                                 RECOMMENDED FOR FULL-TEXT PUBLICATION
                                      Pursuant to Sixth Circuit Rule 206
                                              File Name: 08a0177p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                     X
                             Petitioner-Appellant, -
 ROY B. JACKSON,
                                                      -
                                                      -
                                                      -
                                                          No. 07-1247
          v.
                                                      ,
                                                       >
 KENNETH T. MCKEE, Warden,                            -
                            Respondent-Appellee. -
                                                     N
                      Appeal from the United States District Court
                   for the Eastern District of Michigan at Ann Arbor.
                No. 05-60131—John Corbett O’Meara, District Judge.
                                             Argued: May 1, 2008
                                     Decided and Filed: May 12, 2008
               Before: BATCHELDER, SUTTON, and FRIEDMAN, Circuit Judges.*
                                              _________________
                                                    COUNSEL
ARGUED: Marla R. McCowan, STATE APPELLATE DEFENDER OFFICE, Detroit, Michigan,
for Appellant. Brian O. Neill, MICHIGAN DEPARTMENT OF ATTORNEY GENERAL, Lansing,
Michigan, for Appellee. ON BRIEF: Marla R. McCowan, Michael L. Mittlestat, STATE
APPELLATE DEFENDER OFFICE, Detroit, Michigan, for Appellant. Brad H. Beaver, OFFICE
OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        SUTTON, Circuit Judge. A state court jury convicted Roy Jackson of felony murder, armed
robbery and carrying a firearm during the commission of a felony. The Michigan Court of Appeals
affirmed the felony-murder and firearm convictions and reversed the armed-robbery conviction. In
reaching these conclusions, the state court denied Jackson’s claims that his confession was
involuntary, that his Miranda waiver was not knowing or intelligent and that the admission of non-
testimonial hearsay statements violated the Confrontation Clause. Because the state court decisions
were neither contrary to, nor an unreasonable application of, Supreme Court precedent, we affirm
the district court’s denial of Jackson’s habeas petition.


         *
           The Honorable Daniel M. Friedman, Senior Circuit Judge of the United States Court of Appeals for the Federal
Circuit, sitting by designation.


                                                          1
No. 07-1247           Jackson v. McKee                                                           Page 2


                                                   I.
       On December 11, 2000, a group of men robbed a Dollar Value store in Detroit, Michigan,
and shot and killed the store’s owner, Hani Zebib. After an initial investigation, the police contacted
Jackson and asked him to come to the police station to answer questions about the incident—which
Jackson did at 8:00 a.m., January 6, 2001.
        At 10:30 a.m. that morning, Detroit Police Investigator Barbara Simon advised Jackson of
his Miranda rights, which Jackson waived, and began interrogating him. During the two-hour
interrogation, Jackson denied any involvement in the crimes. The officers nonetheless arrested
Jackson and moved him to the homicide department for holding. At 3:00 p.m., Simon again
interrogated Jackson, and Jackson again denied committing the crimes. After the second round of
questioning, officers returned Jackson to his holding cell in the homicide department, where he sat
in isolation for the rest of the day.
       The next day, officers interviewed Tykee Ross. As part of the interrogation, the officers
gave Ross a polygraph examination, and Ross eventually signed a statement implicating Jackson in
the robbery and murder.
        After Ross fingered Jackson in the crimes, the officers interrogated Jackson again. At
7:30 p.m., Sergeant Maria Cox-Borkowski again advised Jackson of his Miranda rights, which he
again waived, and proceeded to interrogate him. During the hour-long interrogation, Jackson
continued to deny any involvement in the crimes, after which the officers asked Jackson to take a
polygraph test. At 9:55 p.m., Investigator Andrew Sims advised Jackson of his rights, and, at 11:55
p.m., Sims began the test. The polygraph ended at 12:10 a.m. that night, with Jackson still denying
any involvement in the crimes. After the polygraph, Sims continued to interrogate Jackson, and,
twenty to thirty minutes later, Jackson changed his story, confessing to the robbery and the murder.
       At 2:15 a.m. later that night, Simon again met with Jackson and advised him of his rights
once more. Jackson told her that he understood his rights and, at 2:40 a.m., he signed a waiver of
his Miranda rights. He then signed a statement admitting that he shot Zebib while robbing the store
with Ross and Demel Dukes. Jackson concluded the statement by saying, “I’m sorry for what
happened. I didn’t mean for anyone to be shot and killed. I’m so very sorry.” JA 107.
