                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 19a0176p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 VAUGHN MITCHELL,                                      ┐
                               Petitioner-Appellant,   │
                                                       │
                                                        >      No. 17-2444
        v.                                             │
                                                       │
                                                       │
 DUNCAN MACLAREN, Warden,                              │
                              Respondent-Appellee.     │
                                                       ┘

                        Appeal from the United States District Court
                        for the Eastern District of Michigan at Flint.
                    No. 4:15-cv-10356—Linda V. Parker, District Judge.

                                   Argued: May 9, 2019

                            Decided and Filed: August 1, 2019

             Before: SUHRHEINRICH, BUSH, and READLER, Circuit Judges.

                                    _________________

                                        COUNSEL

ARGUED: Angela Dunay, Seth Yost, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant. Scott R. Shimkus, OFFICE OF THE MICHIGAN
ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Angela Dunay, Seth
Yost, Stephen L. Braga, UNIVERSITY OF VIRGINIA SCHOOL OF LAW, Charlottesville,
Virginia, for Appellant. Scott R. Shimkus, Andrea M. Christensen-Brown, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                    _________________

                                         OPINION
                                    _________________

       JOHN K. BUSH, Circuit Judge. Vaughn Mitchell was convicted in Wayne County,
Michigan, of first-degree murder, carjacking, and felony firearm possession for chasing and
 No. 17-2444                                Mitchell v. MacLaren                           Page 2


beating Michael Jorden, shooting and killing him, and then stealing his car. In his habeas
petition, pursuant to 28 U.S.C. § 2254, Mitchell raises two issues: (1) whether the interrogating
officer (Detective Collins) misled Mitchell to believe that he did not have a right under the Fifth
Amendment to have counsel present during interrogation and misstated the availability of a
defense attorney in the county where Mitchell was interrogated; and (2) whether Detective
Collins provided Miranda1 warnings to Mitchell in “mid-stream,” in violation of Supreme Court
case law discrediting this two-step technique.

       The manner in which Collins interacted with Mitchell regarding the right to counsel is
troubling.    However, the Michigan Supreme Court’s decision—that the Miranda warnings,
considered as a whole, adequately advised Mitchell of his rights—was not contrary to or an
unreasonable application of Supreme Court precedent. Accordingly, we AFFIRM the district
court’s denial of Mitchell’s § 2254 petition.

                                            I. BACKGROUND

       On June 21, 2008, Mitchell and Jorden got into a dispute over the ownership of a gun,
resulting in Jorden’s death.

       According to Mitchell, his father, Vaughn Brown, had given him a gun and Mitchell had,
in turn, given that weapon to Jorden. Jorden subsequently lost the gun but gave Mitchell
another, which Mitchell mistakenly thought was a replacement for the lost firearm until Jorden
asked Mitchell to pay for the new one. Before further addressing the matter with Jorden,
Mitchell called his father for “advice as to the situation.” R. 10-11, PageID 1130.

       Brown, Mitchell, and Jorden then all met, and discussions over the ownership of the gun
soon escalated into a physical altercation. Apparently fearing that Jorden would use a gun on
him, Mitchell used a pipe-like metal object given to him by Brown to strike Jorden on the head.
Jorden retreated, but Mitchell pursued, hitting him at least twice more. What happened next is
subject to dispute based on differing accounts of witnesses. The disagreement essentially boils
down to whether Brown or Mitchell shot Jorden. The jury determined that Mitchell fired a shot


       1See   Miranda v. Arizona, 384 U.S. 436 (1966).
 No. 17-2444                            Mitchell v. MacLaren                               Page 3


that killed Jorden, and then either Brown or Mitchell shot at Jorden’s body multiple times. The
jury also determined that, after the shooting, Mitchell took Jorden’s keys and money and drove
off in Jorden’s vehicle.

          Mitchell’s affidavit recounts the following as to his arrest and interrogation. He was
arrested on September 9, 2008. The following morning, Detective Collins took Mitchell out of
his cell, interrogated him for thirty minutes without reading him his Miranda rights, and then
returned him to his cell. In the afternoon, Collins again removed Mitchell from his cell and
again questioned him without Miranda warnings. During this second interrogation, Mitchell told
Collins that there had been “an incident about a gun before June 21,” R. 1-2, PageID 169
(emphasis added), prompting Collins to ask Mitchell about the night of June 21, when the
shooting happened. Mitchell responded that “there was a lot of us who were just hanging around
getting ready to go out.” Id. at PageID 169–70. When Collins pressed for further details,
Mitchell told Collins that he “would tell him what happened,” but that Mitchell would need “to
start from the beginning so he would understand.” “As soon as I said this,” according to
Mitchell’s affidavit, “Detective Collins stopped me.” Id. at PageID 170. Collins then took
Mitchell upstairs to an interrogation room to be Mirandized and video-recorded.

