partially paralyzed
roommate, James Harper. McKinney then fled in Harper’s van, carrying Harper’s wallet and in
possession of the gun he used to kill Harper. After McKinney was arrested, he confessed to
murdering Harper. McKinney successfully moved to suppress the confession before trial, but on
an interlocutory appeal the Michigan Supreme Court reversed, holding that McKinney did not
unequivocally request counsel.      McKinney was convicted of first degree murder after his
videotaped confession was admitted and played at trial. McKinney now seeks habeas corpus
relief in federal court, arguing that the Michigan Supreme Court erred because McKinney
unequivocally requested counsel and the police continued to interrogate him. The district court
agreed and conditionally granted McKinney’s habeas petition pending a new trial, but the district
court failed to show the requisite deference afforded to state court decisions on habeas review.
Because the Michigan Supreme Court’s decision was not an unreasonable application of clearly
established federal law, we reverse the grant of habeas relief.

                                                 I

       Factual Background. In 2007, James Harper, who was around 70 years old at the time,
allowed James McKinney to move into his home in exchange for doing various chores around
the house. Harper’s caretaker, Marcia Wilkinson, also lived there. According to Wilkinson,
McKinney and Harper would sometimes argue, and at one point McKinney voiced a desire to
move out. On October 22, 2009, Wilkinson went to stay with her mother, leaving Harper and
McKinney by themselves. After Wilkinson left, McKinney shot Harper in the face at point-
blank range while Harper slept, killing him. McKinney fled in Harper’s van, and police soon
arrested him in Illinois following a traffic stop during which McKinney claimed to be Harper.
The officers searched the van and discovered two handguns—including the one used to kill
Harper—a handgun magazine, and Harper’s wallet.
No. 15-1374                                    McKinney v. Hoffner                                       Page 3


        Detectives from the Hillsdale County Sheriff’s Department came to Illinois to investigate
Harper’s death. On October 29, 2009, Detective Mark Hodshire interviewed McKinney prior to
extradition to Michigan.          Hodshire advised McKinney of his Miranda rights and began
questioning him. Soon after, the following exchange occurred:

        Detective Hodshire: So, you know why I’m here to talk to you, right?
        James McKinney:            Yeah, yeah.
        Hodshire:                  So, I’m here to get your side of the story of what happened
                                   and why. Okay. When we do investigations, we
                                   understand that things happen for certain reasons and some
                                   of those reasons we don’t understand . . . so that’s why I
                                   wanted to talk with you today to get your side of the story
                                   of what happened.
        McKinney:                  Well if you don’t mind, I just assume wait until I get a
                                   public defender or whatever.1
        Hodshire:                  Well that’s fine, but like I said . . . .
        McKinney:                  We can talk over all the other circumstances.

R. 1-3, McKinney Interview Tr. at 6–7, Page ID 58–59. McKinney went on to confess to
Harper’s murder. He was then extradited and ultimately convicted in the Hillsdale County
Circuit Court.

        Procedural Background.             McKinney was charged with three offenses: first-degree
premeditated murder, unlawfully driving away an automobile, and possession of a firearm during
the commission of a felony. The trial court granted McKinney’s pre-trial motion to suppress his
confession. The State filed an interlocutory appeal, and the Michigan Court of Appeals affirmed
the trial court’s decision. People v. McKinney, No. 296455, 2010 WL 4226761, at *2–3 (Mich.
Ct. App. Oct. 26, 2010). But the Michigan Supreme Court issued a one-paragraph reversal in a
6-1 decision, concluding that McKinney’s two statements were not an unequivocal request for an
attorney. People v. McKinney, 794 N.W.2d 614, 614–15 (Mich. 2011).

        The prosecution relied heavily on McKinney’s confession at trial, playing it almost in full
and mentioning it often in opening and closing arguments. The jury found McKinney guilty of

        1
          We read this as “Well if you don’t mind, I’d just as soon wait until I get a public defender or whatever.”
See R. 1-2, Motion to Suppress Tr. at 10, Page ID 50.
No. 15-1374                               McKinney v. Hoffner                             Page 4


all three charges, and the state trial court sentenced him to life in prison for the murder
conviction and lesser terms for the other crimes. McKinney appealed on the ground that his
confession was inadmissible, but the Michigan Court of Appeals affirmed the judgment because
the Michigan Supreme Court had settled the issue in its earlier order. People v. McKinney, No.
305093, 2012 WL 4039706, at *1 (Mich. Ct. App. Sept. 13, 2012). The Michigan Supreme
Court denied McKinney’s request for leave to appeal. People v. McKinney, 826 N.W.2d 729
(2013).