        The State charged Jackson, Ross and Dukes with armed robbery, felony murder and
possession of a firearm during the commission of a felony. The three defendants were tried jointly
but before two separate juries—one for Jackson, the other for Ross and Dukes—and the juries
convicted all three defendants of felony murder, Mich. Comp. Laws § 750.316, and armed robbery,
id. § 750.529, and Jackson’s jury also convicted him of possessing a firearm during the commission
of a felony, id. § 750.227b.
       The court sentenced Jackson to life imprisonment without the possibility of parole on the
murder count, a concurrent term of 18–30 years on the robbery count and a consecutive term of two
years on the felony-firearm count. Jackson appealed to the Michigan Court of Appeals. The
Michigan Court of Appeals reversed Jackson’s armed-robbery conviction, but it affirmed his felony-
murder and firearm convictions. The Michigan Supreme Court denied leave to appeal.
        Jackson filed a habeas petition in federal court, challenging (1) the state court’s conclusion
that his confession was voluntary, (2) its conclusion that his Miranda waiver was knowing and
intelligent and (3) the state court’s admission of hearsay statements at trial. The district court denied
Jackson’s petition but granted a certificate of appealability on each issue.
No. 07-1247           Jackson v. McKee                                                        Page 3


                                                 II.
        This case, the parties agree, is covered by the Anti-Terrorism and Effective Death Penalty
Act of 1996. 28 U.S.C. § 2254. To prevail on any of his three requests for habeas relief, as a result,
Jackson must show not only that the state courts erred in ruling on his constitutional claim but also
that their decision was contrary to, or an unreasonable application of, Supreme Court precedent. See
id. § 2254(d).
                                                 A.
         Jackson first argues that the state court’s admission of his confession at his criminal trial
violated due process because he made it involuntarily. See Miranda v. Arizona, 384 U.S. 436, 462
(1966). “[C]ertain interrogation techniques,” it is true, “are so offensive to a civilized system of
justice that they must be condemned under the Due Process clause.” Miller v. Fenton, 474 U.S. 104,
109 (1985). Accordingly, when a criminal defendant can show that “coercive police activity”
caused him to make an involuntary confession, due process prohibits the government from relying
on the statement. Colorado v. Connelly, 479 U.S. 157, 167 (1986); see also Reck v. Pate, 367 U.S.
433, 440 (1961) (holding that an interrogation violates due process if the suspect’s will is overborne
at the time he confessed). Whether an interrogation rises to the level of coercion turns on a spectrum
of factors: the age, education and intelligence of the suspect; whether the suspect was advised of
his Miranda rights; the length of the questioning; and the use of physical punishment or the
deprivation of food, sleep or other creature comforts. Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973).
        Consistent with these factors, the Michigan courts reasonably determined that Jackson’s
interrogation was not coercive. Jackson voluntarily reported to the police station and agreed to be
questioned. Before asking any questions, the officers advised Jackson of his Miranda rights, which
he waived no fewer than four times during the interrogations. And when Jackson ultimately
confessed, he added a statement of remorse, saying he was “sorry for what happened,” JA
107—suggesting that it was his conscience, not the police, that overbore his prior efforts to disclaim
any responsibility for the robbery and murder. Other contextual clues point in the same direction.
Jackson told the officers that he could read and write and that he understood the rights he was
waiving. At no point during the questioning did Jackson indicate that he did not understand his
rights. He never said he was tired, confused or uncomfortable. And he confirmed in his written
confession that he was not “deprived of food, water or use of the restroom.” JA 567.
       Nor was Jackson unfamiliar with the criminal justice system. He had six juvenile
indictments filed against him prior to this arrest. He was not ill, injured or under the influence of
drugs or alcohol. He never asked for an attorney. He never asked the agents to stop questioning
him. And he acknowledges that he was not threatened, harmed or promised anything to compel his
confession. All things considered, this is not the “rare” case in which a suspect “can make a
colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law
enforcement officers adhered to the dictates of Miranda.” Berkemer v. McCarty, 468 U.S. 420, 433
n.20 (1984). Jackson, in short, has not shown that the prophylactic Miranda warnings were not
prophylactic enough.
