                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                 File Name: 12a0395p.06

              UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT
                               _________________


                                               X
                                                -
 KEVIN MOORE,
                                                -
                          Petitioner-Appellant,
                                                -
                                                -
                                                    No. 09-2011
         v.
                                                ,
                                                 >
                                                -
                      Respondent-Appellee. -
 MARY BERGHUIS, Warden,
                                               N
                 Appeal from the United States District Court
                for the Eastern District of Michigan at Detroit.
            No. 2:07-cv-14564—Denise Page Hood, District Judge.
                      Decided and Filed: November 30, 2012
              Before: KEITH, MARTIN, and BOGGS, Circuit Judges.

                                 _________________

                                     COUNSEL
ON BRIEF: David A. Castleman, Kathleen M. Cochrane, SULLIVAN & CROMWELL
LLP, New York, New York, for Appellant. Laura A. Cook, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
    MARTIN, J., delivered the opinion of the court in which KEITH, J., joined.
BOGGS, J. (pp. 11–13), delivered a separate dissenting opinion.
                                 _________________

                                      OPINION
                                 _________________

       BOYCE F. MARTIN, JR., Circuit Judge. Kevin Moore appeals the district
court’s order denying his petition for a writ of habeas corpus filed pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254. Following
a jury trial in Michigan court, Moore was convicted of first-degree premeditated murder,
being a felon in possession of a firearm, and possession of a firearm in the commission
of a felony. He was sentenced to life imprisonment, three to five years imprisonment,


                                           1
No. 09-2011          Moore v. Berghuis                                                   Page 2


and two years imprisonment for the charges, respectively. His conviction was affirmed
on appeal, and the Michigan courts denied his post-conviction motion for relief from
judgment. Moore filed a petition for a writ of habeas corpus in the district court. He
argued that the admission of a statement that he made while in police custody, after
requesting counsel, violated his constitutional right to remain silent. The district court
denied his petition. Moore appeals. For the following reasons, we REVERSE the
judgment of the district court and GRANT the petition.

                                              I.

         Moore was convicted of first-degree premeditated murder, being a felon in
possession of a firearm, and possession of a firearm in the commission of a felony
related to the homicide of Hyshanti Johns, a twenty-year-old woman, who died after she
was shot multiple times with a shotgun. The district court, Moore v. Bell, No. 2:07-CV-
14564, 2009 WL 1803192, *1 (E.D. Mich. June 23, 2009) (quoting People v. Moore, No.
236015, 2003 WL 21419275, *1-2 (Mich. Ct. App. June 19, 2003)), recited the relevant
facts:

         Here, the evidence indicated that [Moore] took a shotgun with him when
         he drove away with the decedent. He disposed of the weapon and the
         van after the decedent was shot, and also left town. He told different
         versions of the killing to his girlfriend and to the police, claiming that he
         either shot the decedent because she was a witness to another crime or
         that she attempted to rob him and he shot her in “self-defense” as she was
         running away. The evidence disclosed, however, that the decedent was
         shot four times by a shotgun, twice in the back and twice in the front of
         her body, and possibly a fifth time resulting in a grazing wound. The
         shotgun had to be pumped between each shot.
Moore voluntarily turned himself in to the Detroit police in connection with the
homicide of Johns. Upon turning himself in, Moore was taken by a police officer to a
room in the police station. The trial court found at a pre-trial hearing that:

         [Moore then] asked the [officer] to call a number on the reverse of a
         business card, which was an attorney’s business card. [The officer]
         called that number and received an answering service for that attorney.
         Upon doing that, he came back and told [Moore] that he was unable to
         get an answer except for an answering service for this attorney. [The
No. 09-2011          Moore v. Berghuis                                                Page 3


          trial court] determined that would have been an initial request for an
          attorney, however, subsequently during the time that [the officer] was
          with [Moore], [Moore] indicated he did want to make a statement. He
          signed an acknowledgment and waiver of rights form, and [the court
          found] that his rights were knowingly waived. [The officer then
          questioned Moore, and Moore made an incriminating statement in which
          he confessed to shooting Johns.] There was no other indication given by
          [Moore] to [the officer] that he wanted an attorney before making a
          statement, or at any time during the interrogation[. A]t no time did
          [Moore] ask to stop the interrogation and again attempt to invoke his
          rights to have an attorney during the interrogation . . . . There was no
          clear request for an attorney after . . . Moore was advised that his
          attorney was not available when [the officer] made the first call.

