RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Abela v. Martin No. 00-2430 ELECTRONIC CITATION: 2004 FED App. 0283P (6th Cir.) File Name: 04a0283p.06 for Appellant. William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. UNITED STATES COURT OF APPEALS COLE, J., delivered the opinion of the court, in which CLAY, J., joined. SILER, J. (pp. 26-27), delivered a separate FOR THE SIXTH CIRCUIT opinion concurring in part and dissenting in part. _________________ _________________ KEVIN MARK ABELA , X OPINION Petitioner-Appellant, - _________________ - - No. 00-2430 v. R. GUY COLE, JR., Circuit Judge. Petitioner Kevin Mark - > Abela, a former Michigan prisoner who was convicted of , manslaughter and carrying a concealed weapon in 1991, WILLIAM MART IN , Director, - appeals the federal district court’s dismissal of his petition for Michigan Department of - a writ of habeas corpus, which he filed pursuant to 28 U.S.C. Corrections, - § 2254 on April 26, 1999. Petitioner contends that: (1) his Respondent-Appellee. - Fifth Amendment rights were violated when police elicited - statements from him following his request for counsel and N when they interrogated him while he was allegedly Appeal from the United States District Court intoxicated, in pain, and on pain medication; (2) his due for the Eastern District of Michigan at Detroit. process and Sixth Amendment rights were violated because No. 99-72095—Robert H. Cleland, District Judge. of prosecutorial misconduct at trial; and (3) he was denied the effective assistance of both trial and appellate counsel. Argued: April 21, 2004 Respondent contends that Abela’s claims are barred by procedural default. Decided and Filed: August 27, 2004 Because we find that Abela’s claims are not barred by Before: SILER, COLE, and CLAY, Circuit Judges. procedural default, and that his Fifth Amendment claim concerning statements elicited after he invoked his right to _________________ counsel is meritorious, we REVERSE the district court’s judgment and REMAND to the district court with COUNSEL instructions to grant the writ of habeas corpus, unless the state elects to retry Abela within ninety days of the date of this ARGUED: James Sterling Lawrence, Detroit, Michigan, for opinion’s entry. Appellant. William C. Campbell, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: James Sterling Lawrence, Detroit, Michigan,
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I. BACKGROUND room, but before being treated for his injuries, Oakland County Police Sergeant Michael McCabe began interrogating A. Factual Background Abela about the events leading up to the stabbing. Abela responded by stating, “maybe I should talk to an attorney by Abela’s convictions stemmed from the stabbing death of the name of William Evans,” and he showed Sergeant Stanley Underwood at a party in the early morning hours of McCabe Evans’s business card. Sergeant McCabe agreed to May 19, 1990. Abela arrived at a party at the home of Allen call Evans for Abela and left the room, presumably to contact Howard in Rochester Hills, Michigan, sometime during the Evans. Upon returning, McCabe made no mention of Evans, evening of May 18. At approximately 1:00 a.m., Abela and and proceeded to read Abela his Miranda rights. Abela then a friend, Ronald Wright, noticed a man, J.J. Sullivan, pushing signed a form waiving those rights and gave a statement to a car out of the driveway of the home. Abela confronted Sergeant McCabe. After being treated at the hospital, Abela Sullivan and an argument ensued; it turned into a fistfight. was taken to the police station. He gave another statement After the fight broke up, Sullivan ran into the house, where he there. In both statements, Abela admitted to stabbing told his older brother, Jerry, that someone had beaten him up. Underwood, but claimed that he did so in self defense. The statements were admitted at trial and used by the prosecution A second fight began when Jerry Sullivan and Allen against Abela. Howard ran outside to confront Abela. Abela’s nose was broken in the fight, which ended with Howard holding Abela B. Procedural History down on the ground. Howard promised Abela that he would release him if he left the party immediately. Abela then left Abela was charged with second degree murder and carrying the party with Wright. a concealed weapon. Prior to trial in the Oakland County Circuit Court, Abela’s counsel filed a motion to dismiss the Upon reaching their car, however, Wright realized that he concealed weapon charge because the knife was not had forgotten his jacket at the party, and he returned to the concealed – Abela carried it in a sheath attached to the outside house to retrieve it. Abela waited at the edge of the driveway. of his belt. The trial judge granted the motion and dismissed Suddenly, however, several people from the party, including the concealed weapon charge on September 12, 1990. On Stanley Underwood, attacked Abela, knocked him down, and November 5, 1990 – outside the fourteen-day time limit surrounded him. Abela was kicked and punched in the face prescribed by Mich. Ct. Rule 2.119(F)(1) – the prosecution and body. Among the group of attackers was Stanley filed a motion for reconsideration of the dismissal. Abela’s Underwood, who, during the course of the brawl, straddled counsel did not object to this motion. On June 3, 1991, the Abela’s chest. Abela thereupon drew a knife from a sheath on trial judge granted the prosecution’s motion for his belt and stabbed Underwood in the chest and left arm reconsideration and reinstated the concealed weapon charge. three times. Underwood died a short time later from the stab wounds. The trial commenced in June 1991. During closing arguments, the prosecutor presented a hypothetical Abela fled to a friend’s house, where he called 911 and told conversation between Abela and Ronald Wright. The the operator that he had stabbed someone. After meeting the prosecutor stated: police back at Howard’s house, Abela was taken to a hospital emergency room for treatment. While at the emergency No. 00-2430 Abela v. Martin 5 6 Abela v. Martin No. 00-2430