         Jackson counters with the following facts: the interval between his first interrogation and
his last one was 40 hours; he signed his written confession in the early morning hours at the end of
these serial interrogations; and he could read at only a third-grade level. The officers’ questioning,
however, never exceeded two and a half hours at a time; Jackson never said he did not understand
the Miranda warnings, even after receiving them multiple times; and he never expressed any lack
of understanding regarding the confession he was signing.
No. 07-1247           Jackson v. McKee                                                          Page 4


        These circumstances do not rise to the level of the kinds of involuntary-confession fact
patterns that the Supreme Court has condemned; still less do they show that the Michigan courts
unreasonably applied these precedents—most of which did not even involve Miranda warnings, as
here. See, e.g., Mincey v. Arizona, 437 U.S. 385, 398–402 (1978) (holding that a confession was
involuntary where officers questioned the defendant over his objection for four hours while he was
incapacitated and sedated in an intensive-care unit); Greenwald v. Wisconsin, 390 U.S. 519, 520–21
(1968) (holding that a confession was involuntary where officers questioned the defendant for more
than 18 hours while depriving him of food, sleep and medication); Beecher v. Alabama, 389 U.S.
35, 38 (1967) (holding that a confession was involuntary where officers, already having wounded
the defendant, ordered him at gunpoint to confess or be killed); Davis v. North Carolina, 384 U.S.
737, 745–47 (1966) (holding that a confession was involuntary where officers interrogated the
defendant over 16 days and held him incommunicado in a closed cell without windows and with
limited food); Reck, 367 U.S. at 441–42 (holding that a confession was involuntary where the
officers held the defendant for four days with inadequate food and medical attention); Culombe v.
Connecticut, 367 U.S. 568, 626 (1961) (holding that a confession was involuntary where officers
held the defendant and subjected him to five days of “systematic” and continuous questioning);
Payne v. Arkansas, 356 U.S. 560, 566–67 (1958) (holding that a confession was involuntary where
officers held the defendant incommunicado for three days with little food and threatened to expose
him to mob violence if he did not confess).
        Ashcraft v. Tennessee, 322 U.S. 143 (1944), does not give Jackson’s argument traction. It
involved an interrogation in which the suspect was questioned for 36 consecutive hours and denied
sleep and rest. Id. at 153–54. Yet Jackson was never interrogated for more than two and a half
hours at a time and he was never prevented from sleeping or resting. There also was a considerable
gap in time—24 hours—between his confession and the prior interrogation. Cf. Culombe, 367 U.S.
at 626–27 (“[In] cases in which we have sustained convictions resting on confessions made after
prolonged detention, questioning . . . had been discontinued during a considerable period prior to
confession, so . . . we did not find . . . that police interrogators had overborne the accused.”).
        Haley v. Ohio, 332 U.S. 596 (1948), does not change matters. Police arrested a 15-year-old
male in his home, took him to the police station and questioned him from midnight to 5:00 a.m.,
when he confessed. Id. at 598. The Court ruled that the “age of petitioner, the hours when he was
grilled, the duration of his quizzing, the fact that he had no friend or counsel to advise him, the
callous attitude of the police towards his rights combine to convince us that this was a confession
wrung from a child by means which the law should not sanction.” Id. at 600–01. Jackson, by
contrast, was older (17 years old); he was questioned intermittently, not continuously; he was told
repeatedly of his rights to counsel and to remain silent; and no evidence shows that the officers took
a “callous attitude” toward his rights. Id. More to the point, the question is not whether a state court
could plausibly extend Haley to this fact pattern, a point we need not decide; the question is whether
the Michigan courts acted unreasonably in declining to extend this pre-Miranda precedent here.
They did not.
                                                  B.
        Jackson next argues that his Miranda waiver was not knowing or intelligent. To be effective,
a Miranda waiver must be “made with a full awareness both of 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). That does not mean, however, that the police must supply a suspect with enough
“information to help him calibrate his self-interest in deciding whether to speak or stand by his
rights,” as such additional information goes only to “the wisdom of a Miranda waiver, not its
essentially voluntary and knowing nature.” Colorado v. Spring, 479 U.S. 564, 576–77 (1987).
No. 07-1247            Jackson v. McKee                                                           Page 5


        The circumstances surrounding Jackson’s waiver confirm that the state court reasonably
applied Supreme Court precedent in determining that Jackson was aware of the nature of the right
he was waiving and the consequences of his decision to waive it. Over the course of Jackson’s
interrogation, officers advised him of his Miranda rights at least four times. The officers read his
rights to him, asked him to read his rights and asked him to repeat his rights as he understood them.