          Before trial, Moore moved to suppress the incriminating custodial statement he
made to the officer after requesting an attorney. The trial court held a hearing and
denied Moore’s motion to suppress the statement, finding that Moore had made an initial
request for an attorney and was not provided with one, but that he then waived his rights
by agreeing to make a custodial statement and by not repeating his request for counsel
after the start of questioning. The case proceeded to a jury trial, where the custodial
statement was read aloud into the record by the police officer who had questioned him
over Moore’s objections. Moore was convicted on the three charges.

          Moore’s conviction was affirmed on appeal by the Michigan Court of Appeals.
In summarizing the trial court’s finding, the Michigan Court of Appeals stated that,
“although defendant initially requested counsel, the challenged statement was made only
after defendant initiated further conversation with the police”; the state appellate court
found “no clear error in this factual determination.” People v. Moore, 2003 WL
21419275, at *3. The Michigan Supreme Court denied Moore leave to appeal. He then
filed a motion for post-conviction relief from judgment, which the state trial court
denied. Moore filed an application for leave to file a delayed appeal. The Michigan
Court of Appeals and Michigan Supreme Court both denied his application for leave to
appeal.

          Moore then filed a pro se petition for a writ of habeas corpus in the United States
District Court for the Eastern District of Michigan in October 2007. Moore included in
No. 09-2011          Moore v. Berghuis                                                Page 4


this petition a claim that his constitutional rights were violated when the trial court
admitted into evidence the statement he made while in police custody, after requesting
an attorney, without an attorney present, and without waiving his right to counsel. The
district court found: (1) that Moore “most likely invoked his right to counsel by giving
[the officer] the name and telephone number of his attorney and asking [the officer] to
call her;” (2) that, after requesting an attorney, it is “unclear whether it was [the officer]
or [Moore] who reinitiated the subsequent conversation,” and that “the Michigan courts
may have erred in finding that it was [Moore], and not the officer, who reinitiated the
interrogation after [Moore] had invoked his right to counsel;” and (3) the “troublesome”
fact that the officer then “clearly began asking questions of [Moore] to see if he wished
to make an incriminating statement.” Moore, 2009 WL 1803192, at *10. However, the
district court denied Moore’s petition, finding that Moore “is unable to show how he was
prejudiced . . . because his confession that he shot the victim was duplicative of other
evidence that was introduced in this case, including testimony from [Moore]’s girlfriend
that he admitted shooting the victim to her, as well as Angelene Doss’ testimony that she
observed the victim and [Moore] leaving her apartment together on the morning of the
murder, while [Moore] was armed with a shotgun.” Id. at *11.

          Moore appeals the district court’s denial of his petition for a writ of habeas
corpus.     Moore argues that his petition should be granted because the police
interrogation following his request for counsel violated his Fifth and Fourteenth
Amendment rights to counsel, and that the trial court’s denial of his motion to suppress
his custodial statement was contrary to clearly established federal law.

                                             II.

          We review the district court’s legal conclusions in a habeas proceeding de novo
and we review its factual findings under the clear-error standard. Awkal v. Mitchell,
613 F.3d 629, 638 (6th Cir. 2010) (en banc). We review the district court’s denial of
Moore’s petition for a writ of habeas corpus pursuant to the standards of review as set
forth in the Antiterrorism and Effective Death Penalty Act of 1996. See Murphy v. Ohio,
551 F.3d 485, 493 (6th Cir. 2009). This Court has held, Black v. Bell, 664 F.3d 81,
No. 09-2011         Moore v. Berghuis                                                    Page 5


90–91 (6th Cir. 2011) (alterations, citations, and internal quotation marks omitted), that
under the Act:

        [A] federal court may grant a writ of habeas corpus with respect to a
        claim that was adjudicated on the merits in state court proceedings if the
        state court’s decision was contrary to, or involved an unreasonable
        application of, clearly established Federal law, as determined by the
        Supreme Court of the United States[,] . . . [or] if the state court’s decision
        was based on an unreasonable determination of the facts in light of the
        evidence presented in the State court proceeding . . . . A state-court
        decision is contrary to clearly established federal law if the state court
        applies a rule that contradicts the governing law set forth in the Supreme
        Court’s cases or if the state court confronts a set of facts that are
        materially indistinguishable from a decision of the Supreme Court and
        nevertheless arrives at a result different from that precedent.