          Collins’s recollection of his interaction with Mitchell is somewhat different than
Mitchell’s. Collins testified at trial that he had only one conversation with Mitchell prior to the
video-recorded interrogation and that the conversation lasted approximately five minutes.
During this conversation, Collins told Mitchell he knew Mitchell was involved in a homicide
because an eyewitness linked Mitchell to the crime. Collins then asked Mitchell to confirm his
involvement, “[a]nd when he started talking about that he had some involvement, that’s when I
took him upstairs.” R. 10-10, PageID 937.

          Both Mitchell and Collins agree that once upstairs, Collins gave Mitchell a sheet
explaining Mitchell’s Miranda rights. The “Constitutional Rights Certificate of Notification”
stated:

          1. I have a right to remain silent and that I do not have to answer any questions
             put to me or make any statements.
 No. 17-2444                         Mitchell v. MacLaren                              Page 4


       2. Any statement I make or anything I say will be used against me in a Court of
          Law.
       3. I have the right to have an attorney (lawyer) present before and during the
          time I answer any questions or make any statement.
       4. If I cannot afford an attorney (lawyer), one will be appointed for me without
          cost by the Court prior to any questioning.
       5. I can decide at any time to exercise my rights and not answer any questions or
          make any statement.

R. 1-2, PageID 163. Then the following exchange occurred:

       INVESTIGATOR [Collins]: Okay, Vaughn, I’m going to give you your
       Constitutional Rights . . . . I need you to read the first Right out loud.
       MR. MITCHELL: I understand the [sic] I have the right to remain silent and that I
       do not have to answer any questions put to me or make any statements.
       INVESTIGATOR: You can read the rest to yourself. Do you understand that?
       MR. MITCHELL: I ought to just read #1 again.
       (10 min. pause—Mr. Mitchell reading his rights)
       INVESTIGATOR: Do you understand—did you finish?
       MR. MITCHELL: Uh, I do have a question. Number 4, that’s not speaking
       currently—right now?
       INVESTIGATOR: Well the question speaks for itself. If I cannot afford an
       attorney—you probably can—one will be appointed to me without cost by the
       court. That means down the line.
       MR. MITCHELL: Meaning when the court . . . .
       INVESTIGATOR: Right-right-right. Did you get to the next one?
       MR. MITCHELL: Yeah, I read five.
       INVESTIGATOR: Okay, now read that part right there.

       ....

       MR. MITCHELL: I understand that these are my rights under the law, I have not
       been threatened or promised anything. I desire or [sic] to answer any questions
       put to me at this time.
       INVESTIGATOR: Do you understand?
       MR. MITCHELL: Yeah, I understand.
       INVESTIGATOR: Okay, I want you to put your initials by 1, 2, 3, 4, 5 right
       there.
 No. 17-2444                          Mitchell v. MacLaren                              Page 5


       MR. MITCHELL: You say by 1, 2, 3, 4 and 5?
       INVESTIGATOR: Yeah, put your initials—that means you understand your
       rights as far as I’m concerned. It’s just a formality.

Id. at PageID 129–30.

       Another interrogation then commenced, during which Mitchell admitted to having been
at the scene of the murder, having beaten Jorden, and having taken money and drugs from the
victim. Mitchell denied shooting Jorden or taking his vehicle. Instead, Mitchell said that Brown
shot Jorden.

       Defense counsel filed a pre-trial motion to suppress Mitchell’s post-warning statements.
The trial court denied the motion. Following a jury trial in Wayne County Circuit Court,
Mitchell was convicted of two counts of first-degree murder (felony murder and first-degree
premeditated murder), in violation of Michigan Compiled Laws § 750.316(1)(a)–(b); carjacking,
in violation of Michigan Compiled Laws § 750.529a; and felony firearm possession, in violation
of Michigan Compiled Laws § 750.227b.

                                II. PROCEDURAL POSTURE

       Mitchell filed an appeal in the Michigan Court of Appeals, raising several claims. That
court denied relief on some of Mitchell’s claims and declined to address other claims but
remanded for an evidentiary hearing to determine, among other things, whether Collins failed to
reasonably convey to Mitchell his right to have an attorney present both before and during
questioning, and whether Collins failed effectively to advise Mitchell of his rights because he
gave a “mid-stream” Miranda warning. People v. Mitchell, No. 293284, 2011 WL 5064301
(Mich. Ct. App. Oct. 25, 2011) (per curiam). The State appealed to the Michigan Supreme
Court, which reversed the Michigan Court of Appeals’ grant of remand and found there was no
Miranda violation. People v. Mitchell, 822 N.W.2d 224 (Mich. 2012) (Mem.). The entirety of
the Michigan Supreme Court’s analysis of Mitchell’s Miranda arguments was as follows:

       The trial court did not err in denying defendant’s motion to suppress his
       confession. “[U]nlike in [Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159
       L.Ed.2d 643 (2004)], there is no concern here that police gave [defendant]
       Miranda warnings and then led him to repeat an earlier murder confession,
 No. 17-2444                            Mitchell v. MacLaren                             Page 6


         because there was no earlier confession to repeat.” In addition, “Miranda does
         not require that attorneys be producible on call, but only that the suspect be
         informed, as here, that he has the right to an attorney before and during
         questioning, and that an attorney would be appointed for him if he could not
         afford one.”

Mitchell, 822 N.W.2d at 224 (alterations in original) (first quoting Bobby v. Dixon, 565 U.S. 23,
31 (2011), then quoting Duckworth v. Eagan, 492 U.S. 195, 198 (1989)).            The Michigan
Supreme Court also remanded the case to the Court of Appeals to consider the claims that court
had declined to address; the Court of Appeals did so and denied Mitchell relief on all issues
except one that is not relevant here. People v. Mitchell, No. 293284, 2013 WL 951192 (Mich.
Ct. App. Feb. 26, 2013) (per curiam).

         After exhausting his state-court remedies, Mitchell filed a § 2254 petition in federal
district court.   The district court denied the petition on October 25, 2017, but granted a
Certificate of Appealability (“COA”) on Mitchell’s claims regarding the admissibility of his
custodial statements.

                                 III. STANDARD OF REVIEW

         Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”). Under AEDPA, if a state court has adjudicated the petitioner’s claims on the
merits, a writ of habeas corpus may not be granted unless the state court’s adjudication of the
claim:

         (1) resulted in a decision that was contrary to, or involved an unreasonable
             application of, clearly established Federal law, as determined by the Supreme
             Court of the United States; or
         (2) resulted in a decision that was based on an unreasonable determination of the
             facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         We review a district court’s denial of a habeas petition de novo. See Cleveland v.
Bradshaw, 693 F.3d 626, 631 (6th Cir. 2012). The district court’s findings of fact are reviewed
for clear error, and its legal conclusions on mixed questions of law and fact are reviewed de
novo. See Gumm v. Mitchell, 775 F.3d 345, 359–60 (6th Cir. 2014). “[T]he habeas petitioner
 No. 17-2444                            Mitchell v. MacLaren                                Page 7


has the burden of rebutting, by clear and convincing evidence, the presumption that the state
court’s factual findings were correct.” Henley v. Bell, 487 F.3d 379, 384 (6th Cir. 2007) (citing
28 U.S.C. § 2254(e)(1)) (other citations omitted).

       Mitchell does not suggest that the decision of the Michigan Supreme Court was “contrary
to” clearly established federal law. Instead, he contends that it unreasonably applied clearly
established federal law. A decision of the state court is an “unreasonable application” when “the
state court identifies the correct governing legal rule from [the Supreme] Court’s cases but
unreasonably applies it to the facts of the particular state prisoner’s case,” or “if the state court
either unreasonably extends a legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a new context where
it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). A federal court may not find a
state adjudication to be “unreasonable” “simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly.” Id. at 411.

                                           IV. DISCUSSION

       Mitchell argues that the Michigan Supreme Court unreasonably applied Miranda because
(1) Collins misled Mitchell to believe that he did not have a Fifth Amendment right to have
counsel present during interrogation and Collins misstated the availability of a defense attorney
in Detroit; and (2) Mitchell received the Miranda warnings “mid-stream,” in violation of
Supreme Court case law.

A.     Collins’s Statements

       1.      Misleading Statements: Presence of Counsel

       Mitchell takes issue with the Michigan Supreme Court’s reliance on Duckworth, in which
the warnings given to the defendant included the sentence: “We have no way of giving you a
lawyer, but one will be appointed for you, if you wish, if and when you go to court.” 492 U.S. at
198 (emphasis added). The Michigan Supreme Court noted that the Duckworth Court upheld
that warning. The Duckworth Court determined that “Miranda does not require that attorneys be
 No. 17-2444                           Mitchell v. MacLaren                               Page 8


producible on call, but only that the suspect be informed, as here, that he has the right to an
attorney before and during questioning, and that an attorney would be appointed for him if he
could not afford one.” Id. at 204. Finding that the warnings given to Mitchell satisfied this
standard, the Michigan Supreme Court found no issue with the Miranda warnings he received.