Do you think when they [Abela and Wright] got back to statement at the hospital was involuntary because he was that car they were mad as hell? Both of them got shot injured, under the influence of alcohol, and on pain down, pretty damn drunk, they are pretty pissed off. medication at the time of questioning; (3) that the trial court They’ve lost the fight. They’ve been thrown out. improperly granted the prosecution’s untimely motion to They’ve been humiliated . They’ve been embarrassed. reconsider the dismissal of the concealed weapon charge; Not only that, Ron Wright says, “My damn coat’s back (4) that the prosecutor unfairly prejudiced Abela by there. Let’s go get it.” [Abela then replied,] “Ronnie, presenting witness testimony in his closing argument that was better take this [Abela’s knife] when we go back. Ain’t unsupported by the record; (5) that Abela’s trial counsel nobody going to kick our ass anymore. Let’s go back.” provided ineffective assistance; and (6) that Abela’s appellate counsel provided ineffective assistance, constituting “good This statement is the basis for Abela’s prosecutorial cause” for Abela’s failure to raise the other claims in his misconduct claim, which will be discussed below. direct appeal. The motion was denied “for lack of merit on the grounds presented.” People v. Abela, No. 90-101083 Abela was convicted by a jury of voluntary manslaughter (Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the and carrying a concealed weapon on July 24, 1991. He was same six issues on appeal to the Michigan Court of Appeals, sentenced to seven to fifteen years’ imprisonment for the which likewise denied his petition “for lack of merit in the voluntary manslaughter count, and a concurrent forty months grounds presented.” People v. Abela, No. 200930 to five years of imprisonment for carrying a concealed (Mich.Ct.App. July 22, 1997). On August 9, 1997, Abela weapon. again raised these six issues in his delayed application for leave to appeal to the Michigan Supreme Court, which denied Abela appealed his convictions, raising three issues in the his petition in a summary disposition, stating: “Defendant has Michigan Court of Appeals on February 17, 1992. The three failed to meet the burden of establishing entitlement to relief issues were: (1) that his sentence was disproportionate to the under M.C.R. 6.508(D). People v. Abela, 457 Mich. 880, 586 crime; (2) that the trial court erred by reinstating the weapons N.W.2d 923 (Mich. 1998). On August 3, 1998, Abela filed a charge; and (3) that the trial court erred by allowing the petition for certiorari with the U.S. Supreme Court, which prosecution to present rebuttal testimony not raised in its was denied on October 19, 1998. Abela v. Michigan, 525 case-in-chief. The Michigan Court of Appeals affirmed U.S. 948 (1998). Abela’s conviction and sentence in an unpublished disposition. People v. Abela, No. 144005 (Mich.Ct.App. July Abela was released to parole status on March 16, 1998, and 22, 1994). The Michigan Supreme Court denied Abela’s discharged from parole on March 16, 2000, which terminated delayed application for leave to appeal these issues on March his seven to fifteen year sentence for manslaughter. His three 31, 1995. People v. Abela, 448 Mich. 901, 533 N.W.2d 313 to five year sentence for carrying a concealed weapon ended (Mich. 1995). on October 22, 1995. However, it was on April 26, 1999, before his parole term ended, that Abela petitioned for a writ In August 1996, Abela filed a motion for relief from of habeas corpus pursuant to 28 U.S.C. § 2254, raising most judgment in the Oakland County Circuit Court, raising six of the same claims as were in his motion for relief from claims: (1) that his statement at the hospital was judgment (except for his claim that the trial court erred in unconstitutionally elicited and admitted because Sergeant reconsidering its dismissal of the concealed weapon charge). McCabe ignored Abela’s request for an attorney; (2) that his Specifically, Abela asserted that: (1) his statement to police No. 00-2430 Abela v. Martin 7 8 Abela v. Martin No. 00-2430
at the hospital was unconstitutionally elicited and admitted petition, do not render moot his appeal from the district because he had invoked his right to counsel; (2) his statement court’s denial of the petition. He continues to satisfy Article at the hospital was involuntary and inadmissible because he III’s “case or controversy” requirement because of the was injured, intoxicated, and on pain medication at the time continuing collateral consequences to a wrongful criminal of questioning; (3) the prosecutor engaged in misconduct conviction. Spencer v. Kemna, 523 U.S. 1, 8 (1998). during closing argument; (4) trial counsel was ineffective for failing to object to the prosecutor’s untimely motion for B. Whether Abela Procedurally Defaulted on the Claims reconsideration; and (5) appellate counsel was ineffective and in His Habeas Petition that this constitutes “good cause” for any alleged procedural default of the preceeding claims. Respondent contends that because the claims raised by Abela in his habeas petition were raised for the first time in The district court denied the petition for habeas relief on his state post-conviction motion for relief from judgement – October 31, 2000. It held that Abela’s claims were not and not on direct appeal – federal review of his claims is procedurally defaulted, but that they were without merit. This barred by procedural default. It is well-settled that when a Court granted a certificate of appealability on April 20, 2001, state prisoner has “defaulted his federal claims in state court and on October 30, 2002, denied the petition as untimely, and pursuant to an independent and adequate state procedural rule, accordingly, declined to address the merits. Abela v. Martin, federal habeas review of the claims is barred” unless the 309 F.3d 338 (6th Cir. 2002). The Court then agreed to hear petitioner can show cause for the default and prejudice the case en banc, and in 2003, vacated its prior opinion and because of it, or a fundamental miscarriage of justice. judgment, holding that Abela’s habeas petition was timely. Coleman v. Thompson, 501 U.S. 722, 750 (1991). Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc). The petition was remanded to this panel for consideration of the For the doctrine of procedural default to apply, there must procedural default question and the merits, which we turn to be a state procedural rule applicable to the petitioner’s claim, now. and the petitioner must have failed to comply with that rule. Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir. II. ANALYSIS 1992), cert. denied, 507 U.S. 932 (1993). In addition, the state court must have enforced the state procedural rule to bar A. Jurisdiction and Mootness the petitioner’s claim. Specifically, the last state court from which the petitioner sought review must have invoked the We reaffirm our prior determinations concerning both state procedural rule as a basis for its decision to reject subject matter jurisdiction and mootness. Abela, 309 F.3d at reviewing the petitioner’s federal claims. Coleman, 501 U.S. 343-44. This Court has subject matter jurisdiction over at 729-30. Lastly, the state procedural rule must constitute an Abela’s habeas petition, pursuant to 28 U.S.C. § 2254(a), “adequate and independent” state ground on which the state because Abela was “in custody” at the time he filed the can rely to foreclose review of a federal constitutional claim. petition with the district court on April 26, 1999. Jones v. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). A state Cunningham, 371 U.S. 236, 242 (1963) (holding that procedural rule is “adequate” if it is firmly established and petitioner who was on parole was still “in custody” for habeas regularly followed at the time it is applied. Williams v. Coyle, purposes). Abela’s release from custody and the subsequent 260 F.3d 684, 693 (6th Cir. 2001). A state procedural rule is conclusion of his parole term, after the filing of his habeas an “independent” ground for precluding federal habeas review No. 00-2430 Abela v. Martin 9 10 Abela v. Martin No. 00-2430
if the state courts actually relied on the rule to bar the claim conviction and sentence or in a prior motion under this at issue. As this Court has held, “a state procedural rule is an subchapter, unless the defendant demonstrates independent and adequate state ground only if the state court rendering judgment in the case clearly and expressly stated (a) good cause for failure to raise such grounds on appeal that its judgment rested on a procedural bar.” Simpson v. or in the prior motion, and Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). (b) actual prejudice from the alleged irregularities that Whether a petitioner’s federal habeas claim is barred support the claim for relief. . . . because the petitioner procedurally defaulted on the claim in state court is a question of law we review de novo. Couch v. As noted above, our task is to determine whether the state Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The last state court court “clearly and expressly stated that its judgment rested on from which Abela sought review, the Michigan Supreme a procedural bar.” Sparkman, 94 F.3d at 202. Here, the Court, denied relief in a standard order stating that: Michigan Supreme Court only referenced M.C.R. 6.508(D), “Defendant has failed to meet the burden of establishing generally, as the basis for denying Abela leave to appeal the entitlement to relief under M.C.R. 6.508(D).” People v. judgment of the Michigan Court of Appeals. As seen just Abela, 457 Mich. 880, 586 N.W.2d 923 (Mich. 1998). above, M.C.R. 6.508(D) states that “[t]he defendant has the Respondent urges us to construe that order – and the citation burden of establishing entitlement to the relief requested.” to M.C.R. 6.508(D) – as an invocation of the procedural Although 6.508(D)(1), (2), and (3) list specific procedural default provision set forth in M.C.R. 6.508(D)(3). M.C.R. grounds for denying a defendant relief from judgment, these 6.508(D) broadly pertains to motions for relief from procedural grounds are not the exclusive grounds for which judgment, and states in relevant part: a court may deny relief pursuant to M.C.R. 6.508(D). A court may deny relief from judgment under 6.508(D) for the non- (D) Entitlement to Relief. The defendant has the burden procedural reason that the defendant simply failed to meet his of establishing entitlement to the relief requested. The burden of “establishing entitlement to the relief requested.” court may not grant relief to the defendant if the motion As such the Michigan Supreme Court’s citation to M.C.R. 6.508(D) in its order denying Abela leave to appeal does not (1) seeks relief from a judgment of conviction and demonstrate that that court denied him leave to appeal on the sentence that still is subject to challenge on appeal basis of a procedural default, much less on the procedural pursuant to subchapter 7.200 or subchapter 7.300; ground described in M.C.R. 6.508(D)(3), which Respondent urges on this Court. (2) alleges grounds for relief which were decided against the defendant in a prior appeal or proceeding under this We note that in Simpson v. Jones, 238 F.3d 399 (6th Cir. subchapter, unless the defendant establishes that a 2000), the Sixth Circuit held that a statement by the Michigan retroactive change in the law has undermined the prior Supreme Court that a defendant “failed to ‘meet the burden of decision; establishing entitlement to relief under M.C.R. 6.508(D)’” constituted invocation of “an independent and adequate state (3) alleges grounds for relief, other than jurisdictional procedural rule” sufficient to prevent federal habeas review. defects, which could have been raised on appeal from the Simpson, 238 F.3d at 407-08. In that case, the petitioner filed two motions for collateral review in the state court following No. 00-2430 Abela v. Martin 11 12 Abela v. Martin No. 00-2430