We have further held that a state court’s decision is an “unreasonable application of
clearly established federal law if it correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular prisoner’s case, or if it either
unreasonably extends or unreasonably refuses to extend a legal principle from Supreme
Court precedent to a new context.” Id. at 91 (citations and internal quotation marks
omitted). Under the Act, a habeas petitioner “must 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.” Harrington v. Richter, 131 S.Ct. 770, 786–87 (2011).

                                             III.

        The Fifth and Fourteenth Amendments guarantee a right against self-
incrimination in criminal cases, and this right includes a right to counsel during custodial
interrogation.    McKinney v. Ludwick, 649 F.3d 484, 488–90 (6th Cir. 2011)
(summarizing United States Supreme Court case law regarding the right to counsel and
waiver of this right). “If the individual states that he wants an attorney, the interrogation
must cease until an attorney is present.” Miranda v. Arizona, 384 U.S. 436, 474 (1966).
The Supreme Court, Edwards v. Arizona, 451 U.S. 477, 484–85 (1981), has further
defined an accused’s right to counsel as follows:
No. 09-2011        Moore v. Berghuis                                                   Page 6


       [W]hen an accused has invoked his right to have counsel present during
       custodial interrogation, a valid waiver of that right cannot be established
       by showing only that he responded to further police-initiated custodial
       interrogation even if he has been advised of his rights . . . . [A]n accused,
       such as [defendant], having expressed his desire to deal with the police
       only through counsel, is not subject to further interrogation by the
       authorities until counsel has been made available to him, unless the
       accused himself initiates further communication, exchanges, or
       conversations with the police.

As we have stated previously, “[i]n other words, after an individual asks for counsel
during interrogation, the government cannot demonstrate a valid waiver of this right
absent the necessary fact that the accused, not the police, reopened the dialogue with the
authorities . . . by evincing a willingness and a desire for a generalized discussion about
the investigation.” McKinney, 649 F.3d at 489 (alterations, citation, and internal
quotation marks omitted).

       The Michigan courts adjudicated on the merits Moore’s claim that the admission
of his custodial statement violated his right to counsel. Therefore, we review the district
court’s denial of Moore’s petition under the additional standards required by the
Antiterrorism and Effective Death Penalty Act.

       A.      Invoking the Right to Counsel

       We agree with both the trial court and the district court that, after being taken
into custody, Moore invoked his constitutional right to counsel by requesting that the
police officer call his attorney’s phone number. See Abela v. Martin, 380 F.3d 915, 926
(6th Cir. 2004) (citing Davis v. United States, 512 U.S. 452 (1994)) (finding the accused
“clearly and unequivocally invoke[d] the right to counsel” when he said “[m]aybe I
should talk to an attorney” and showed the officer his attorney’s business card).

       B.      Waiving the Right to Counsel

       An accused’s statement during a custodial interrogation is inadmissible at trial
unless the prosecution establishes that he “in fact knowingly and voluntarily waived” his
Miranda rights when he made the statement. Berghuis v. Thompkins, 130 S. Ct. 2250,
No. 09-2011        Moore v. Berghuis                                                Page 7


2260 (2010) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)) (internal
quotation marks omitted). A waiver inquiry has “two distinct dimensions”: waiver must
have been “voluntary in the sense that it was the product of a free and deliberate choice
rather than intimidation, coercion, or deception,” and it must have been “made with a full
awareness of both the nature of the right being abandoned and the consequences of the
decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986)). “By its very
nature, custodial police interrogation entails inherently compelling pressures” that “can
induce a frighteningly high percentage of people to confess to crimes they never
committed.” J.D.B. v. North Carolina, 131 S.Ct. 2394, 2401 (2011) (citations and
internal quotation marks omitted). The state bears the burden of establishing a waiver
by a preponderance of the evidence. Colorado v. Connelly, 479 U.S. 157, 168 (1986)
(noting that a preponderance of the evidence standard applies to waivers of the right to
counsel and the right to remain silent). We find that Moore did not waive his right to
counsel.