       Mitchell attempts to distinguish Duckworth. He argues that the Michigan Supreme Court
failed to consider why the Duckworth Court upheld the warnings: according to Mitchell, it was
because the Court determined that the eight sentences of warnings that included the “if and
when” sentence at issue clearly conveyed enough information to satisfy Miranda. Id. at 205.
Here, by contrast, Mitchell argues that Collins’s response regarding appointment of counsel
“down the line” deliberately “suggested [a] limitation on the right to the presence of appointed
counsel different from the clearly conveyed rights to a lawyer in general.” Appellant Br. at 24
(quoting California v. Prysock, 453 U.S. 355, 360–61 (1981)).

       But Mitchell does not take issue with the written warnings he received, and, as in
Duckworth, these initial warnings were valid. In Duckworth, as here, the valid warnings were
accompanied by further explanation from the interrogator about when the defendant could obtain
counsel. The further explanation in Duckworth (“if and when you go to court”) was in written
form, whereas here, it was follow-up in the form of Collins’s oral statement (“down the line”).
Mitchell points to no clearly established law from the Supreme Court making such a distinction
relevant or dictating a conclusion that is different from the one in Duckworth.

       Under Duckworth, therefore, the Michigan Supreme Court reasonably determined that
nothing in Collins’s response tempered or negated the previously given warnings regarding
Mitchell’s right to counsel before and during interrogation, his right to refuse to answer or stop
answering questions, or his right to appointment of counsel. Collins indicated when counsel
would be appointed, but he did not imply that the right to an attorney was tied to a future event.
See Duckworth, 492 U.S. at 204–05. True, when this exchange is considered in the totality of the
circumstances, some courts might conclude (as the Michigan Court of Appeals did) that Collins’s
statement created sufficient ambiguity to raise a question about the adequacy of the warnings.
But other jurists could reasonably conclude (as the Michigan Supreme Court did) that pursuant to
the Supreme Court’s case law, the warnings Mitchell received were adequate under Duckworth’s
 No. 17-2444                                   Mitchell v. MacLaren                                          Page 9


statement that Miranda requires “only that the suspect be informed . . . that he has the right to an
attorney before and during questioning, and that an attorney would be appointed for him if he
could not afford one.” Id. at 204.

         Under AEDPA’s deferential standard of review, this reviewing court may not grant relief
simply because it might have come to a different conclusion; rather, the state court’s application
of law must have been unreasonable. See Taylor, 529 U.S. at 386 (“Congress intended federal
judges to attend with the utmost care to state-court decisions, including all of the reasons
supporting their decisions, before concluding that those proceedings were infected by
constitutional error . . . .”).        Because the Michigan Supreme Court’s holding was not an
unreasonable application of Supreme Court precedent, we deny relief on this portion of
Mitchell’s habeas petition.

         2.       Misleading Statements: Availability of Counsel

         Mitchell also contends that the Duckworth Court acknowledged that the “if and when you
go to court” language “accurately described the procedure for the appointment of counsel in
Indiana,” 492 U.S. at 204,2 and so it was relevant to the Duckworth Court that the detective did
not lie or commit an act of deceit. See id. (“We think it must be relatively commonplace for a
suspect, after receiving Miranda warnings, to ask when he will obtain counsel. The ‘if and when
you go to court’ advice simply anticipates that question.” (footnote omitted)). In further support
of his argument that the veracity of the information given by the officer is relevant to the
analysis, Mitchell cites Prysock. There, the Supreme Court found Miranda warnings to be
sufficient when, after the interrogating officer administered them, the juvenile defendant’s
mother asked the officer a question about the availability of an attorney post-questioning, and the
officer correctly responded that the defendant had a right to an attorney now and “when he went
to court.” 453 U.S. at 357; see id. at 360–61. Mitchell argues that the officer’s response in


         2
           We note that the parties contest whether Collins’s statement about the availability of an attorney
accurately describes the law. Mitchell argues that in the county where he was interrogated, there is a defense
attorney on call twenty-four hours per day who is available to attend line-ups and interrogations. However, in the
state of Michigan, courts appoint counsel at the arraignment stage. Mich. Comp. Laws § 775.16. Regardless, we
assume for the purposes of our analysis that Collins did not accurately describe the availability of an attorney in the
jurisdiction where Mitchell was interrogated.
 No. 17-2444                             Mitchell v. MacLaren                             Page 10


Prysock clarified matters, whereas Collins’s response to Mitchell was incorrect and deceptive
because it was made to “deliberately confuse[]” Mitchell about the appointment procedure in the
county where he was interrogated. Appellant Br. at 23. Thus, according to Mitchell, the
Michigan Supreme Court “failed to account for the impact that [Collins’s] response . . . had on
the sufficiency of the warnings.” Id.