          McKinney then filed a habeas petition in district court. He contended that the Michigan
Supreme Court unreasonably applied clearly established federal law in ruling that he failed to
unequivocally invoke his right to counsel. He also asserted that this error had a substantial effect
in determining the jury’s verdict. The district court agreed and granted a conditional writ of
habeas corpus under 28 U.S.C. § 2254, ordering that the writ be granted unless the state retries
McKinney within 90 days without the use of his confession. McKinney v. Hoffner, No. 2:13-
CV-15284, 2015 WL 1218527 (E.D. Mich. Mar. 17, 2015). Respondent (the State) appeals that
decision.

                                                  II

          We review the district court’s decision to grant a petition for a writ of habeas corpus de
novo. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000). Habeas review of state court
decisions is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254(d). As an initial matter, we must determine whether AEDPA even applies here.

          The Michigan Supreme Court held, in a one-paragraph opinion, that McKinney’s two
statements were not an unequivocal request for counsel:

          The defendant’s statement that he would “just as soon wait” until he had an
          attorney before talking to the police [Statement 1], followed immediately by his
          statement that he was willing to discuss the “circumstances” [Statement 2], was
          not an unequivocal assertion of the right to counsel or a statement declaring an
          intention to remain silent.

People v. McKinney, 794 N.W.2d at 614–15 (internal citation omitted). However, the crux of
this case is whether Detective Hodshire’s comment “Well that’s fine, but like I said” was
No. 15-1374                            McKinney v. Hoffner                              Page 5


interrogation. If Hodshire’s statement was interrogation, then the Michigan Supreme Court
improperly used McKinney’s second statement in determining that he did not unequivocally
request counsel. See Smith v. Illinois, 469 U.S. 91, 100 (1984) (holding that, after a suspect
unambiguously requests counsel, the suspect’s “responses to further interrogation may not be
used to cast retrospective doubt on the clarity of the initial request”). The Michigan Supreme
Court’s decision did not explicitly address whether Hodshire’s comment was interrogation.
However, the State asserts that the Michigan Supreme Court must have concluded it was not,
because only then could the court have used Statement 1 and Statement 2 together to decide that
McKinney did not unequivocally request counsel. We agree.

       “When a federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the contrary.” Harrington v. Richter,
562 U.S. 86, 99 (2011); see also Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013). Thus,
AEDPA “does not require a state court to give reasons before its decision can be deemed to have
been adjudicated on the merits.” Johnson, 133 S. Ct. at 1094 (internal citation and quotation
marks omitted). The presumption also applies “when a state-court opinion addresses some but
not all of a defendant’s claims.” Id. (emphasis added). “This is so whether or not the state court
reveals which of the elements in a multipart claim it found insufficient, for § 2254(d) applies
when a ‘claim,’ not a component of one, has been adjudicated.” Harrington, 562 U.S. at 98.

       Applying this legal presumption, we hold that the Michigan Supreme Court determined
that Hodshire’s statement was not interrogation. Under Smith, the court could not consider
McKinney’s second statement if Hodshire’s statement was interrogation. And interrogation was
the key question throughout the state court proceedings. The state trial court granted Hodshire’s
motion to suppress after finding that Hodshire’s statement was continued interrogation under
Rhode Island v. Innis, 446 U.S. 291 (1980), and that the police therefore violated Smith. The
Michigan Court of Appeals affirmed and specifically addressed whether Hodshire’s statement
was interrogation, citing both Smith and Innis. See People v. McKinney, 2010 WL 4226761, at
*2–3. The State also asserted in its briefs that both parties cited the Smith rule to the Michigan
Supreme Court, and noted at oral argument that the only argument made to the Michigan
No. 15-1374                            McKinney v. Hoffner                              Page 6


Supreme Court was whether Hodshire’s statement was interrogation. With that record before it,
the Michigan Supreme Court was well aware that Smith prohibited the use of McKinney’s
second statement if Hodshire’s statement was interrogation. So while McKinney argues that the
Michigan Supreme Court never decided this question, he has failed to provide any basis to
overcome the presumption that the court did, implicitly, do so.