Jackson waived his rights both orally and in writing. Jackson stated that he understood his rights,
and at no point did Jackson indicate that he did not want to waive them.
        When Jackson confessed, he remained lucid, coherent and remorseful. He confessed first
in an oral statement, then he reduced that statement to writing. In his written statement, Jackson
described the crime:
        It was December 11, 2000. It was about four o’clock p.m. It was me, Tykee and
        Demel. We all went up to the Dollar Store to rob the store. I don’t remember if
        anyone was in the store buying anything. I went in the store first and Tykee and
        Demel came in behind me. I had the gun. The man was behind the counter. I told
        him to open up the cash register. The man just looked at me. I fired one shot up in
        the air. The man opened up the cash register and Demel went behind the counter and
        got the money out of the cash register. I told the man not to move. I saw that the
        man was backing up some. He kept on moving. I told him again don’t move. He
        moved and that’s when I shot him. After that we all ran out of the store. After we
        ran out of the store we all went over to a vacant house on Cherrylawn. After we got
        to the vacant house Demel had the money. Demel gave me my part of the money
        and he gave Tykee his part of the money. After that we all left out of the vacant
        house.
JA 564–65. After offering this description of the crime, Jackson responded in writing to questions
from Officer Simon, providing additional details about the crime and explaining that he robbed the
store “[b]ecause it was close to Christmas[,] and [he] wanted to buy [his] baby something.” JA 567.
         Dr. Edith Montgomery, the State’s expert witness, agreed that Jackson’s waiver was knowing
and intelligent. During a pre-trial evaluation, Montgomery read each Miranda right to Jackson and
asked him to explain what each of them meant. Jackson explained his rights as he understood them:
“I ain’t got to talk,” JA 72; “if I go to court anything I said can be used against me,” id.; “I ain’t got
to say nothing until an attorney gets there,” id.; and “[t]hey will pay for me an attorney,” id.
        Jackson responds that, because he required special-education classes and because he reads
at only a third-grade level, his waiver could not have been knowing and intelligent. But those facts
alone do not undermine a waiver—and no authority says they do. While the evidence showed that
Jackson had difficulty reading, it also showed that he had average problem-solving skills and
intelligence. Jackson waived his rights not only after reading them, moreover, but also after having
them read to him and after accurately explaining to the officers what he understood his rights to be.
And only one of the waivers of his Miranda rights was in writing; he gave the other three waivers
orally. Because “there is nothing cognitively complex about the advice that one has a right to
remain silent and not to talk to the police,” Finley v. Rogers, 116 F. App’x 630, 638 (6th Cir. Nov.
18, 2004); see also Clark v. Mitchell, 425 F.3d 270, 283–84 (6th Cir. 2005), because Jackson had
average problem-solving skills and intelligence and because his considerable prior experience with
the criminal justice system gave him reason to know the consequences of waiving these rights, the
state court did not unreasonably apply Supreme Court precedent in holding that his waiver was
knowing and intelligent.
        Jackson points out that his expert, Dr. Michael Abramsky, testified that Jackson’s mental
deficiencies would have made it impossible for him competently to waive his rights. One answer
No. 07-1247           Jackson v. McKee                                                         Page 6


is this: Dr. Montgomery testified that Jackson’s performance in his evaluations suggested he was
not putting forth full effort and may have exaggerated his deficiencies. Another answer is this: the
parties presented competing accounts of Jackson’s capabilities, and the state court, after weighing
the evidence, determined that Jackson’s waiver was knowing and intelligent. Because Jackson
presents no Supreme Court precedent that calls the state court’s determination into question and
because the evidence reasonably supports that determination, AEDPA requires us to reject this
argument.
                                                  C.
        Jackson next argues that the trial court’s admission of non-testimonial hearsay statements
violated his Sixth (and Fourteenth) Amendment rights under the Confrontation Clause. “In all
criminal prosecutions,” that provision says, “the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI. Because the state court reasonably applied
Supreme Court precedent in denying this claim, we must reject this argument as well.
          At trial, the State introduced testimony from Ramone Neal implicating Jackson in the
robbery and murder. One afternoon, Neal testified, he ran into Ross and asked him for a ride. Ross
refused, telling him that he had to “hurry up and go somewhere . . . we just did a robbery at the
Dollar Store” and Jackson “just shot the man in the stomach.” JA 396–97. Jackson, Ross told Neal,
was “nothing to f*** with.” JA 420. Conceding then (as he does now) that these statements were
non-testimonial, see Davis v. Washington, 547 U.S. 813, 822 (2006), Jackson objected to the
testimony on Confrontation Clause grounds.