          We disagree. Jackson v. Frank, 348 F.3d 658 (7th Cir. 2003), is instructive. In that case,
the Seventh Circuit held that an officer’s giving an inaccurate description of state law while
delivering Miranda warnings is not, on its own, a basis for relief in a § 2254 petition. See
Jackson, 348 F.3d at 665. In Jackson, the defendant was arrested and advised of his Miranda
rights. Id. at 660. The defendant then asked if the detective could arrange for an attorney. Id.
The detective stated that he could not, and that he was going to end the interview. Id. The
defendant then stated that he wanted to talk, but “asked . . . if he could have a lawyer right now.”
Id. The detective understood this to mean the defendant’s “intent . . . was to have a lawyer
present there, then and there, right now, and if I could arrange for that.” Id. The detective said
no. Id.

          The Seventh Circuit acknowledged that the detective’s response about the availability of
a public defender did not accurately describe state law in Wisconsin, where the interview took
place. Id. at 661. The defendant ultimately confessed to the crime and later filed a motion to
suppress the confession, which the state court denied. Id. The defendant then filed a § 2254
petition and appealed its denial to the Seventh Circuit. Id. The crux of the defendant’s claim
was that “1) the detective misstated the availability of a public defender under Wisconsin law,
and 2) the detective’s statement may have misled [the defendant] to believe that he did not have
a right under the Fifth Amendment to have counsel present during interrogation.” Id. at 663. In
support of the second argument, the defendant argued (as does Mitchell) that the detective’s
statement was particularly misleading because, unlike in Duckworth, “in this case the police
could have provided counsel.” Id. at 664.

          The Seventh Circuit responded to each argument in turn. As to the first argument, the
court held:
 No. 17-2444                            Mitchell v. MacLaren                               Page 11


        Although the detective may have failed to follow state law by not allowing [the
        defendant] to contact the public defender’s office and mischaracterized the
        provisions of the law, review of a habeas petition by a federal court is limited to
        consideration of violations of federal law or the United States Constitution.
        Neither Miranda nor any other provision of federal law requires a public defender
        to be immediately available to a suspect during interrogation. Thus, to the extent
        [the defendant’s] petition alleges violations of protections guaranteed under state
        law that are more generous than those required under federal law, we may not
        enforce these state law provisions through habeas relief.

Id. at 663 (internal citations omitted). As to the second argument, the court continued:

        While the Court in Duckworth certainly noted the accuracy of the officer’s
        statement under state law, it is far from clear that the Court’s conclusion rested
        on that fact. The Court did not explain, for example, how, if this were so,
        differences in the provision of public defenders under state law should affect a
        petitioner’s understanding and exercise of his federal constitutional rights.

Id. at 664 (emphasis added). Thus, the Seventh Circuit held that “[g]iven the similarities
between this case and the Supreme Court’s decision in Duckworth, and the lack of clarity
regarding the effect of an officer’s misstatement on the voluntariness of a Miranda waiver,” the
defendant could not demonstrate a violation of clearly established federal law, necessary to
prevail under § 2254(d)(1). Id. at 665. We find the Seventh Circuit’s reasoning persuasive and
adopt it here.

        It is true that in Jackson, the Seventh Circuit did not cite Prysock, but Prysock does not
dictate a different conclusion. Duckworth was decided after Prysock. Although the Supreme
Court indicated in Prysock that a Miranda warning may not be sufficient “if the reference
to . . . appointed counsel was linked [to a] future point in time after the police interrogation,”
Prysock, 453 U.S. at 360 (emphasis added), the Duckworth Court clarified that “the vice referred
to in Prysock was that such warnings would not apprise the accused of his right to have an
attorney present if he chose to answer questions,” Duckworth, 492 U.S. at 205. Here, as in
Duckworth, “[t]he warnings . . . did not suffer from that defect,” id., because the five sentences in
the initial warning explained that Mitchell had a right to counsel before and during questioning,
and another sentence detailed the right to stop answering questions. And Mitchell does not
dispute that the written warnings conveyed this information. In sum, the Michigan Supreme
 No. 17-2444                            Mitchell v. MacLaren                               Page 12


Court did not unreasonably apply Duckworth when it found the Miranda warnings that Mitchell
received to be constitutionally adequate.

       Resisting this conclusion, Mitchell points to United States v. Tillman, 963 F.2d 137 (6th
Cir. 1992), in which we found the warnings issued to be constitutionally deficient. But the
Tillman warnings were plainly deficient: they did not inform the defendant, at any point, that any
statements he made could be used against him. See id. at 140. As the Tillman court noted, “[o]f
all of the elements provided for in Miranda, this element [that any statements made can be used
against a defendant] is perhaps the most critical because it lies at the heart of the need to protect
a citizen’s Fifth Amendment rights.” Id. at 141. It is likely that we could have remanded on this
point alone in Tillman. Accordingly, Tillman is not persuasive on the issues in this case.

