               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0365n.06

                                           No. 15-5609
                                                                                   FILED
                                                                               Jun 26, 2017
                         UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

SHANNON SHIELDS,                                         )
                                                         )     ON APPEAL FROM THE
             Petitioner – Appellant,                     )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE WESTERN
v.                                                       )     DISTRICT OF TENNESSEE
                                                         )
UNITED STATES OF AMERICA,                                )
                                                         )     OPINION
             Respondent – Appellee.                      )


       Before: BOGGS, BATCHELDER, and WHITE, Circuit Judges.

       BOGGS, Circuit Judge.           Following a jury trial, Petitioner Shannon Shields was

convicted of (1) kidnapping resulting in the death of the victim, in violation of 18 U.S.C.

§ 1201(a); (2) carrying and using a firearm during and in relation to kidnapping, in violation of

18 U.S.C. § 924(c); and (3) attempted escape, in violation of 18 U.S.C. § 751(a). The district

court determined that Shields was mentally retarded and thus ineligible for the death penalty

under 18 U.S.C. § 3596. Shields was sentenced to consecutive terms of life, ten years, and five

years in prison, respectively. Pursuant to 28 U.S.C. § 2255, Shields now asserts that even though

trial counsel argued that Shields’s confession “was not voluntary” and that “coercive police

activity overbore [his] will,” trial counsel provided constitutionally ineffective assistance by

failing to argue in addition—before the very same trial judge—that Shields’s mental retardation

prevented his waiver of his Miranda rights from being “knowing and intelligent.”

       A waiver of Miranda rights must be made “voluntarily, knowingly, and intelligently.”

Miranda v. Arizona, 384 U.S. 436, 444 (1966). Mental retardation alone, however, does not
No. 15-5609, Shields v. United States


prevent a defendant from making a valid waiver of Miranda in order to confess to a crime. And

even if Shields’s trial counsel had argued that it did, Shields cannot show a reasonable likelihood

that the district court would have granted Shields’s motion to suppress. We therefore affirm the

denial of Shields’s motion for post-conviction relief.

                                                 I

                                          The Kidnapping

       According to eyewitness testimony at trial, at approximately 10:20 p.m. on May 19,

2004, Shields and his cousin Sonny approached a man named Jerrell Lott as he exited a grocery

store in Memphis and got into his car. Either Shields or Sonny pointed a gun at Lott while the

other demanded that Lott unlock his car and let them inside. Lott complied. The gunman kept

the gun to Lott’s head as they drove away. Surveillance video revealed that Sonny used Lott’s

ATM card to withdraw funds from an ATM approximately one hour after the initial carjacking.

       Shields and Sonny then drove to the house of Sonny’s friend Lendzo Parker. According

to Parker’s testimony, Shields and Sonny explained that they had robbed Lott and needed

Parker’s help to get rid of the car. Parker and Parker’s friend James Stafford agreed to follow

behind Shields and Sonny as they drove away in Lott’s car with Lott trapped in the trunk. Two

other witnesses testified to their departure.

       Parker testified that the men crossed into Arkansas, stopped at a gas station, and bought a

gas can, which Stafford filled at the pump with gasoline. The men then resumed driving, first on

a secluded paved road and then on an unpaved road. They parked by a field. Shields and Sonny

got out of Lott’s car, opened Lott’s trunk, and directed Lott to get out. Lott begged for his life.

When Lott attempted to run away, Sonny pulled a gun and fired at him. Shields grabbed the gun

and ran after Lott, firing additional shots as he ran. Sonny followed. Parker testified that he




                                                 2
No. 15-5609, Shields v. United States


heard several more shots before Shields and Sonny returned to the cars. The men then drove

away in both cars, leaving Lott’s body behind.

       After arriving in Memphis, however, Sonny noticed that the cap to the gas can was

missing, so the four decided to return to the field to find it. They were not successful, so they

drove back to Memphis. They then looked for a place to burn Lott’s car. Settling on a location

near Hernando Street and Kerr Street, Shields parked the car in a field and lit it on fire, suffering

burns to his arm and face in the process.

         Lott’s car was found by the police. Lott’s body was later found in Crittenden County,

Arkansas, by the farmer who owned the field in which the body had been left. According to a

medical examiner, Lott had been shot five times including once in the head, was wearing only

his underwear, and was badly burned after having been set on fire.