       In order to demonstrate that Moore waived his asserted right to counsel and was
therefore “not subject to further interrogation by the authorities until counsel [was] made
available to him,” the government must have shown that Moore “himself initiate[d]
further communication, exchanges, or conversations with the police.” Edwards,
451 U.S. at 484–85; McKinney, 649 F.3d at 489. Though the Supreme Court in
Thompkins recently addressed the issue of waiver of Miranda rights, we do not read
Thompkins’s waiver analysis to alter the Edwards rule regarding waiver of the right to
counsel. In Thompkins, the Court did not alter, or even speak to, the Edwards analysis
regarding the waiver of the right to counsel; instead, Thompkins clarifies the waiver
analysis for the right to remain silent. See Thompkins, 130 S. Ct. at 2275 (Sotomayor,
J., dissenting) (noting that the Supreme Court necessarily treats both the invocation and
waiver of the right to remain silent and the right to counsel distinctly, and stating that
“Miranda itself distinguished between the procedural safeguards triggered by a request
to remain silent and a request for an attorney” (internal quotation marks omitted)).
No. 09-2011         Moore v. Berghuis                                                 Page 8


        After calling the phone number of Moore’s attorney, the police officer returned
and informed Moore that his attempt to contact the attorney was unsuccessful.
According to testimony given by the officer at the suppression hearing, “at that time [the
officer] asked [Moore] did he want to talk to [the officer] and [Moore] said yes he did.”
The officer testified that he then had Moore sign a form waiving his constitutional rights,
and “asked [Moore] could he tell [the officer] about . . . the fatal shooting of Hyshanti
Johns and at that time [Moore] gave [the officer] a narrative of what happened.” At the
same hearing, Moore testified that he asked the officer for an attorney “probably three
or four times,” including once immediately before the questioning began. Moore also
testified that after he had refused to make a statement without counsel present, the officer
initiated an extended conversation with him about Moore’s father, religion, and potential
witnesses. Following this discussion, Moore agreed to make a statement. Based on this
and other testimony, the trial court found that, because “[Moore] indicated he did want
to make a statement,” “signed an acknowledgment and waiver of rights form,” and made
no additional request for an attorney, Moore had waived his right to counsel. The trial
court did not make a finding on whether Moore or the officer initiated further
communication following Moore’s request for counsel. The Michigan Court of Appeals
affirmed, finding that Moore had initiated further conversation with the officer.

        Under the review required by the Antiterrorism and Effective Death Penalty Act,
a state court’s decision is an “unreasonable application of clearly established federal law
if it correctly identifies the governing legal rule but applies it unreasonably to the facts
of a particular prisoner’s case.” Black, 664 F.3d at 91 (internal quotation marks
omitted). The Michigan courts erred in concluding that Moore waived his right to
counsel. The government did not show by a preponderance of the evidence, and the
Michigan trial court did not clearly find, that Moore, and not the officer, initiated further
conversation. In fact, the hearing testimony from both witnesses indicates that the
officer reinitiated communication with Moore following Moore’s request for counsel,
and that the officer explicitly asked Moore to tell him about the shooting. Although the
Michigan Court of Appeals correctly cited the governing rule of Edwards, the state court
unreasonably applied Edwards to the facts of Moore’s case in finding that Moore had
No. 09-2011        Moore v. Berghuis                                                Page 9


waived his right to counsel. The Michigan Court of Appeals unreasonably applied
Edwards here by finding a waiver absent a factual finding by the trial court—and despite
testimonial evidence to the contrary—that Moore, not the officer, had reinitiated
communications, see Edwards, 451 U.S. at 485, and by not finding it to be error that the
trial court effectively required that Moore assert his right to counsel a second time in
order to secure it. The state court’s denial of Moore’s motion to suppress his custodial
statement was therefore an unreasonable application of clearly established federal law.