       Because we presume that the Michigan Supreme Court decided that Hodshire’s statement
was not interrogation, see Johnson, 133 S. Ct. at 1096, and McKinney has provided nothing that
would convince us otherwise, we must analyze that decision under the deferential standard
imposed by AEDPA.

                                               III

       Under AEDPA, we review a state-court merits adjudication only to determine whether it
“resulted in a decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). As the
Supreme Court has repeatedly and “recently reminded the Sixth Circuit,” this standard is
“difficult to meet.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014) (internal quotation marks
omitted). The parties agree that the Michigan Supreme Court’s decision was not “contrary to”
federal law, so the relevant question is whether that decision was an “unreasonable application”
of clearly established Supreme Court precedent. On habeas review, clearly established law
includes “only the holdings, as opposed to the dicta,” of Supreme Court decisions. Id. (internal
quotation marks and citations omitted). A habeas petitioner is thus required to “show that the
state court’s ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.”     Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (quoting
Harrington, 562 U.S. at 103). “If this standard is difficult to meet, that is because it was meant
to be.” Harrington, 562 U.S. at 102.

       AEDPA reflects a “presumption that state courts know and follow the law.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam). A state court’s decision is not an unreasonable
application of clearly established law unless it is “objectively unreasonable, not merely wrong;
No. 15-1374                             McKinney v. Hoffner                            Page 7


even clear error will not suffice.” White, 134 S. Ct. at 1702 (citation and quotation marks
omitted). Congress imposed such a high bar because habeas relief is an “extraordinary remedy,”
Bousley v. United States, 523 U.S. 614, 621 (1998), under which “state-court decisions [are]
given the benefit of the doubt.” Woodford, 537 U.S. at 24. Habeas review is thus intended to
serve only as “a guard against extreme malfunctions in the state criminal justice systems, not a
substitution for ordinary error correction through appeal.” Harrington, 562 U.S. at 102–03
(internal quotation marks and citation omitted). We may not grant relief so long as “fairminded
jurists could disagree” on the correctness of the state court’s decision. Yarborough v. Alvarado,
541 U.S. 652, 664 (2004).

                                                   IV

       With AEDPA’s deferential standard in mind, we must determine whether the Michigan
Supreme Court unreasonably applied clearly established Supreme Court precedent in deciding
(1) that Detective Hodshire’s statement was not interrogation; and (2) that McKinney’s two
statements, taken together, were not an unequivocal request for counsel.

                                                   A

       We turn first to interrogation. Miranda v. Arizona, 384 U.S. 436, 473–74 (1966), and
Edwards v. Arizona, 451 U.S. 477, 484–85 (1981), require police officers to cease questioning a
suspect who unequivocally invokes his right to counsel. Police cannot use statements made after
the suspect requests counsel if those subsequent statements are the result of further police-
initiated interrogation. Smith, 469 U.S. at 100.

       The Supreme Court defined “interrogation” in Rhode Island v. Innis, 446 U.S. 291. In
Innis, police officers placed the defendant under arrest for kidnapping, robbery, and murder,
advised him of his Miranda rights, and took him to the police station. Id. at 293–94. The
defendant stated that he understood his Miranda rights and wanted to speak with an attorney. Id.
at 294. On the way to the station, however, the officers spoke to each other about the murder
weapon in front of the defendant. Id. One officer testified that they were “talking back and
forth” and commented “that I frequent this area while on patrol and there’s a lot of handicapped
children running around [because a school for handicapped children was nearby], and God forbid
No. 15-1374                             McKinney v. Hoffner                               Page 8


one of them might find a weapon with shells and they might hurt themselves.” Id. at 294–95.
The second officer “more or less concurred” with the sentiment, and at some point the defendant
“interrupted the conversation” and showed the officers where he had hidden the gun. Id.

       The Supreme Court held that the officers’ statements regarding the shotgun were not
interrogation. The Court defined interrogation to refer “not only to express questioning, but also
to 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.” Id. at 301. That definition includes “either express questioning or its functional
equivalent.” Id. at 300–01. The Supreme Court noted that interrogation “must reflect a measure
of compulsion above and beyond that inherent in custody itself.” Id. at 300. The concern in
Miranda was that the “interrogation environment” created by interrogation and custody would
“subjugate the individual to the will of his examiner” and thereby “undermine the privilege
against compulsory self-incrimination.” Id. at 299 (quoting Miranda, 384 U.S. at 457–58).