his direct appeal. The trial court granted partial relief on the supreme court never invoked a procedural bar here, but rather first motion and the petitioner never appealed the adverse repeatedly ruled on the merits. The procedural circumstances portion of that ruling. The state trial judge explicitly denied in this case are, therefore, materially different from those in the second motion on procedural grounds, noting that Simpson and Burroughs, where the lower state courts actually Simpson raised no issues that had not been previously invoked a procedural bar, making it clearer that the Michigan addressed by the trial court and the Michigan Court of Supreme Court was also invoking such a bar when it referred Appeals. Id. at 403. In addition, the court briefly addressed to M.C.R. 6.508(D). But given that all of the lower state and rejected Simpson’s arguments on the merits. Simpson courts adjudicated Abela’s case on the merits, it is not at all then filed an application for leave to appeal to the Michigan clear that the Michigan Supreme Court’s summary order Court of Appeals, raising the same claims he raised in the relies on a procedural bar, as opposed to the non-procedural second motion for collateral review before the trial court. He reason that Abela simply failed to meet his burden of also contested the trial court’s procedural default “establishing entitlement to the relief requested.” Indeed, determination. The Court of Appeals denied that application given the line of prior merits determinations in Abela’s case, on the basis of M.C.R. 6.508(D). Simpson then applied for it is just as reasonable to presume that the Michigan Supreme leave to appeal to the Michigan Supreme Court, based on the Court’s reference to M.C.R. 6.508(D) signaled its agreement same issues he had raised in the Court of Appeals. This with the lower courts’ merits determinations as it is to application was denied on the basis of M.C.R. 6.508(D). presume that the reference signaled, for the first time in this case, the invocation of a procedural bar. Similar procedural facts existed in Burroughs v. Makowski, 282 F.3d 410 (6th Cir. 2002), where the state trial court In short, the procedural facts of Simpson and Burroughs are denied post-conviction relief both on the merits and on the distinguishable from our case. The facts in Simpson and ground of procedural default, and subsequently, both the Burroughs inspired greater certainty that the Michigan Michigan Court of Appeals and the Michigan Supreme Court Supreme Court actually relied on a procedural bar in denied Burroughs’s application for leave to appeal, stating rendering its judgment. No such clarifying indicators are that he failed to establish “entitlement for relief under M.C.R. present here. Moreover, Simpson and Burroughs do not 6.508(D).” Burroughs, 282 F.3d at 412. purport to eviscerate our Circuit’s rule that a state procedural rule is an “independent and adequate” state ground only if the But the Simpson and Burroughs rationale is inapplicable state court rendering judgment in the case “clearly and here. In our case, the last reasoned state court judgment expressly stated that its judgment rested on a procedural bar.” before the Michigan Supreme Court’s order – which was the Sparkman, 94 F.3d at 202. Simpson and Burroughs did not Michigan Court of Appeals’ decision denying leave to appeal hold that we should divine procedural default from any and – was a merits determination. The Court of Appeals stated all references to M.C.R. 6.508(D) where such default may that the motion was “DENIED for lack of merit in the actually have occurred, but where the procedural history grounds presented.” People v. Abela, No. 200930 raises genuine questions as to the state court’s actual reliance (Mich.Ct.App. July, 22, 1997). Similarly, the trial court had on a procedural bar. To suggest that those cases did so hold previously denied the motion for post-conviction relief “for is to accept that they invert the inquiry into whether federal lack of merit on the grounds presented.” People v. Abela, No. review of the habeas claims is permitted. That is, pursuant to 90-101083 (Oakland County Cit. Ct. Oct. 22, 1996). In short, Maupin v. Smith, 785 F.2d 135 (1986), whether the petitioner unlike in Simpson and Burroughs, the state courts below the actually failed to comply with a procedural rule is only the No. 00-2430 Abela v. Martin 13 14 Abela v. Martin No. 00-2430
predicate, not the ultimate, question before us. The ultimate court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). In Williams legal questions are whether the court relied on and expressly v. Taylor, 529 U.S. 362 (2000), the Supreme Court invoked that procedural bar and whether it is an “independent determined that a state court’s decision is contrary to clearly and adequate” ground for precluding review. See Williams established federal law when it fails to consider a rule of law v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001). If a state court that is embedded in the Supreme Court’s jurisprudence at the is slurring its words, our job is not to guess what it might be time the state conviction became final. Williams, 529 U.S. at saying, but rather to demand that it enunciate more clearly. 380. In defining “clearly established law,” the Supreme Court Here, because of numerous factors – the Michigan Supreme held that “rules of law are sufficiently clear for habeas Court’s reference only to M.C.R. 6.508(D), the absence of a purposes even when they are expressed in terms of a clear and express invocation of a procedural bar, and the generalized standard rather than as a bright-line rule.” Id. at plausibility, based on the prior state courts’ merits rulings, 382. The Williams court further held that a state court that the Michigan Supreme Court, too, grounded its decision unreasonably applies clearly established Supreme Court in a non-procedural reason based on Abela’s failure precedent when it correctly identifies the governing legal to“establish[] entitlement to relief” – we cannot find that principle in the case, but unreasonably applies that principle M.C.R. 6.503(D)(3), the state procedural rule urged by to the facts of the defendant’s case. Id. at 413. Respondent, was actually relied on by the Michigan Supreme Court in this case. For the same reasons, we cannot find that D. Abela’s Interrogations by Police and the Trial Court’s M.C.R. 6.503(D) constitutes an adequate and independent Admission of the Statements basis for the state supreme court’s decision here. 1. Whether Abela’s Statements Were Elicited in Accordingly, we hold that the claims raised by Abela in his Violation of His Fifth Amendment Right to Counsel habeas petition were not procedurally defaulted and we turn now to the merits of the petition. Abela’s first claim concerning his statements is that they should have been suppressed because they were elicited in C. Standard of Review violation of his Fifth Amendment right to counsel.