       Finally, Lathers v. United States, 396 F.2d 524 (5th Cir. 1968), abrogation recognized by
United States v. Contreras, 667 F.2d 976 (11th Cir. 1982), is also inapposite. There, the Fifth
Circuit held that the Miranda warnings were deficient because the defendant “was not advised
that he could have an attorney appointed and present . . . before he uttered a syllable.” Id. at 535.
Here, the written warnings given to Mitchell fully advised him of his right to have an attorney
present prior to, and during, questioning. See Contreras, 667 F.2d at 979 (“Prysock . . . stands
for the proposition that a Miranda warning is adequate if it fully informs the accused of his right
to consult with an attorney prior to questioning and does not condition the right to appointed
counsel on some future event. A Miranda warning need not explicitly convey to the accused his
right to appointed counsel ‘here and now,’ and to the extent that Lathers and other precedents of
this court require such explicit warnings, they are overruled.” (footnote omitted)).

B.     Mid-Stream Miranda Warnings and Waiver

       In his second claim for relief, Mitchell argues that his post-warning admissions should
have been excluded under Seibert, because Collins interrogated him on three different occasions
and only advised Mitchell of his Miranda rights “mid-stream.” See Seibert, 542 U.S. at 604
(plurality opinion). As an initial matter, we note that Mitchell appears to challenge not only the
Michigan Supreme Court’s application of the law to the facts of his case but also that court’s
determination of the facts. See 28 U.S.C. § 2254(d)(2). However, the Michigan Supreme Court
 No. 17-2444                               Mitchell v. MacLaren                                    Page 13


does not appear to have adopted either Mitchell’s version of the facts or Collins’s version (as
discussed above, Collins claimed that he questioned Mitchell only once before giving Miranda
warnings). Instead, the Michigan Supreme Court reversed the Court of Appeals’s decision to
remand for an evidentiary hearing on the facts surrounding Mitchell’s interrogations. The
Michigan Supreme Court then stated that no violation of Mitchell’s rights had occurred, see
Mitchell, 822 N.W.2d at 224, indicating either that it had implicitly accepted one view of the
facts and found no violation or that it found no violation had occurred on either version of the
facts.

         Although it is not clear that a factual determination exists for the purposes of AEDPA
review, that gap in the record presents no hindrance to our review of Mitchell’s claim. Even
assuming Mitchell’s version of the interrogation sequence is the accurate one, his claim fails
because the Michigan Supreme Court’s decision was not an unreasonable application of the
Supreme Court’s case law even on Mitchell’s version of the facts.

         To understand the applicable Supreme Court case law, we must first consider Oregon v.
Elstad, 470 U.S. 298 (1985). In Elstad, the police went to the suspect’s house to take him into
custody on a charge of burglary. Id. at 300. Before the arrest, one officer spoke with the
suspect’s mother while the other officer joined the suspect in the living room, id. at 300–01,
where the officer said he “felt” the suspect was involved in a burglary, id. at 301. The suspect
said, “Yes, I was there.” Id.3 Later, at the station house, the suspect was given Miranda
warnings, and he made a full confession. Id. at 301–02.

         The Elstad Court reasoned that “a simple failure to administer the [Miranda] warnings,
unaccompanied by any actual coercion or other circumstances calculated to undermine the
suspect’s ability to exercise his free will,” does not automatically “taint[] the investigatory
process.” Id. at 309. “[T]here is no warrant for presuming coercive effect where the suspect’s
initial inculpatory statement, though technically in violation of Miranda, was voluntary. The
relevant inquiry is whether, in fact, the second [i.e., the Mirandized] statement was also
voluntarily made.” Id. at 318 (footnote omitted). “[A] suspect who has once responded to

        3The state conceded for the purposes of the appeal that the suspect was in custody at the time of this
exchange. See Elstad, 470 U.S. at 315.
 No. 17-2444                          Mitchell v. MacLaren                               Page 14


unwarned [i.e., un-Mirandized] yet uncoercive questioning is not thereby disabled from waiving
his rights and confessing after he has been given the requisite Miranda warnings.” Id.

       After Elstad came Seibert, upon which Mitchell relies. There, police questioning led to
the defendant’s confession to a crime, after which she was given a 20-minute break. Seibert,
542 U.S. at 604–05 (plurality opinion). Following the break, the officer turned on the tape
recorder and only then gave the defendant her Miranda warnings. Id. at 605. When the
defendant resisted making a statement, the officer reminded her that she had already admitted
involvement in the crime; the defendant then confessed post-warning.         Id.   In a fractured
decision, the Supreme Court held that the post-warning confession was inadmissible.