       The Supreme Court acknowledged the “subtle compulsion” inherent in the officers’
conversation, but held that no interrogation occurred.          “Given the fact that the entire
conversation . . . consisted of no more than a few off hand remarks,” the Court could not say that
it was “reasonably likely that Innis would so respond.” Id. at 303. The police did not carry on a
“lengthy harangue” in the presence of the suspect, and the officers’ comments were not
particularly “evocative.” Id. As such, the defendant “was not subjected by the police to words
or actions that the police should have known were likely to elicit an incriminating response.” Id.

       Innis clearly establishes that interrogation includes express questioning or its functional
equivalent—any words or actions that police should know are reasonably likely to elicit an
incriminating response.    Id. at 300–02.    The Supreme Court has provided little additional
guidance on what constitutes the functional equivalent of express questioning, although it has
suggested that interrogation may be limited to “compelling influences, psychological ploys, or
direct questioning.” Arizona v. Mauro, 481 U.S. 520, 529 (1987) (holding that allowing suspect
to speak with his wife in the presence of a police officer was not interrogation, as it did not fall
into any of these categories). Innis thus provides a very general rule, and the Supreme Court has
repeatedly emphasized that “[t]he more general the rule, the more leeway courts have in reaching
No. 15-1374                             McKinney v. Hoffner                                Page 9


outcomes in case-by-case determinations.” Yarborough, 541 U.S. at 664; see also Parker v.
Matthews, 132 S. Ct. 2148, 2155 (2012).

       Was Hodshire’s partial statement, without more, reasonably likely to elicit an
incriminating response? There certainly is no sense that McKinney’s will was “subjugated” to
Hodshire’s. Miranda, 384 U.S. at 457–58. Nor does Hodshire’s statement seem to rise to the
level of “compelling influences, psychological ploys, or direct questioning.” Mauro, 481 U.S. at
529.   Even if we read Hodshire’s words to refer to his previous comments about getting
McKinney’s side of the story, Innis does not clearly establish that an uncompleted sentence
fragment like Hodshire’s, which only might refer to a previous line of questioning, is
interrogation. The Supreme Court has repeatedly reminded us that “where the precise contours
of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner’s
claims.” Woods, 135 S. Ct. at 1377 (citations and quotation marks omitted). We are limited to
Innis’s general rule defining interrogation, and despite the summary nature of the Michigan
Supreme Court’s ruling, we must afford the court more leeway in deciding whether statements
such as Hodshire’s are interrogation. See Parker, 132 S. Ct. at 2155.

       Innis itself provides little support for McKinney’s argument.          Hodshire’s statement
certainly does not rise to the level of the examples cited in Innis as the “functional equivalent” of
express questioning—reverse line-ups, positing the guilt of the suspect, and the like. See Innis,
446 U.S. at 299. Even the holding of the case cuts against McKinney. The Supreme Court
decided—on de novo review, no less—that the officers’ discussion of the missing shotgun was
not interrogation. McKinney must overcome the much more deferential standard of habeas
review to prevail here. Granted, Innis could be distinguished because the conversation there
occurred between two police officers and was not expressly directed toward the suspect. Id. at
294–95. Hodshire’s interrupted statement was, in contrast, directed to McKinney. We must
consider these differences, however, in the context of the Supreme Court’s cautioning us to avoid
“equating ‘subtle compulsion’ with interrogation.” Id. at 303. In light of Innis’s general rule and
its outcome, we conclude that the Michigan Supreme Court’s decision was not such an
unreasonable application of Innis that no fairminded judge could agree with it. See Harrington,
562 U.S. at 103.
No. 15-1374                             McKinney v. Hoffner                             Page 10