       C.      Harmless Error Analysis

       Having found that the admission at trial of Moore’s custodial statement violated
his right to counsel and that the state court unreasonably applied clearly established
federal law by admitting it, we must now determine whether the state court’s error in
admitting the statement was harmless. “For the purposes of habeas review, federal
courts must assess the prejudicial impact of constitutional errors under the ‘substantial
and injurious effect’ standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637
(1993).” Tolliver v. Sheets, 594 F.3d 900, 923 (6th Cir. 2010). If we are in “grave
doubt” about whether the improper admission of the petitioner’s statements in violation
of his right to counsel had a “substantial and injurious effect or influence in determining
the jury’s verdict” then the error is not harmless and the petitioner must win. Id. at 924
(quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995)) (internal quotation marks
omitted). “This standard applies in the context of § 2254 habeas claims regardless of
whether the state courts recognized the error.” Fleming v. Metrish, 556 F.3d 520, 555
(6th Cir. 2009).

       “A confession is like no other evidence. Indeed, ‘the defendant’s own confession
is probably the most probative and damaging evidence that can be admitted against him
. . . . [T]he admissions of a defendant come from the actor himself, the most
knowledgeable and unimpeachable source of information about his past conduct.
Certainly, confessions have profound impact on the jury . . . .’” Arizona v. Fulminante,
499 U.S. 279, 296 (1991) (alteration in original).
No. 09-2011        Moore v. Berghuis                                              Page 10


       The district court found that, even if the admission of Moore’s custodial
statement violated his right to counsel, its admission was harmless error. We disagree.
Excluding Moore’s confession to the officer, the persuasive evidence against him at trial
included: testimony from Moore’s girlfriend that he admitted to her that he was
responsible for killing someone, but gave varying stories about who the victim was;
witness testimony that Moore and Johns left the witness’s apartment together on the
morning Johns was killed, while Moore was armed with a shotgun; and witness
testimony that Moore had a shotgun with him the night before the homicide occurred.
The prosecution presented no direct evidence, only circumstantial evidence, linking
Moore to the scene of the crime. And there was no evidence, other than the custodial
confession, indicating premeditation or deliberation by Moore. Moore’s custodial
statement was significant in establishing his guilt, his link to the crime scene, and his
intent to commit murder. See Kyger v. Carlton, 146 F.3d 374, 382 (6th Cir. 1998) (“The
Brecht test does not say ‘only errors that turn acquittals into convictions are harmful’
. . . [but instead asks] ‘what effect the error had or reasonably may be taken to have had
upon the jury’s decision.’” (quoting Brecht, 507 U.S. at 642–43 (Stevens, J.,
concurring))). Here, the confession was “probative and damaging,” id., and the
prosecution emphasized the confession’s importance in building its case of first-degree
murder against Moore.

       We find that the admission of Moore’s custodial statement was not harmless
error because we have grave doubts about whether its admission had a “substantial and
injurious effect or influence in determining the jury’s verdict” that Moore was guilty of
first-degree premeditated murder. Tolliver, 594 F.3d at 924. Accordingly, we must
grant Moore’s petition for a writ of habeas corpus. See O’Neal, 513 U.S. at 436.

                                           IV.

       We therefore REVERSE the judgment of the district court, GRANT Moore’s
petition for a writ of habeas corpus, and order Moore released from custody unless
Michigan commences a new trial within 180 days of the date of this order.
No. 09-2011            Moore v. Berghuis                                                          Page 11


                                        _________________

                                            DISSENT
                                        _________________

         DANNY J. BOGGS, Circuit Judge, dissenting. I respectfully dissent from the
court’s holding that, under AEDPA, the Michigan Court of Appeals unreasonably
applied Edwards v. Arizona, 451 U.S. 477, 484–85 (1981). The lead opinion correctly
agrees with the Michigan Court of Appeals that Edwards is the relevant binding
Supreme Court precedent, but it incorrectly holds that the Michigan Court of Appeals
unreasonably applied Edwards in this case. As the Supreme Court has repeatedly
reminded this court of appeals,1 a state-court determination is to be overthrown, and
habeas granted, only when a trial proceeding has gone fundamentally awry and
fairminded jurists could not dispute that the outcome was constitutionally invalid.
See Harrington v. Richter, 131 S. Ct. 770, 786 (2011); Yarborough v. Alvarado,
541 U.S. 652, 664 (2004); see also Werth v. Bell, 692 F.3d 486, 495 (2012).