                                         The Investigation

       Local television stations began airing surveillance-camera footage from the grocery store

showing Shields and Sonny as they approached Lott’s car. On May 21, Sonny turned himself in

to the Memphis Police Department, making statements that implicated himself, but largely

blaming Shields. United States v. Shields, 480 F. App’x 381, 385 (6th Cir. 2012).

       Shields, meanwhile, went to his aunt’s home, where he explained that he had been

working on a car and been injured in a car-battery fire. Shields changed clothes and shoes and

asked for a ride to Grenada, Mississippi, where he could meet up with his girlfriend. Shields told

his girlfriend that he had been injured in a barbecuing accident. His girlfriend took Shields to a

nearby hospital, where he checked in under the pseudonym “Willie Oliver.” The hospital

transferred him to a burn center in Greenville, Mississippi, where Shields continued to use the

pseudonym.




                                                 3
No. 15-5609, Shields v. United States


        Sonny told the police where to find Shields. Local law enforcement took Shields into

custody in Greenville, and Memphis Police Detective Joseph Pearlman and Sergeant Jasper Clay

drove down to Greenville on May 24. When Pearlman and Clay arrived, Shields began to tell

them, unprompted, that he was not a killer and that he wanted to tell them his side of the story.

Clay stopped Shields and proceeded to go with him to the U.S. Marshals’ office at the federal

courthouse in Greenville, where Shields was due to be arraigned.

        After giving Shields an opportunity to eat, Pearlman and Clay entered his holding cell

and presented Shields with a Miranda-waiver form that lists the Miranda rights.1 Pearlman

testified that his practice was first to turn the form over and ask the suspect about his education

level, literacy, mental disabilities, and any recent pain-medicine or drug consumption, and then

to ask the suspect to read the first line of the form out loud and the remainder of the form

silently. Pearlman testified that he followed this practice with Shields, who read the first line of

the form aloud.

        Shields then said “I know my rights, I’ve been arrested before, I know I don’t have to talk

to you if I don’t want to.” Appellant’s Br. 9. Pearlman testified that Shields then said, “I can

stop talking any time I want to stop.” Shields also printed his name on the Miranda waiver form

and signed it. According to Pearlman, Shields specifically stated “I understand my Miranda

rights,” and he “was very cognizant and very aware and very eager to talk.”

        On the back of the Miranda waiver form, Pearlman had noted that Shields told him that

he had been in special-education classes in high school, that he had dropped out in the 11th


        1
           The waiver form articulated the rights as follows: (1) “You have the right to remain silent.”
(2) “Anything you say can be used against you in court.” (3) “You have the right to talk to a lawyer for advice
before we ask you any questions and to have him with you during questioning.” (4) “If you cannot afford a lawyer,
one will be appointed for you before any questioning if you wish.” (5) “If you decide to answer questions now
without your lawyer present, you will still have the right to stop answering at any time. You also have the right to
stop answering at any time until you talk to a lawyer.”


                                                         4
No. 15-5609, Shields v. United States


grade, and that he “could read some but was not that good at it.” Shields had also told the

detectives that he had taken pain medication for the burns he had suffered five days earlier.

       Shields then gave a 38-minute tape-recorded statement, which would be played for the

jury at trial, implicating himself in Lott’s kidnapping. Shields admitted, among other things, that

he was at the scene of the carjacking, that he rode to the ATM, and that he was present when

Sonny fired his gun at Lott and when Sonny set Lott’s body on fire. Some of Shields’s statement

sought to shift blame to Sonny: Shields said, for example, that he did not know that Sonny had a

gun until the two were approaching Lott’s car, that Sonny threatened to kill Shields if he did not

go along with the plan, that only Sonny fired the gun in the field, and that only Sonny was

responsible for burning Lott’s body.2

                                                 Shields’s Trial

       Shields stood trial in the United States District Court for the Western District of

Tennessee, with Judge Bernice Bouie Donald presiding. On August 19, 2008, Shields’s trial

counsel moved to suppress Shields’s confession on the grounds that it was coerced and not

voluntary. After this motion was made, and before Judge Donald ruled on it, Judge Donald held

a pretrial hearing to determine whether Shields was mentally retarded so as to preclude the

government from seeking the death penalty. The hearing spanned ten full days, including five

days in November 2008 and five days in January 2009. Shields and the government each called

both expert and lay witnesses to testify to Shields’s mental capacity and ability to function.