       In arguing to the contrary, McKinney focuses on only a portion of Hodshire’s comment,
asking us to read far too much into four innocuous words: “but like I said.” McKinney would
have us both assume that Hodshire is referring back to his earlier statement and treat Hodshire’s
interrupted and unfinished sentence as though he had repeated his entire introductory statement
all over again. His argument requires too great a leap. While it appears Hodshire may have been
referring to his previous statement and may even have hoped to continue along the same lines,
McKinney interrupted him before he could do so. The question before us is not whether
Hodshire’s previous statement was interrogation—though it was headed in that direction. The
question is not even whether a reasonable officer would have expected “but like I said” to elicit
an incriminating response—perhaps such an officer would. The question under AEDPA is
whether any fairminded jurist could conclude that Hodshire’s four-word comment was not
interrogation. Considering the utter lack of compulsion or compelling influence in Hodshire’s
comment, we can hardly treat the Michigan Supreme Court’s refusal to characterize the comment
as interrogation as an “extreme malfunction[] in the state criminal justice system[].” Harrington,
562 U.S. at 102. Under AEDPA’s deferential standard, the Michigan Supreme Court did not
unreasonably apply Innis.

       Were this case before us on direct review instead of habeas, it would be a closer call. But
this is habeas review, and therein lies the problem with the district court’s opinion—it reads as
though this case were on direct review. The district court, like McKinney, read too much into
Hodshire’s statement. See McKinney, 2015 WL 1219527, at *6. More problematically, the
district court afforded no deference to the Michigan Supreme Court’s decision, much less a
“presumption that state courts know and follow the law.” Woodford, 537 U.S. at 24. The district
court cited AEDPA as a precursor and mentioned on occasion that the state court acted
“unreasonably,” but it neglected to explain why, under AEDPA’s congressionally mandated
deferential standard, McKinney is entitled to relief.

       The district court inexplicably cited two state court decisions to support its conclusion
that Hodshire’s statement was interrogation. McKinney, 2015 WL 1219527, at *6. We may not
grant habeas relief based on lower-court precedent, as those decisions “do[] not constitute
‘clearly established Federal law, as determined by the Supreme Court.’” Glebe v. Frost, 135 S.
No. 15-1374                            McKinney v. Hoffner                              Page 11


Ct. 429, 431 (2014) (quoting 28 U.S.C. § 2254(d)(1)). Moreover, the cases the district court
cited are not helpful on their own terms. In one, police resumed interrogation by engaging in an
entire line of questioning with the suspect. State v. Kerby, 833 N.E.2d 757, 767, 769 (Ohio Ct.
App. 2005). In the other, the officer asked the suspect if he wanted to confess. State v. Juranek,
844 N.W.2d 791, 801 (Neb. 2014). The fact that the district court disagreed with the Michigan
Supreme Court does not justify its conclusion that the Michigan Supreme Court’s decision was
objectively unreasonable. “[A] federal habeas court may not issue the writ simply because the
court concludes in its independent judgment that the state-court decision applied [a Supreme
Court case] incorrectly.” Woodford, 537 U.S. at 24–25.

       McKinney has failed to show that the Michigan Supreme Court committed an error
“beyond any possibility for fairminded disagreement.” Woods, 135 S. Ct. at 1376. Accordingly,
the Michigan Supreme Court’s decision that Hodshire’s statement was not interrogation was not
an unreasonable application of clearly established Supreme Court precedent.

                                                B
       We now turn to the Michigan Supreme Court’s decision that McKinney’s two statements,
taken together, were not an unequivocal request for counsel. People v. McKinney, 794 N.W.2d
at 614–15 (citing Davis v. United States, 512 U.S. 452, 457 (1994)).

       Davis represents the governing clearly established federal law. In that case, the Supreme
Court held that a suspect “must unambiguously request counsel.” Davis, 512 U.S. at 459. But
“if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood only that the suspect might be
invoking the right to counsel, our precedents do not require the cessation of questioning.” Id. at
459. The Davis Court held that “Maybe I should talk to a lawyer” was not an unequivocal
request for counsel. In reaching that decision, the Court declined “to extend Edwards and
require law enforcement officers to cease questioning immediately upon the making of an
ambiguous or equivocal reference to an attorney.” Id.

       Once again, we have a general rule that provides the Michigan Supreme Court “more
leeway” to make a case-by-case determination. Yarborough, 541 U.S. at 664. Even with
No. 15-1374                             McKinney v. Hoffner                           Page 12


Hodshire’s interjection, McKinney’s two statements came in quick succession—the video of the
confession confirms that only two seconds elapsed between the statements. When McKinney
said he wanted to wait for an attorney but followed by saying he wanted to talk, a “reasonable
officer” could easily have “understood only that [McKinney] might be invoking the right to
counsel.” Davis, 512 U.S. at 459. At a minimum, a fairminded jurist could easily come to that
conclusion.