         This decision-making principle holds just as much for a determination of whether
a decision is an “unreasonable application” of clearly established federal law as it does
for a determination of whether a decision is “contrary to” clearly established federal law.
See Harrington, 131 S. Ct. at 785–86; Yarborough, 541 U.S. at 663–64.

         Here, the exact circumstances under which Moore conversed with Officer
Gardner are controverted. It is clear that Moore asked the officer to call a particular
attorney for him. The officer did so and truthfully reported that he was only able to get
an answering service. Subsequent to that point, there are two possible interpretations of
the record. One is that Moore, in effect realizing that his designated attorney was not
available, decided that it would be in his best interest to talk anyway, and that he did so.
The alternative view would be that Officer Gardner, having properly observed the



         1
           See, e.g., Parker v. Matthews, 132 S. Ct. 2148, 2153, 2155 (2012) (ruling that “the Sixth Circuit
overstepped the proper limits of its authority” by granting habeas relief, thus committing “plain and
repetitive error”); Bobby v. Dixon, 132 S. Ct. 26 (2011); Berghuis v. Thompkins, 130 S. Ct. 2250 (2010);
Renico v. Lett, 130 S. Ct. 1855 (2010); Berghuis v. Smith, 130 S. Ct. 1382 (2010); Smith v. Spisak, 558
U.S. 139 (2009).
No. 09-2011        Moore v. Berghuis                                             Page 12


correct protocol to this point, decided to badger Moore into talking. The Michigan Court
of Appeals, in the final reasoned opinion—with which we must deal—cited the state trial
court’s finding that “the challenged statement was made only after defendant initiated
further conversation with the police” and found that there was “no clear error in this
factual determination.”

       The appellate court’s judgment with respect to the somewhat murky record may
be right or wrong on this point. However, I cannot find that this judgment was, in the
words of Harrington, “so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.”
Harrington, 131 S. Ct. at 786–87.

       As the lead opinion correctly states, the record before us does not affirmatively
show “whether Moore or the officer initiated further communication following Moore’s
request for counsel.” Maj. Op. at 8. But the Michigan Court of Appeals, again as the
lead opinion states, found “that Moore had initiated further conversation with the
officer.” Maj. Op. at 8 (emphasis added). While we have before us the same cold record
that the Michigan Court of Appeals did, we possess neither the contextual insight that
the Michigan Court of Appeals may have garnered from oral argument, nor that court’s
familiarity with Michigan procedure. And the state trial court, on whose factual findings
the Michigan Court of Appeals relies, actually heard the specific testimony in question.
The trial court heard Moore’s claim that he made repeated requests for an attorney and
that Gardner disregarded these pleas. It also heard not only Gardner’s contrary
testimony, quoted by the lead opinion, that Gardner “asked [Moore] did he want to talk
to [the officer] and [Moore] said yes he did,” Maj. Op. at 8, but also the context and
circumstances attending this, at least slightly ambiguous, language.

       More probing examination or cross-examination of Gardner might have elicited
more specific answers to questions such as:

       •       Did Moore say anything indicating a desire to talk when you
               returned with the information that the attorney was not available?
No. 09-2011        Moore v. Berghuis                                           Page 13


       •       Did you ask about Moore’s desire to talk because you thought he
               had not invoked his right to counsel?
       •       Did you ask about Moore’s desire to talk only after there had
               been some intimation that he desired to talk?
       •       If so, what was that intimation?

       In short, I agree that the record is subject to muddled interpretation. However,
in the face of the flat statement by the Michigan Court of Appeals that the state trial
court made a non-erroneous factual determination that Moore had appropriately initiated
the conversation, I think that its judgment is not beyond fairminded disagreement.
Under the Supreme Court’s AEDPA jurisprudence, therefore, I respectfully dissent.