       Both parties submitted post-hearing memoranda. The parties stipulated to the definition

of mental retardation in the Diagnostic and Statistical Manual of Mental Disorders (Fourth

Edition–Text Revision) (DSM-IV-TR). According to the DSM-IV-TR, a finding of mental

retardation has three requirements: (1) significantly subaverage intellectual functioning as
       2
           Sonny and Shields each maintained that only the other of the two shot Lott.


                                                          5
No. 15-5609, Shields v. United States


demonstrated by an IQ of approximately 70 or lower on an individually administered IQ test; (2)

concurrent deficits or impairments in present adaptive functioning in at least two of various areas

such as communication, self-care, work, and so on; and (3) onset of the mental retardation before

age eighteen.

         On May 11, 2009, Judge Donald issued a 33-page order finding by a preponderance of

the evidence that Shields was mentally retarded and thus ineligible for the death penalty. Among

many other factors, Judge Donald considered Shields’s Wechsler-battery IQ scores, which are

summarized as follows:3

        IQ Test              Year        Full Scale Score            Verbal IQ               Performance IQ
      WISC-R                 1989                 69                      69                          72
      WISC-R                 1992                 73                      68                          82
      WISC-III               1995                 70                      69                          75
      WAIS-R                 1997                 68                      67                          70
      WAIS-III               2005                 68                      73                          68

         Judge Donald noted that when Shields was sixteen, “the Social Security Administration

determined that [Shields’s] IQ scores were at the high end of the mentally retarded range and

found several deficits in adaptive functioning,” qualifying Shields for Supplemental Security

Income (SSI) payments. When Shields was twenty-one, the Social Security Administration

concluded that Shields was mentally retarded but that he “did not qualify for [additional]

disability benefits because . . . there were occupational roles [that he] was capable of fulfilling.”

Judge Donald also found that Shields had sporadic employment history including jobs as a


         3
          Shields was born on May 6, 1981. The WISC is the Wechsler Intelligence Scale for Children; the WAIS
is the Wechsler Adult Intelligence Scale. The “-R” suffix indicates a revised version; “-III” indicates a third edition.
The Wechsler IQ tests gained widespread currency in the 1960s. Although some of the IQ scores are over 70, Judge
Donald considered that the scores were sufficiently low to satisfy the DSM-IV-TR standard. As part of her
reasoning, Judge Donald considered the Flynn Effect, a phenomenon by which observed IQ scores generated by a
given IQ test are said to increase, on average, by approximately three points for every ten years that the IQ test has
been on the market. While Judge Donald declined to use the Flynn Effect to impose a mechanical downward
adjustment of any of the IQ scores, the Flynn Effect could account for much of Shields’s four-point score increase
between the 1989 and 1992 WISC-R test administrations.


                                                           6
No. 15-5609, Shields v. United States


restaurant dish washer and a furniture mover, although “as an adult he has had no apparent

ambition or goals in life” and “has always depended on a woman benefactor.”

       Only after this extensive inquiry into Shields’s mental capacity did Judge Donald return

to a number of Shields’s pretrial motions including his motion to suppress his confession. Judge

Donald held an evidentiary hearing on the motion to suppress on August 13, 2009, and denied

the motion four days later. Notably, although Shields’s motion sought to suppress his confession

on the grounds that it was not voluntary, without arguing that it was not knowing and intelligent,

Judge Donald specifically found not only that Shields confessed of his own free will—i.e.,

voluntarily—but also that Shields had made a knowing an intelligent waiver under Miranda:

               After Defendant had eaten his lunch, the officers inquired of Defendant
       how he felt and whether he was in pain. Defendant responded that he was in some
       pain, but felt comfortable and well enough to talk to the officers. After the officers
       were satisfied that Defendant was both mentally and physically able to make a
       statement, Sgt. Clay apprised Defendant of his Miranda rights. Defendant was not
       in cuffs or other restraints, but he was in a cell along with Detective Pearlman and
       Sgt. Clay.