       When Jackson raised this objection, Supreme Court precedent said that non-testimonial
hearsay statements implicated a defendant’s confrontation rights. See Ohio v. Roberts, 448 U.S. 56,
66 (1980). Under Roberts, Ross’ non-testimonial hearsay statements could be admitted, consistent
with Jackson’s Confrontation Clause rights, only if Ross was unavailable to testify and if the
statements bore an “adequate indicia of reliability.” Id. (internal quotation marks omitted). A
statement possesses an “adequate indicia of reliability” either if it is a “firmly rooted” hearsay
exception or if it offers other “particularized guarantees of trustworthiness.” Id.
         The wrinkle is that, since Jackson’s trial, the Supreme Court has changed course, see
Crawford v. Washington, 541 U.S. 36, 61–62 (2004), overruling Roberts and recognizing that non-
testimonial hearsay does not implicate the Confrontation Clause, see Davis, 547 U.S. at 823–26.
All of which prompts this question: what happens under AEDPA-constrained habeas review when
a state court decision on direct review may amount to an unreasonable application of Supreme Court
precedent but that precedent is overruled before a federal court entertains the habeas petition?
        Jackson argues that, because he can satisfy the requirements of 28 U.S.C. § 2254(d)(1)—by
showing that the court’s decision “involved an unreasonable application of[] clearly established
Federal law, as determined by the Supreme Court of the United States”—habeas relief is
appropriate. The State counters that § 2254(d)(1) is a necessary, but not a sufficient, condition for
habeas relief. Even if he could meet the “unreasonable application” requirement set forth in
§ 2254(d)(1), Jackson needs more. Section 2254(a) independently limits habeas relief to situations
where a person “is in custody in violation of the Constitution or laws or treaties of the United
States”—and that would not appear to be true here because Jackson is not currently being held in
violation of the Constitution. See Flamer v. Delaware, 68 F.3d 710, 725 n.14 (3d Cir. 1995)
(“Teague[’s] [non-retroactivity rule] only applies to a change in the law that favors criminal
defendants.”); cf. Danforth v. Minnesota, 128 S. Ct. 1029, 1047 (2008) (“It would be quite wrong
to assume . . . that the question whether constitutional violations occurred in trials conducted before
a certain date depends on how much time was required to complete the appellate process.”);
Lockhart v. Fretwell, 506 U.S. 364, 373 (1993) (“[T]he State will benefit from our Teague decision
No. 07-1247           Jackson v. McKee                                                           Page 7


in some federal habeas cases, while the habeas petitioner will not. This result is not . . . a ‘windfall’
for the State, but instead is a perfectly logical limitation of Teague to the circumstances which gave
rise to it.”).
        Jackson, at any rate, loses either way. Under today’s precedent, Jackson loses because Davis
makes clear that the Confrontation Clause does not prevent the admission of non-testimonial
hearsay. Under yesterday’s precedent, Jackson loses because the state court reasonably applied the
Roberts test. Ross’ statements, the state court concluded, offered “particularized guarantees of
trustworthiness,” Roberts, 448 U.S. at 66, and thus did not violate Jackson’s Confrontation Clause
rights. In support of its decision, the court noted that (1) Ross’ statements to Neal were voluntary,
(2) they were spontaneously made, (3) they were contemporaneous with the crimes, (4) they were
made from one friend to another and (5) they did not reflect an attempt to downplay Ross’ own
involvement but indeed implicated him in the crimes. See Williamson v. United States, 512 U.S.
594, 605 (1994) (noting, under the Roberts test, that “the very fact that a statement is genuinely self-
inculpatory . . . is itself one of the ‘particularized guarantees of trustworthiness’ that makes a
statement admissible under the Confrontation Clause”). In view of the “considerable leeway”
Roberts once granted trial courts to determine whether non-testimonial hearsay statements comply
with the Confrontation Clause, Idaho v. Wright, 497 U.S. 805, 822 (1990), we can safely say that
the state court reasonably applied then-existing Supreme Court precedent in determining that Ross’
statements offered the particularized guarantees of trustworthiness Roberts requires.
                                                  III.
        For these reasons, we affirm.