       Standing alone, McKinney’s first statement may have been an unequivocal request for
counsel. But McKinney’s statement was not made in isolation. McKinney’s statements, only
two seconds apart, said that he wanted an attorney and that he wanted to talk. Considering the
deference we must afford state courts under AEDPA, we hold that a fairminded judge could
conclude that McKinney failed to unequivocally request counsel.

                                                V

       The dissent suggests a different analytical framework. It argues that, once a suspect has
made any statement that could be construed as an unequivocal request for counsel, a subsequent
statement, even one made immediately after without intervening interrogation, can only be used
to determine whether the suspect waived the right to counsel—not whether the suspect
unequivocally requested counsel in the first place.

       The dissent bases its argument on the State’s counsel’s apparent concession at oral
argument that McKinney’s first statement was an unequivocal request for counsel. But no one
has disputed that McKinney’s first statement, standing alone, would be an unequivocal request
for counsel. The State clarified—at oral argument and in its briefs—that McKinney did not
unequivocally request counsel because of the full import of both of his statements. Thus, the
interrogation question is paramount because, under established Supreme Court precedent, the
Michigan Supreme Court could use both statements only if Hodshire’s comment was not
interrogation.

       McKinney’s argument has always been that the Michigan Supreme Court could not use
his second statement because Hodshire’s comment was interrogation. McKinney never made
this waiver argument—not before the trial court, not before the Michigan Court of Appeals, not
No. 15-1374                             McKinney v. Hoffner                              Page 13


before the Michigan Supreme Court, not before the district court, and not in his briefs on
appeal—until the dissent raised it at oral argument. The parties did not brief it and were not
prepared to present it, and we normally consider arguments waived if they are not raised in the
district court or made on appeal. See Fed. Trade Comm’n v. E.M.A. Nationwide, Inc., 767 F.3d
611, 630 (6th Cir. 2014); S.H.A.R.K. v. Metro Parks Serving Summit Cty., 499 F.3d 553, 564–65
(6th Cir. 2007) (citing United States v. Reed, 167 F.3d 984, 993 (6th Cir. 1999)).

       Even setting that rule aside, the dissent’s approach is inconsistent with AEDPA’s
underlying theme of comity—that we should defer to the reasonable decisions of state courts—
and it would bypass AEDPA deference. We would discard any concern for comity if we decided
sua sponte to grant habeas relief based on an argument the Michigan Supreme Court never saw,
particularly when that court’s decision was not an unreasonable application of Supreme Court
precedent. We are limited, under AEDPA, to Smith’s holding: “We hold only that . . . an
accused’s postrequest responses to further interrogation may not be used to cast retrospective
doubt on the clarity of the initial request itself.” 469 U.S. at 100 (emphasis added). That holding
does not answer whether a suspect’s back-to-back statements can be used to determine if he
unambiguously requested counsel when the second statement is not a response to “further
interrogation.”   The Supreme Court chose “not [to] decide the circumstances in which an
accused’s request for counsel may be characterized as ambiguous or equivocal” in Smith, id. at
99–100, and established the test for an unequivocal request for counsel in Davis, 512 U.S. at 456.
We have held above that the Michigan Supreme Court’s decision was not an unreasonable
application of Davis. Under AEDPA, our review stops there.

       The dissent’s approach is not without merit.       McKinney made two statements, and
Hodshire spoke in between. McKinney’s statements could be segmented, as the dissent prefers,
into a request for counsel and a potential waiver. But, as our analysis above and the previous
decisions in this case show, that is not the only way to view McKinney’s statements. That makes
the dissent’s view the exact type of “fairminded disagreement” which requires deference to state
courts under AEDPA. White, 134 S. Ct. at 1702 (quoting Harrington, 562 U.S. at 103).

       Our role on habeas review is to evaluate a state court’s decision, and we must deny relief
unless it was “so lacking in justification that there was an error well understood and
No. 15-1374                                   McKinney v. Hoffner                                       Page 14


comprehended in existing law beyond any possibility for fairminded disagreement.” Id. The
Michigan Supreme Court’s decision to analyze this case as presented by the parties, using
interrogation instead of waiver, was not such an error.2

                                                       VI

        Because the Michigan Supreme Court’s decision was not an unreasonable application of
clearly established federal law, we REVERSE. The case is REMANDED to the district court
for entry of an order denying the habeas petition.