               Defendant was alert and attentive and manifested no outward signs of
       being incoherent or otherwise incapable of giving a knowing, intelligent, and
       voluntary waiver of his rights. Using the term “Miranda” specifically, Defendant
       stated that he knew his rights and wanted to make a statement. After being read
       his Miranda rights, Defendant signed a waiver of rights form. Detective Pearlman
       and Sgt. Clay witnessed Defendant’s signature at approximately 1:00 p.m.
       Defendant thereafter proceeded to make a statement about his involvement in the
       alleged offenses. Officers tape recorded their questions and Defendant’s answers.
       At a few points it was necessary to stop the tape briefly to inquire whether it was
       time for Defendant’s court appearance, but these pauses did not result in the
       omission of any material parts of Defendant’s interview.


       In her order, Judge Donald “credit[ed] Detective Pearlman’s testimony that [Shields] did

not manifest signs of being incapable of a knowing, intelligent, and informed waiver of his

rights” (emphasis added) when he agreed to speak to Pearlman and Clay. Even though Shields’s

defense counsel did not mention Miranda in his motion to suppress Shields’s statement, Judge



                                                 7
No. 15-5609, Shields v. United States


Donald apparently conducted a full Miranda-waiver inquiry and concluded that nothing stood in

the way of Shields’s making an effective Miranda waiver and confession.

       Jury trial commenced on October 19, 2009, and the jury returned a guilty verdict on

October 23, 2009. Shields’s trial counsel did not object to the playing of Shields’s confession

video at trial other than objecting to the use of portions of the video that were hard to understand,

and to the accuracy of the captions superimposed on the video during those portions. Shields,

480 F. App’x at 388 n.5.

       A panel of our court affirmed Shields’s conviction, over Judge Clay’s dissent, in 2012.

Id. at 381. Shields filed a motion to vacate his sentence on September 30, 2013. The district

court denied Shields’s motion on April 8, 2015, and denied a certificate of appealability. In

2016, noting that Judge Clay had dissented on the issue of whether Shields’s Miranda waiver

was knowing and intelligent, we granted a certificate of appealability on the sole issue of

whether trial counsel was ineffective in failing to argue that the Miranda waiver was not

knowing and intelligent.

                                                 II

       We review de novo a district court’s denial of a § 2255 motion to vacate a sentence for

ineffective assistance of counsel. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

       To be entitled to relief, Shields has the burden of proving by a preponderance of the

evidence that he received constitutionally ineffective assistance of counsel.         Ibid.   Under

Strickland v. Washington, a claim of ineffective assistance requires showing that “counsel’s

representation fell below an objective standard of reasonableness,” 466 U.S. 668, 688 (1984),

and that there is a “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different,” id. at 694. “A reasonable probability is a




                                                 8
No. 15-5609, Shields v. United States


probability sufficient to undermine confidence in the outcome.” Ibid. “It is not enough . . . to

show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.

Counsel’s errors must be “so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id. at 687; see also Harrington v. Richter, 562 U.S. 86, 112 (2011) (“The

likelihood of a different result must be substantial, not just conceivable.”).

                A. Trial Counsel’s Performance Was Not Objectively Deficient

        An attorney’s performance is deficient under Strickland when, “in light of all the

circumstances, the identified acts or omissions were outside the wide range of professionally

competent assistance.” 466 U.S. at 690. An attorney is “strongly presumed to have rendered

adequate assistance.” Ibid. An attorney’s action that “might be considered sound trial strategy”

is not constitutionally deficient. Id. at 689.

        Shields argues that his trial counsel was ineffective for failing to move to suppress

Shields’s confession on the grounds that Shields’s mental retardation prevented Shields from

making a knowing and intelligent Miranda waiver.             True, Miranda has two dimensions:

“voluntariness and comprehension.” Garner v. Mitchell, 557 F.3d 257, 263 (6th Cir. 2009) (en

banc). And trial counsel attacked only the voluntariness of Shields’s Miranda waiver and not his

comprehension of it.

        But mental retardation itself does not prevent a defendant from comprehending—and

choosing to waive—Miranda rights, and Shields points to no case law to tell us otherwise. See

Garner, id. at 266 (where defendant with IQ of 76 “was not so mentally retarded that officers

had reason to believe that he could not understand his rights,” and where his “conduct, speech,

and appearance at the time of interrogation indicated that his waiver was knowing and

intelligent, notwithstanding his diminished mental capacity,” defendant’s confession to setting




                                                  9
No. 15-5609, Shields v. United States


house fire that killed five children was not obtained in violation of Miranda). Shields has the

burden to carry and we have never held that a mentally retarded person like Shields (i.e., a

person with an IQ of 70 or below, with adaptive deficits, whose mental retardation manifested

itself by age eighteen) lacks the capacity to make a knowing and intelligent Miranda waiver

based on mental retardation alone. Cf. United States v. Macklin, 900 F.2d 948, 952–53 (6th Cir.