       A four-justice plurality distinguished Elstad based on the following factors: “[1] the
completeness and detail of the questions and answers in the first round of interrogation, [2] the
overlapping content of the two statements, [3] the timing and setting of the first and the second,
[4] the continuity of police personnel, and [5] the degree to which the interrogator’s questions
treated the second round as continuous with the first.” Id. at 615. On the facts of Seibert, the
plurality determined, these factors dictated reversal “[b]ecause the question-first tactic
effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession
would be admitted, and because the facts here do not reasonably support a conclusion that the
warnings given could have served their purpose.” Id. at 617.

       Justice Kennedy provided the fifth vote for reversal, writing separately to propose an
alternative analysis:

               The admissibility of postwarning statements should continue to be
       governed by the principles of Elstad unless the deliberate two-step strategy was
       employed. If the deliberate two-step strategy has been used, postwarning
       statements that are related to the substance of prewarning statements must be
       excluded unless curative measures are taken before the postwarning statement is
       made. Curative measures should be designed to ensure that a reasonable person
       in the suspect’s situation would understand the import and effect of the Miranda
       warning and of the Miranda waiver. For example, a substantial break in time and
       circumstances between the prewarning statement and the Miranda warning may
       suffice in most circumstances, as it allows the accused to distinguish the two
       contexts and appreciate that the interrogation has taken a new turn. Alternatively,
 No. 17-2444                            Mitchell v. MacLaren                                 Page 15


       an additional warning that explains the likely inadmissibility of the prewarning
       custodial statement may be sufficient.

Id. at 622 (Kennedy, J., concurring) (emphases added). Four justices dissented, arguing that the
post-warning confession was admissible. See id.

       Thus, based on Seibert, there are two competing tests regarding how to evaluate the
constitutionality of interrogations employing mid-stream Miranda warnings. As we noted in
United States v. Ray, 803 F.3d 244, 272 (6th Cir. 2015), “[b]ecause . . . the plurality and dissent
[in Seibert] each received only four votes, . . . Seibert did not [itself] announce a binding rule of
law.” Therefore, reasonable jurists could read Seibert as having established only that on the facts
of that case, the post-warning confession was inadmissible. See Dixon, 565 U.S. at 30–32 (citing
both the plurality opinion and Justice Kennedy’s opinion but not exclusively adopting the
approach of either).

       As mentioned above, the Michigan Supreme Court found no constitutional violation
because Mitchell’s pre-warning statement had denied involvement in the killing; thus, “[u]nlike
in [Seibert], there is no concern here that police gave [defendant] Miranda warnings and then led
him to repeat an earlier murder confession, because there was no earlier confession to repeat.”
Mitchell, 822 N.W.2d at 224 (third alteration in original) (quoting Dixon, 565 U.S. at 31).
Mitchell argues that the Michigan Supreme Court took this quote from Dixon—a Supreme Court
opinion discussing both Elstad and Seibert—out of context. Indeed, Mitchell relies heavily on
Dixon to argue that (1) Dixon made clear that the absence of a pre-warning confession is not the
end of the analysis and (2) the application of either the plurality’s or the Kennedy concurrence’s
approach from Seibert, which led to the Dixon Court’s finding a confession admissible, would
produce the opposite result in Mitchell’s case because his facts are much more like Seibert. An
examination of Dixon, however, reveals that the Michigan Supreme Court was not unreasonable
in determining that Mitchell’s case was comparable in pertinent respects to Dixon.

       In Dixon, both Dixon and another man murdered the victim. 565 U.S. at 24–25. Dixon
then used the victim’s social security card and birth certificate to obtain a state identification card
in the victim’s name so Dixon could sell the victim’s car. Id. at 25. Police arrested Dixon on a
forgery charge and then questioned him intermittently over several hours but intentionally
 No. 17-2444                            Mitchell v. MacLaren                                 Page 16


declined to provide Dixon with Miranda warnings. Id. Dixon admitted to forging the victim’s
signature, but he denied having any involvement in the victim’s disappearance. Id. After
Dixon’s accomplice spoke to police officers and led them to where the two had buried the body,
officers again brought Dixon to the station, about four hours after the initial intermittent
questioning had concluded. Id. at 26. “Dixon stated that he had heard the police had found a
body and asked whether [his accomplice] was in custody. The police told Dixon that [the
accomplice] was not, at which point Dixon said, ‘I talked to my attorney, and I want to tell you
what happened.’” Id. After the officers advised him of his Miranda rights, Dixon admitted to
murdering the victim. Id.

        Ultimately, Dixon’s case reached the Supreme Court in the form of an appeal from the
denial of his § 2254 petition. The Court, citing both Elstad and Seibert, held:

        In this case, no two-step interrogation technique of the type that concerned the
        Court in Seibert undermined the Miranda warnings Dixon received. In Seibert,
        the suspect’s first, unwarned interrogation left “little, if anything, of incriminating
        potential left unsaid,” making it “unnatural” not to “repeat at the second stage
        what had been said before.”