        2
           The dissent does not conduct a waiver analysis or reach a conclusion as to whether McKinney would be
entitled to relief. While we also decline to conduct a full waiver analysis, we fail to see how it would change the
outcome. If a suspect who indicated he didn’t want to talk without a lawyer later tells police “we can talk about
things,” that suspect would appear to be indicating a willingness to speak without a lawyer.
No. 15-1374                             McKinney v. Hoffner                                Page 15


                                       _________________

                                            DISSENT
                                       _________________

       STRANCH, Circuit Judge, dissenting. “Where nothing about the request for counsel or
the circumstances leading up to the request would render it ambiguous, all questioning must
cease. In these circumstances, an accused’s subsequent statements are relevant only to the
question whether the accused waived the right he had invoked.” Smith v. Illinois, 469 U.S. 91,
98 (1984). This is not a case about an ambiguous invocation of counsel. As the government
conceded at oral argument, McKinney’s statement that he would “just [as soon] wait until I get a
public defender or whatever” was a clear invocation of his constitutional right.            Because
McKinney thus unequivocally invoked the right to counsel, I would hold that only one question
remains—whether or not McKinney validly waived that right. See Edwards v. Arizona, 451 U.S.
477, 484–85 (1981); Smith, 469 U.S. at 94–95. I therefore respectfully dissent.

       In Edwards, the Supreme Court articulated a “rigid prophylactic rule” governing accused
persons in custody. Davis v. United States, 512 U.S. 452, 458 (1994) (citation omitted). This
rule “embodies two distinct inquiries. First, courts must determine whether the accused actually
invoked his right to counsel. Second, if the accused invoked his right to counsel, courts may
admit his responses to further questioning only on finding that he (a) initiated further discussions
with the police, and (b) knowingly and intelligently waived the right he had invoked.” Smith,
469 U.S. at 95 (citations omitted). “Invocation and waiver are entirely distinct inquiries, and the
two must not be blurred by merging them together.” Id. at 98. Here, focusing on whether the
police continued to interrogate McKinney as opposed to whether he validly waived his asserted
right does just that and is thus an unreasonable application of Supreme Court precedent.

       The Supreme Court emphasized in Smith v. Illinois that once an accused requests
counsel, as McKinney undisputedly did here, “[n]o authority, and no logic, permits the
interrogator to proceed . . . on his own terms and as if the defendant had requested nothing, in the
hope that the defendant might be induced to say something casting retrospective doubt on his
initial statement that he wished to speak through an attorney or not at all.” Id. at 99 (second
alteration in original) (citation omitted). This prohibition is not limited to further interrogation.
No. 15-1374                             McKinney v. Hoffner                               Page 16


Case law is clear that police may not “badger[ ] a defendant into waiving his previously asserted”
right to counsel. McNeil v. Wisconsin, 501 U.S. 171, 177 (1991). “Once a suspect asserts the
right, not only must the current interrogation cease, but he may not be approached for further
interrogation ‘until counsel has been made available to him[.]’” Id. at 176–77 (emphasis added).
“If the police do subsequently initiate an encounter in the absence of counsel . . . the suspect’s
statements are presumed involuntary and therefore inadmissible[.]” Id. at 177.

        The Supreme Court has emphasized repeatedly that a “suspect must unambiguously
request counsel” and that “‘a statement either is such an assertion of the right to counsel or it is
not.’” Davis, 512 U.S. at 459 (quoting Smith, 469 U.S. at 97–98). The government concedes
that McKinney’s first statement was. Consequently, his “subsequent statements are relevant only
to the question whether [he] . . . waived the right he had invoked.” Smith, 469 U.S. at 98; see
also id. (“[A] valid waiver ‘cannot be established by showing only that [the accused] responded
to further police-initiated custodial interrogation.’” (second alteration in original) (quoting
Edwards, 469 U.S. at 484)). The question of waiver has not been fully briefed by the parties.
Because I believe that it is the waiver analysis that must be undertaken in this case, however,
I respectfully dissent.