1990) (noting that the right to make meaningful statements like confessions is based on the same

free will that forms the basis “for the myriad valuable rights of citizenship” like the right to vote,

to testify, to contract, or to conduct a defense, and that defendants who have “the ability to avail

themselves of the incidents of citizenship” should not be excluded from the rights or the

responsibilities of citizenship “absent a compelling showing” that they are capable of exercising

neither). Shields’s trial counsel therefore cannot be held to be deficient for failing to argue that

Shields’s mental retardation would intrinsically prevent him from making a valid Miranda

waiver.

          Importantly, on direct appeal, even though the panel did not have to consider the question

of whether Shields’s confession was not knowing and intelligent (because trial counsel did not

raise it), the panel nevertheless did consider the issue. Judge Merritt wrote for the majority:

                  [E]ven absent waiver, Defendant’s claim fails on the merits. In Garner v.
          Mitchell, 557 F.3d 257, 264, 270–71 (6th Cir. 2009), this Court held that a
          defendant in the “‘borderline range of intelligence’” who also suffered from a
          troubled upbringing and poor education knowingly, intelligently, and voluntarily
          waived his Miranda rights. Noting that “diminished mental capacity alone does
          not prevent a defendant from validly waiving his or her Miranda rights,” we
          reasoned that this factor must instead “be viewed alongside other factors,
          including evidence of the defendant’s conduct during, and leading up to, the
          interrogation.” Id. at 264-65.

                 [. . .]

                 Defendant’s cooperativeness and coherency thus demonstrate that he
          grasped both the nature of the charges against him and the consequences that



                                                 10
No. 15-5609, Shields v. United States


       could flow from his interactions with police to effectuate a knowing, intelligent,
       and voluntary waiver of his Miranda rights. See id. at 265.

Shields, 480 F. App’x at 388–89.

       In his brief, Shields argues that if he has difficulty understanding things like “following

multi-step recipes, paying bills, managing a checkbook, . . . the dangers of leaving a hot iron

unattended, or how credit cards work” (although Shields apparently understood enough to

acquire and use credit cards in his own name even if he has not claimed responsibility for paying

his credit-card bills), then “it is difficult to see how Shields could understand and appreciate

complex abstract concepts like the full measure of his rights under [the] Fifth Amendment—

much less what it means to ‘waive’ those rights or the dangers of doing so.” Appellant’s Br. 32.

       In support of this argument, Shields relies on United States v. Betters, 229 F. Supp. 2d

1103, 1107 (D. Or. 2002); United States v. Robles-Ramirez, 93 F. Supp. 2d 762, 766 (W.D. Tex.

2000); and United States v. Aikens, 13 F. Supp. 2d 28, 34 (D.D.C. 1998). These cases are not the

law in our circuit but would not help Shields even if they were. In Betters, the defendant’s

Miranda waiver was held invalid where the mentally ill defendant was “highly intoxicated from

alcohol, possibly under the influence of another drug, off her psychotropic medications, and

likely in a manic state” when she purported to waive Miranda.            In Robles-Ramirez, the

defendant—who had an estimated IQ of either 66 or 72—spoke only Spanish, could neither read

nor write, did not recognize the letters of the alphabet, functioned at a second-grade level in

arithmetic, and functioned at a preschool level in literacy. The defendant there also suffered

from a neurological impairment and generally suffered impairment in his ability to understand

words. 93 F. Supp. 2d at 766. And in Aikens, the defendant was functionally illiterate, “did not

know what the word ‘required’ meant,” 13 F. Supp. 2d at 32, and could not understand Miranda

rights even when explained orally. What all these cases reflect is the general principle that the



                                               11
No. 15-5609, Shields v. United States


validity of a Miranda waiver is based on the totality of such circumstances as the defendant’s

background, education, and conduct during the interrogation. See Garner, 557 F.3d at 264–65.