Id. at 31 (quoting Seibert, 542 U.S. at 616–17 (plurality opinion)). Accordingly, the Court
continued:

        [A]dmission of Dixon’s murder confession was consistent with this Court’s
        precedents: Dixon received Miranda warnings before confessing to [the] murder;
        the effectiveness of those warnings was not impaired by the sort of “two-step
        interrogation technique” condemned in Seibert; and there is no evidence that any
        of Dixon’s statements was the product of actual coercion.

Id. at 32.

        Assuming Mitchell’s version of the facts leading to his post-warning admissions is
correct, reasonable jurists could find his case to be more like Dixon and Elstad than Seibert. As
in Dixon and Elstad, here, there was no confession during the interrogations that occurred prior
to the Miranda warnings. Instead, Mitchell received Miranda warnings before admitting to
beating Jorden and taking money and drugs from him. Also, although Collins referenced
Mitchell’s pre-warning statements during the post-warning interrogation, there is no evidence
 No. 17-2444                           Mitchell v. MacLaren                              Page 17


that Collins used Mitchell’s earlier, un-Mirandized statements to coerce a post-warning
confession or that Collins otherwise induced Mitchell to waive his rights.

       It is true that Mitchell was given only a few minutes between his pre- and post-warning
interrogations (unlike Dixon, who had four hours) and that Collins himself conducted both
interrogations. See Seibert, 542 U.S. at 615 (plurality opinion) (One factor to consider in
determining the effectiveness of mid-stream warnings is “the continuity of police personnel.”).
Also, during the unwarned interrogation, Mitchell told Collins about a prior incident with Jorden
concerning the gun and admitted to being at the location of Jorden’s shooting on the evening of
the murder. However, in Dixon, the Supreme Court reaffirmed the holding in Elstad that “there
is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement,
though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in
fact, the second [warned] statement was also voluntarily made.” Dixon, 565 U.S. at 29
(alteration in original) (quoting Elstad, 470 U.S. at 318); see id. at 30 n.3, 32. Similarly, here,
Mitchell does not contend that any pre-warning statements he made, though technically in
violation of Miranda, were involuntary. And none of those statements included a confession to
the killing or to any crime, unlike in Seibert. To the extent that what Mitchell did say in his
unwarned statements could be considered incriminating, indeed, Dixon indicates that
incriminating statements falling short of a confession do not necessarily taint a post-warning
confession. In Dixon, after all, the defendant readily admitted forgery during the unwarned
interrogation, thus establishing a connection between himself and the victim. See Dixon, 565
U.S. at 29. Similarly, here, although Mitchell admitted being near the scene before Jorden’s
murder, he did not admit any wrongdoing during the unwarned interrogation.

       Our task in applying AEDPA is not to consider in the first instance whether we would
reach the same result as the state court but to determine whether the state court’s application of
clearly established federal law was unreasonable. See Taylor, 529 U.S. at 411. Here, where the
Supreme Court has held in Dixon and Elstad that mid-stream warnings do not necessarily make a
post-warning confession inadmissible, and Seibert did not establish a clear rule for determining
when such confessions are inadmissible, the Michigan Supreme Court’s determination that
 No. 17-2444                                  Mitchell v. MacLaren                                        Page 18


Mitchell’s post-warning admissions had not been elicited in violation of Miranda was
reasonable.4

                                              V. CONCLUSION

        For the reasons stated above, we AFFIRM the district court’s denial of Mitchell’s § 2254
petition.




         4Mitchell also argues that the cumulative effect of the mid-stream Miranda warnings and Detective
Collins’s allegedly misleading statements resulted in Mitchell’s being inadequately informed of his rights.
However, because the COA did not include this “cumulative effects” issue, we are not required to entertain it. See
Dunham v. United States, 486 F.3d 931, 934 (6th Cir. 2007). Mitchell’s reliance on Gonzalez v. Thaler, 565 U.S.
134 (2012) to argue that there is no bar to reaching this argument is unavailing. Unlike in Gonzalez, where the COA
was defective because it failed to comply with 28 U.S.C. § 2252(c)(3), see 565 U.S. at 141, the district court here
issued a compliant COA. It precisely identified the two issues certified for appeal and rejected the others. In these
circumstances, we address only the issues certified for appeal. See Dunham, 486 F.3d at 934. Moreover, we decline
to exercise our “inherent authority to expand sua sponte the scope of the COA to encompass additional issues.” See
Howard v. United States, 485 F. App’x 125, 127–28 (6th Cir. 2012).