We review de novo the decision of the district court to deny The Fifth Amendment to the U.S. Constitution guarantees habeas relief. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. that “no person . . . shall be compelled in any criminal case to 2000). However, federal review of the state court’s decision be a witness against himself.” Although the Fifth is governed by the Antiterrorism and Effective Death Penalty Amendment does not guarantee a right to counsel, in Miranda Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214 v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that (1996). Pursuant to AEDPA, habeas relief may not be in certain pretrial stages – namely, custodial interrogation – granted with respect to any claim adjudicated on the merits in the privilege against self–incrimination includes an implied the state court unless the adjudication: “(1) resulted in a right to counsel. This right is triggered when a suspect is decision that was contrary to, or involved an unreasonable interrogated while “in custody” or “otherwise deprived of his application of, clearly established Federal law, as determined freedom in any significant way.” Miranda, 384 U.S. at 444; by the Supreme Court of the United States; or (2) resulted in California v. Beheler, 463 U.S. 1121, 1126 (1983) (holding a decision that was based on an unreasonable determination that suspect’s voluntary appearance and departure at police of the facts in light of the evidence presented in the State station for questioning was not custodial interrogation). The No. 00-2430 Abela v. Martin 15 16 Abela v. Martin No. 00-2430
Supreme Court has broadly defined “interrogation” as any present during questioning, and he waived those rights. police questioning of a suspect in custody “reasonably likely Davis, 512 U.S. at 454. However, approximately one-and-a- to elicit an incriminating response.” Rhode Island v. Innis, half hours into the interview, the defendant stated, “Maybe I 446 U.S. 291, 301 n.7, 302, n.8 (1980). should talk to a lawyer. Id. at 455. Investigators immediately inquired whether the defendant was “asking for a lawyer,” or In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the whether he was “just making a comment about a lawyer,” and Supreme Court established a bright- line rule that once a the defendant responded: “No, I’m not asking for a lawyer . . . suspect is in custody and invokes the right to counsel, law No, I don’t want a lawyer.” Id. (internal quotation marks enforcement may not further interrogate him until counsel has omitted). On appeal, the defendant argued that he had been made available, or unless the suspect initiates further invoked his right to counsel and that, therefore, police conversations or exchanges with the police. To trigger the questioning should have ceased. But the Supreme Court Edwards rule, the suspect’s invocation of the right to counsel concluded that the defendant’s statement – “Maybe I should must be clear and unambiguous. Davis v. United States, 512 talk to a lawyer” – was ambiguous, and not sufficiently clear U.S. 452, 459 (1994). “[I]f a suspect makes a reference to an such that a reasonable police officer in the circumstances attorney that is ambiguous or equivocal in that a reasonable would have understood the statement to be a request for an officer in light of the circumstances would have understood attorney. Id. at 462; see also Ledbetter v. Edwards, 35 F.3d only that the suspect might be invoking the right to counsel,” 1062, 1070 (6th Cir. 1994) (holding that the defendant’s then cessation of questioning is not required. Id. statement that “it would be nice” to have an attorney was not a clear and unambiguous request for counsel). Furthermore, Here, the parties do not dispute that Abela was being the investigators’ questions had helped clarify that Davis was subject to custodial interrogation at the hospital when he not, in fact, requesting an attorney. Id. at 461. (“Clarifying expressed a desire to speak to his attorney, William Evans, questions help protect the rights of the suspect by ensuring and then showed Sergeant McCabe Evans’s business card. that he gets an attorney if he wants one, and will minimize the Although, at that point, Abela had not yet been read his chance of a confession being suppressed due to subsequent Miranda warnings, the Fifth Amendment’s implied right to judicial second-guessing as to the meaning of the suspect’s counsel was triggered because Abela was being subjected to statement regarding counsel.”). custodial interrogation by Sergeant McCabe. Accordingly, this case differs from those in which a request for counsel Respondent contends that Abela’s case is identical to preceeding Miranda warnings is deemed ineffective. See, Davis, because, when Sergeant McCabe began questioning e.g., Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.), cert. Abela, he responded by stating, “maybe I should talk to an denied, 530 U.S. 1283 (2000) (request for a lawyer when attorney by the name of William Evans.” Respondent argues suspect was not in custody and was told that he was free to that Abela’s use of the word “maybe” is dispositive. We leave did not render subsequent admissions inadmissible). disagree, because in this case, unlike in Davis, the circumstances surrounding the statement were such that “a But the parties do dispute whether or not Abela’s request reasonable officer would have understood” that Abela was for counsel was clear and unambiguous such that the Edwards clearly and unequivocally invoking the right to counsel. protections were triggered and the police were compelled to Abela did not merely say, “Maybe I should talk to an cease questioning immediately. In Davis, the defendant was attorney,” as did the defendant in Davis. Rather, Abela informed of his right to remain silent and to have an attorney named the specific individual with whom he wanted to speak No. 00-2430 Abela v. Martin 17 18 Abela v. Martin No. 00-2430