But none of these cases help Shields make his case that he did not knowingly and intelligently

waive Miranda, or that his mental retardation somehow precluded him from doing so. Instead,

the facts indicate that Shields knew his Miranda rights, understood how to waive or invoke them,

and—more than simply acquiescing to a law enforcement officer’s invitation to talk—asserted in

considerable and correct detail his knowledge of the rights he wished to waive in order to make a

confession. Thus, Shields has not carried his burden of proving that his trial counsel was

constitutionally ineffective for failing to argue that Shields’s mental retardation made his

Miranda waiver unknowing or unintelligent.

                              B. Shields Cannot Show Prejudice

       Moreover, Shields cannot possibly show prejudice as Strickland requires.              Judge

Donald’s eight-page order denying Shields’s motion to suppress makes clear that Judge Donald

did in fact consider not only the voluntariness of Shields’s confession but also whether it was

knowing and intelligent under Miranda. To prevail, Shields would have to show a reasonable

likelihood that if his trial counsel had simply thought to argue to suppress Shields’s statement as

unknowing or unintelligent, Judge Donald would have suppressed it—and that the result of

Shields’s trial would have been different. But the likelihood that Judge Donald would have

suppressed Shields’s confession if only Shields’s trial counsel had uttered one of the magic

words “Miranda” or “knowing” or “intelligent” is essentially nil in light of the fact that Judge

Donald—who knew all the facts concerning both Shields’s mental faculties and his confession—

expressly ruled that Shields’s confession was voluntary and knowing and intelligent. Judge




                                                12
No. 15-5609, Shields v. United States


Donald denied the motion to suppress only after holding both a ten-day evidentiary hearing on

Shields’s mental capacity and a separate evidentiary hearing on the motion to suppress.

                                        CONCLUSION

       In sum, the district court properly denied Shields’s motion to vacate his sentence.

We therefore AFFIRM.




                                               13
No. 15-5609, Shields v. United States


       HELENE N. WHITE, Circuit Judge, concurring in the result.

       I concur in the result because Shields’s confession added little to the eyewitness

testimony, and that testimony, together with Shields’s burns, would have resulted in his

conviction with or without his confession.

       I would not conflate the issue whether Shields’s confession was voluntary—the issue

decided at the suppression hearing—with the issue whether he was capable of waiving his

Miranda rights.

                                                 I

       First, trial counsel was deficient in failing to argue Shields’s waiver was not knowing and

intelligent. “A reviewing court must judge the reasonableness of counsel’s actions on the facts

of the defendant’s case, viewed from counsel’s perspective at the time.” Higgins v. Renico,

470 F.3d 624, 631–32 (6th Cir. 2006).

       Following a ten-day Atkins hearing, the district court issued a thirty-three page order

explaining in detail Shields’s mental limitations and concluding he is mentally retarded. Soon

after the Atkins hearing, the district court held a hearing on trial counsel’s motion to suppress.

Given the obvious connection between Shields’s mental limitations and his capacity to

knowingly and intelligently waive Miranda rights, trial counsel’s failure to advance that

argument is incomprehensible. Trial counsel filed his motion to suppress on August 19, 2008,

after the government produced Shields’s recorded statement. Trial counsel did not supplement

the motion to suppress to argue that Shields’s waiver of Miranda rights was not knowing and

intelligent, even though the district court determined that Shields’s functioning is that of a child

in the range of eight to eleven years old, PID 5988, and he exhibits “deficits or impairments in

present adaptive functioning” in multiple areas including functional academic skills, home




                                                14
No. 15-5609, Shields v. United States


living, work, use of community resources, and self-direction. PID 5978, 5988, 5990–94. The

court also observed that Shields lacks the ability to engage in “meaningful conversation,” and

that although he may provide answers to questions that sound plausible, further probing will

show that “the answer originally given is . . . unreliable.” PID 5974. These findings provided

strong support for the argument that Shields’s waiver of his Miranda rights was not knowing and

intelligent.4

        Second, there was a reasonable probability that the district court would have granted a

motion to suppress brought on the omitted grounds. The majority concludes that the district

court’s purported finding that Shields’s Miranda waiver was knowing and intelligent evidences

that there is no reasonable probability that the district court would have granted a motion to

suppress brought on those grounds. Maj. Op. at 12 (“the likelihood that Judge Donald would

have suppressed Shields’s confession if only Shields’s trial counsel had uttered one of the magic

words “Miranda” or “knowing” or “intelligent” is essentially nil in light of the fact that Judge