and then showed Sergeant McCabe the attorney’s business Court precedent. Minnick v. Mississippi, 498 U.S. 146, 153- card. McCabe said he would call Abela’s attorney for him 54 (1990). Furthermore, because Abela’s statements were and left the room presumably to do so. Although our inquiry self-incriminating and among the most significant evidence is an objective one, id. at 459, McCabe’s actions confirm that marshaled against him by the state, we do not find their a reasonable officer would understand Abela’s statement to be admission into evidence harmless. a clear request for counsel. Finally, our decision is not altered by the fact that, after The events surrounding Abela’s statement sharply contrast requesting counsel, Abela was read his Miranda rights, signed with the facts in Davis, where the suspect followed his a waiver of them, and proceeded to make a statement at the purported request for counsel with a statement indicating that hospital and at the police station (where, although not re-read he was not asking for counsel. In our case, the events his Miranda rights, he was asked whether he “remembered” surrounding Abela’s request corroborate the unequivocal them). As just discussed, when a suspect invokes his Fifth nature of that request. Accordingly, we reject Respondent’s Amendment right to counsel, police questioning must cease contention that the word “maybe” be viewed in isolation, and until counsel is present. A suspect may waive his Fifth as dispositive of the question before us. Moreover, as we Amendment right to counsel and the Edwards protections have determined in other cases, language that might be less after counsel has been requested, but only if the suspect than clear, when viewed in isolation, can become clear and himself has initiated the conversation or discussions with the unambiguous when the immediately surrounding authorities. Minnick, 498 U.S. at 155-56. The evidence here circumstances render them so. See Kyger v. Carlton, 146 shows that Abela did not initiate conversation with the police. F.3d 374, 376 (6th Cir. 1998) (finding an unequivocal request Rather, he gave a statement only after Sergeant McCabe for counsel where the defendant stated that “I would just as returned to the room, read him his Miranda rights, and soon have an attorney,” in response to an officer’s asking resumed questioning. In Arizona v. Roberson, 486 U.S. 675 him: “Would you answer some of our questions, without an (1988), the Supreme Court explained that the bright-line, attorney present?”). We note that a court’s use of surrounding prophylactic Edwards rule protects against the inherently circumstances to evaluate the clarity of a suspect’s request for compelling pressures of custodial interrogation by creating a counsel neither is precluded by nor alters the Supreme Court’s presumption that any subsequent waiver of the right to decision declining to adopt a rule requiring officers to ask counsel at the authorities’ behest was coercive and not purely clarifying questions in these circumstances. Davis, 512 U.S. voluntary. Id. at 685-86. Moreover, the Supreme Court at 461-62. expressly rejected the contention that the fresh issuance of Miranda warnings, after the suspect requested counsel, would After Abela requested counsel, the police were required to overcome the pressures created by the custodial nature of the cease questioning him until he had a lawyer present. The situation. Id. at 686; see also United States v. Hall, 905 F.2d police’s failure to cease questioning Abela – that is, both 959, 961, 964-65, (6th Cir. 1990), cert. denied, 501 U.S. (1) Sergeant McCabe’s returning to Abela, reading him his 1233 (1991) (holding that once an accused expresses a desire Miranda rights, and proceeding to interrogate him at the to deal with police only through counsel, a presumption is hospital, and (2) the police questioning that continued in the created that any subsequent waiver of the right to counsel at morning, at the police station, after Abela was released from the authorities’ behest is coercive and not purely voluntary; the hospital – violated Abela’s right to counsel, the contours invoking Roberson in rejecting the proposition that “a fresh of which are clearly established by federal law and Supreme set of Miranda warnings would ‘reassure’ a suspect who had No. 00-2430 Abela v. Martin 19 20 Abela v. Martin No. 00-2430
been denied counsel” that “his rights would remain When Abela arrived at the hospital, he was injured; untrammeled.”). specifically, his nose was broken. In addition, Abela contends that he drank alcohol in large quantities the night Accordingly, because we find that Abela’s Fifth before. However, there is no evidence in the record that he Amendment right to counsel was violated and the state was still drunk during his interrogations or that his mental courts’ orders rejecting this claim are contrary to clearly faculties were in any other respect impaired during established federal law, as determined by the U.S. Supreme questioning as a result of alcohol or medication. Still, the Court, we grant Abela’s request for habeas relief on this record makes clear that Abela was physically uncomfortable ground. – indeed, his taped interview at the police station had to be stopped briefly because Abela was vomiting from the effects 2. Whether Abela’s Statements Were Unknowing and of the previous night’s alcohol. Involuntary Due to His Physical and Mental Condition Abela has failed to demonstrate that the state court decisions rejecting this claim were contrary to, or involved an In addition to arguing that his statements to the police were unreasonable application of, clearly established federal law, inadmissible because they were elicited in violation of his as determined by the U.S. Supreme Court. As a preliminary Fifth Amendment-based right to counsel, Abela also contends matter, he has presented no evidence of police coercion. that the statements were unknowing and involuntary because More importantly, although we are sympathetic to Abela’s he was intoxicated, in pain, and on pain medication during uncomfortable state in the hospital and police station, Abela police questioning. has not shown that the facts of this case are equivalent to those in Mincey v. Arizona, 437 U.S. 385 (1978), or Beecher The state bears the burden of proving that a defendant v. Alabama, 389 U.S. 35 (1967), where the U.S. Supreme “voluntarily, knowingly, and intelligently waived his right to Court held involuntary the statements of wounded men. In silence and counsel.” United States v. Bentley, 726 F.2d those cases, the petitioners’ injuries were more severe and 1124, 1126 (6th Cir. 1984). This Court uses a “totality of the there was clear evidence of a coercive environment. In circumstances” to determine whether a petitioner’s statements Mincey, the petitioner was seriously wounded after being shot were involuntary. Brown v. Illinois, 422 U.S. 590 (1975). by police during a narcotics raid on his apartment. He arrived The Supreme Court has stated that, in conducting this test, a at the hospital “depressed almost to the point of coma,” court should consider factors such as: (1) police coercion; according to his attending physician. Mincey, 437 U.S. at (2) length of interrogation; (3) location of interrogation; 398. In addition, at the time of his interrogation, his (4) continuity of interrogation; (5) the suspect’s maturity; condition was still serious enough that he was in the intensive (6) the suspect’s education; (7) the suspect’s physical care unit. Id. Mincey complained to the police officer that condition and mental health; and (8) whether the suspect was the pain in his leg was “unbearable” and the record advised of Miranda rights. Withrow v. Williams, 507 U.S. demonstrated that he was “confused and unable to think 680, 693-94 (1993). Coercive police activity is a necessary clearly about either the events of that afternoon or the element for finding that a confession was involuntary. circumstances of his interrogation.” Id. Nevertheless, police Colorado v. Connelly, 479 U.S. 157, 167 (1986). questioning continued. Moreover, while Mincey was being questioned, he was “lying on his back on a hospital bed, encumbered by tubes, needles, and [a] breathing apparatus” No. 00-2430 Abela v. Martin 21 22 Abela v. Martin No. 00-2430
that a nurse testified was reserved for only the “more critical” E. Prosecutorial Misconduct patients. In his next claim for relief, Abela contends that he was Beecher involved an African-American petitioner accused deprived of his right to a fair trial and due process pursuant to of raping and killing a white woman. He had fled into an the Sixth and Fourteenth Amendments because the open field and was chased by police, who fired a bullet into prosecutor, in his closing argument, invented a conversation his right leg. One officer then pressed a loaded gun to the between Abela and Ronald Wright. Specifically, the petitioner’s face while another officer pointed a rifle against prosecutor stated that, prior to Wright’s return to Allen the side of his head. The first officer then asked him whether Howard’s house to retrieve his jacket, Abela told Wright: he had raped and killed a white woman. When the petitioner “Ronnie, better take this [knife] when we go back. Ain’t responded that he had not, the officer called him a liar and nobody going to kick our ass anymore. Let’s go back.” No said, “If you don’t tell the truth I am going to kill you.” testimony offered at trial shows that Abela actually made this Beecher, 389 U.S. at 36. The other officer then fired his rifle statement. next to the petitioner’s ear and the petitioner immediately confessed. Five days later, in a prison hospital, petitioner’s In order to prevail on a claim of prosecutorial misconduct, leg had become so swollen that he required an injection of a habeas petitioner must demonstrate that the statements of morphine every four hours (the leg eventually had to be the prosecutor “so infected the trial with unfairness as to amputated). Less than one hour after one of these injections, make the resulting conviction a denial of due process.” two Alabama investigators visited Beecher in the prison Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In hospital. The medical assistant in charge told the petitioner determining whether a petitioner’s due process rights were to “cooperate” and, in the petitioner’s presence, asked the violated, this Court looks at the totality of the circumstances, investigators to inform him if the petitioner did not “tell them including: what they wanted to know.” Id. In the course of a ninety- minute session, the investigators prepared two detailed the degree to which the remarks complained of have a statements similar to the confession the petitioner had given tendency to mislead the jury and prejudice the accused; five days earlier at gunpoint. As the Supreme Court whether they are isolated or extensive; whether they were explained, “[s]till in a ‘kind of slumber’ from his last deliberately or accidentally placed before the jury, and morphine injection, feverish, and in intense pain, the the strength of the competent proof to establish the guilt petitioner signed the written confessions thus prepared for of the accused. him.” Id. at 37. Kincade v. Sparkman, 175 F.3d 444, 446 (6th Cir. 1999). It Having studied the record on appeal with respect to Abela’s is improper for a prosecutor to argue facts not in evidence. physical and mental state during questioning, we do not find Berger v. United States, 295 U.S. 78 (1935). Here, the his situation sufficiently analogous to the grave medical prosecutor presented a hypothetical conversation between conditions and coercive environments in Mincey and Beecher Abela and Ronald Wright in an attempt to explain why the to warrant relief. We therefore deny this claim. However, as two might have returned to the party after being told to leave. discussed above, we find Abela’s statements improperly At trial, Abela’s theory of self-defense was pitted against the admitted on the ground that they were elicited in violation of prosecution’s theory that Abela and Wright purposefully his Fifth Amendment right to counsel. instigated the violent brawl that resulted in Stanley No. 00-2430 Abela v. Martin 23 24 Abela v. Martin No. 00-2430
Underwood’s death. As such, the prosecutor’s hypothetical On November 5, 1990 – more than fifty days after the trial was crucial to the primary theme of its closing argument and court dismissed the concealed weapon count – the prosecutor the theory of the case supporting the jury’s verdict. filed a motion for reconsideration of the dismissal order, Accordingly, and because evidence of Abela’s guilt was not seeking to reinstate the charge. Mich. Ct. Rule 2.119(F)(1) overwhelming, we must scrutinize the statement carefully. provides that: We would be highly concerned if the prosecutor presented Unless another rule provides a different procedure for the conversation as factual. But, here, the prosecutor prefaced reconsideration of a decision . . . , a motion for rehearing this part of his argument by advising the jury: “and exactly or reconsideration of the decision on a motion must be what was said probably we’ll never know but probably went served and filed not later than 14 days after entry of an something like this . . . .” Because of this preface, we are order disposing of the motion. persuaded that the jury would not have been misled into believing that the prosecutor was quoting from an actual Because the prosecution filed its motion for reconsideration conversation, but that he was rather presenting beliefs he well outside the time limit prescribed by Michigan law, Abela would have the jury infer from the evidence presented at trial. contends that his counsel’s failure to object to the untimely Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000). In motion constituted deficient performance. addition, when charging the jury, the trial judge reminded jurors that they “can only consider the evidence that has been However, M.C.R. 2.119(F)(2) states that “No response to properly admitted in the case” and that “[e]vidence includes the motion [for reconsideration] may be filed. . . .” In other only the sworn testimony of the witnesses” and any admitted words, the Michigan Court Rules did not permit Abela’s trial exhibits, but that “[t]he lawyers’ statements and arguments counsel to file an opposition to the state’s motion for are not evidence.” reconsideration. Accordingly, we cannot say that Abela’s trial counsel was constitutionally deficient for failing to Taken together, these factors persuade us that the oppose the state’s motion for reconsideration. It was prosecutor’s statement, when viewed in light of the entire incumbent on the trial court to reject the motion as untimely, trial, did not deprive Abela of his due process rights. if it saw fit to do so.