Donald . . . expressly ruled that Shields’s confession was voluntary and knowing and

intelligent.” (emphasis in original)). However, trial counsel’s motion to suppress Shields’s

statement was brought solely on voluntariness grounds. The district court did not undertake the

fact-specific inquiry required to determine whether Shields knowingly and intelligently waived

his Miranda rights because the issue was not before it. Further, no part of the earlier Atkins

hearing addressed Shields’s ability to understand Miranda warnings. Cf. Maj. Op. at 7, 12. In

ruling on the motion to suppress, the district court simply observed that Shields was “alert and

attentive” and “did not manifest signs of being incapable of a knowing, intelligent, and informed

waiver.” PID 6070. These statements do not indicate or suggest that the court considered

        4
        Judge Clay concluded the same in his dissent in Shields v. United States, 480 F. App’x
381 (2012).


                                               15
No. 15-5609, Shields v. United States


whether Shields’s mental retardation contributed to an invalid waiver of Miranda rights. The

inquiry would have differed had trial counsel argued Shields’s waiver of his rights was not

knowing and intelligent: whether the officers had reason to believe Shields comprehended the

warnings and whether he had the actual mental ability to understand the warnings at the time of

the interrogation. Garner v. Mitchell, 557 F.3d 257, 263 (6th Cir. 2009) (“while our primary

focus must remain on what the interrogating officers could have concluded about Garner’s

ability to understand the warnings, we may consider later-developed evidence of a defendant’s

actual mental ability to understand the warnings at the time of the interrogation. This is because,

if it turns out by subsequent inquiry that a defendant in his mind could not actually understand

the warnings, the finder of fact may be more inclined to determine in a close case that the police

should have known that the defendant could not understand.”)

       Here, although Shields told Pearlman and Clay, the interrogating officers, that he had

been in special education classes, dropped out of high school, could read some but was not good

at it, and that he had taken pain medication that morning for the burns that Pearlman

acknowledged were all over Shields’s face and arms, the officers explained none of the Miranda

rights to Shields. PID 7400-01. Rather, Pearlman had Shields read the first line of the Miranda

rights form out loud, i.e., “You have the right to remain silent.” Pearlman testified that Shields

said he knew his rights, had been arrested before, and knew that he did not have to talk to the

officers if he did not want to. The officers did not follow up to determine whether Shields

understood his remaining rights, particularly the rights to talk to a lawyer before being

questioned and to have a lawyer present during questioning. Nor did the officers follow up to

determine whether Shields understood the warning that anything he said could be used against

him in court. Had the issue whether Shields’s waiver of Miranda rights was knowing and




                                                16
No. 15-5609, Shields v. United States


intelligent been before the district court, there is a reasonable probability that the district court

would have concluded that there were strong grounds for finding an invalid waiver–definitely

stronger than in Garner, 557 F.3d 257, on which the majority relies. Maj. Op. at 9–10. In

Garner, in stark contrast to the instant case, the interrogating officers “carefully read” Garner his

Miranda rights and Garner “stated clearly . . . that he understood those rights.”1 Id. at 265.

                                                 II

       Nevertheless, I concur in the result because I conclude the admission of Shields’s

confession did not affect the outcome of the trial. As described in the majority opinion, Parker

gave a detailed first-hand account of Sunny’s and Shields’s actions. The only part he did not

observe was who shot Lott in the woods.               But Shields’s confession does not provide

incriminating evidence on that point, as Shields did not admit to being the shooter. Parker’s

testimony and Shields’s burns, taken together, make it highly improbable that suppression of the

statement would have affected the outcome of the trial. On that basis, I concur.




       1
          Garner was nineteen, had a troubled upbringing, poor education, and an IQ of 76 that
placed him in the borderline range of intelligence. Garner, 557 F.3d at 263. Unlike Shields,
Garner completed 12th grade and told the police that he could read. Id. at 276 (Moore, J.,
dissenting). Most importantly, unlike Shields’s interrogation, the officers in Garner confirmed
that Garner understood each of the rights and the consequences of waiving them by verifying
each provision individually, “Garner was carefully read his Miranda rights and stated clearly to
officers that he understood those rights.” Garner, 557 F.3d at 265 (emphasis added).



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