F. Ineffective Assistance of Trial Counsel G. Ineffective Assistance of Appellate Counsel
Abela’s next claim is that his trial counsel was ineffective Lastly, Abela contends that his appellate counsel was for failing to object to the untimeliness of the prosecution’s ineffective for failing to raise on direct appeal in the state motion for reconsideration, which sought to reinstate the court the full set of claims presented in his habeas petition – concealed weapon charge, previously dismissed by the trial that is, the claims we have discussed to this point. Abela judge. To establish an ineffective assistance of counsel claim, points to the alleged ineffective assistance of appellate a habeas petitioner must show that: (1) counsel’s performance counsel as “cause” for any procedural default of his claims in was deficient; and (2) counsel’s deficient performance state court. See Murray v. Carrier, 477 U.S. 478, 488 (1986) prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (holding that if a petitioner can show that he received (1984). ineffective assistance of appellate counsel, this may excuse his procedural default of claims in the state court). No. 00-2430 Abela v. Martin 25 26 Abela v. Martin No. 00-2430
We need not determine whether the alleged ineffective ______________________________________________ assistance of appellate counsel would constitute “cause” for any procedural default because, as we determined in Part II, CONCURRING IN PART, DISSENTING IN PART B. above, Abela’s habeas claims were not procedurally ______________________________________________ defaulted in the state courts. SILER, Circuit Judge, concurring in part and dissenting in III. CONCLUSION part. I concur in all of the conclusions by the majority, except those conclusions that the petitioner, Kevin Mark Abela, was On the basis of our determinations above – (1) that we are denied his constitutional right to counsel under the Fifth not precluded from considering Abela’s claims on the ground Amendment, and that a writ of habeas corpus should issue of procedural default and (2) that statements made by Abela unless the state elects to retry Abela for the same charges. and admitted at trial were unconstitutionally elicited by police The constitutional violation which the majority finds is the after he invoked his right to counsel – we REVERSE the introduction at trial of a statement allegedly made in violation district court’s judgment and REMAND to the district court of Miranda v. Arizona, 384 U.S. 436 (1966). I would find with instructions to grant the writ of habeas corpus, unless the that there was no constitutional violation. Therefore, I would state elects to retry Ablea within ninety days of the date of affirm the district court in denying the writ. this opinion’s entry. Abela’s statement to the officers before he was advised of his Miranda rights was “maybe I should talk to an attorney by the name of William Evans.” Sgt. Michael McCabe offered to call Evans or another attorney, but before Sgt. McCabe attempted to call Evans or anyone else, he proceeded to advise Abela of his Miranda rights. It was at this point when Abela said that he would tell them everything, and did not ask for the right to consult with Evans or any other attorney. As the district court found, Abela’s statements do not constitute an unequivocal request for counsel as required under Davis v. United States, 512 U.S. 452, 458-59 (1994). In Davis, the accused made a similar request that “maybe I should talk to a lawyer.” The Court held that was not an unambiguous request for counsel. I would not hold that a specific naming of an attorney in this case distinguishes the facts sufficient to find a Miranda violation. See Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir. 1994) (holding that the statement that “It would be nice” to have an attorney was not a clear and unambiguous request for counsel). Although the majority opinion relates that Abela handed Sgt. McCabe a business card for Evans and that McCabe left the room with the card to phone the attorney, the district court did not find those facts. No. 00-2430 Abela v. Martin 27
Instead, Abela testified that the card was in his wallet, which was in another room. He said that McCabe left the room after he told him about the card, but McCabe did not say anything about the card nor the attorney after that. Sgt. McCabe testified that Abela pulled out a business card from his wallet and showed it to McCabe, but McCabe did not say anything about leaving the room with the card to phone the attorney. Therefore, I would find that the facts determined by the district court below were not clearly erroneous, and I would uphold the decision by the district court that no Miranda violation occurred. In sum, I would affirm the decision of the district court in denying the writ of habeas corpus.