NOT RECOMMENDED FOR PUBLICATION File Name: 22a0045n.06
Case No. 21-1589
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 25, 2022 ) DEBORAH S. HUNT, Clerk KENNETH DEWAYNE HILL, ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF THOMAS WINN, Warden, ) MICHIGAN Respondent-Appellee. ) )
Before: SUTTON, Chief Judge; GUY and DONALD, Circuit Judges.
SUTTON, Chief Judge. Kenneth Hill filed a federal habeas petition, in which he
challenged four Michigan convictions. He argues that the use of his confession at trial violated
his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The district court denied his petition,
and we affirm.
In 2014, Hill drove three other men to a convenience store in Clinton Township, Michigan.
People v. Hill, No. 2014002440, 2015 WL 4988671, at *1 (Mich. Cir. Ct. Feb. 25, 2015). Hill
waited outside. The others went into the store, two carrying firearms. After entering, one of the
men shot the store owner, and another emptied the cash register. They fled in Hill’s car. A witness
reported a suspected robbery. The store owner died before any responding officers arrived.
The police identified Hill and his companions as suspects and arrested them. Officers
advised Hill of his Miranda rights, and he signed a written waiver. As Hill debated whether to Case No. 21-1589, Hill v. Winn
call an attorney, the detectives suggested it would be in Hill’s best interest to cooperate. They told
him that calling a lawyer would force them to end the interview. They suggested they would then
speak to Hill’s companions, who might come clean first. If that happened, one detective told Hill,
they “may not come back and talk to” him. R.10 at 7.
Hill asked for a lawyer, and the police ceased questioning. After 20 minutes, however, he
informed them that he wanted to give a statement. At that point, he told the full story and confessed
to his involvement.
Hill moved to suppress his statements. The trial court denied the motion. The jury
convicted him of first-degree felony murder, Mich. Comp. Laws § 750.316; armed robbery, id.
§ 750.529; conspiracy to commit armed robbery, id. §§ 750.529, 750.157; and possession of a
firearm in the commission of a felony, id. § 750.227b.
Hill appealed, arguing that the police coerced his confession. The Michigan Court of
Appeals affirmed. “[A]fter considering the totality of the circumstances,” it found “no indication”
that Hill did not “exercis[e] his free will.” People v. Hill, No. 329166, 2017 WL 535546, at *5
(Mich. Ct. App. Feb. 9, 2017) (per curiam). “On the contrary,” the court continued, “the fact that
Hill initially invoked his right to counsel and ended the interrogation . . . strongly suggests that
Hill was exercising his own free will and was aware of his rights.” Id. The Michigan Supreme
Court denied leave to appeal. People v. Hill, 900 N.W.2d 644, 644 (Mich. 2017).
Hill sought habeas relief in federal court, raising the Miranda claim. The district court
denied his application. Applying the Antiterrorism and Effective Death Penalty Act of 1996,
AEDPA for short, it concluded that the Michigan Court of Appeals’ decision was neither contrary
to, nor an unreasonable application of, clearly established federal law.
Hill appealed.
2 Case No. 21-1589, Hill v. Winn
AEDPA sets the stage. It limits the federal courts’ authority to invalidate state-court
convictions. A federal court may not grant relief unless the state court decision was contrary to or
an unreasonable application of U.S. Supreme Court precedent or relied on an unreasonable factual
conclusion. 28 U.S.C. § 2254(d). A legal error must be “so obviously wrong” that it “lies beyond
any possibility for fairminded disagreement.” Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (per
curiam). AEDPA also requires deference to state-court factfinding absent contrary clear and
convincing evidence. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Under the Fifth Amendment to the Federal Constitution, made applicable to the States by
the Fourteenth Amendment, officers must advise arrestees of their rights to remain silent and to
retain a lawyer. Miranda, 384 U.S. at 444. Otherwise, the government may not introduce any
later statements at trial. Id. While a defendant may waive his Miranda rights, he must do so
knowingly and voluntarily. Id. at 475. That requires the defendant to grasp the nature of his rights,
understand the consequences of forgoing them, and make a “free and deliberate choice” to waive
them. Moran v. Burbine, 475 U.S. 412, 421 (1986). In determining whether a defendant
voluntarily abandoned his Miranda rights, we look to all material factors, including his age,
education level, and other personal characteristics, along with the nature of the interrogation.
Wesson v. Shoop, 17 F.4th 700, 704 (6th Cir. 2021).
The Michigan Court of Appeals reasonably applied these principles. Reviewing a video of
the interrogation, the court observed that Hill was “able to readily communicate with the
detectives” and that police did not “unnecessar[ily] delay” his interrogation. Hill, 2017 WL
535546, at *5. The record, the state appellate court found, did not indicate that Hill was “injured,
intoxicated, drugged, in ill health, or in need of food, sleep, or medical attention” or that his “age,
intelligence, education level, or lack of prior experience with the police” interfered with his free
3 Case No. 21-1589, Hill v. Winn
will. Id. The court added that officers did not entice Hill to confess by promising leniency. To
the contrary, the detectives explained they “were not offering any ‘deals’ or ‘promises.’” Id.
While detectives suggested they would not interview Hill after he called an attorney, the court
noted that the officers “repeatedly echoed” that Hill had a right to retain one. Id. That analysis
comports with U.S. Supreme Court precedent.
Hill’s contentions that his confession was involuntary fail to show that the state court
unreasonably applied federal law. He argues that the officers coerced him to speak by forcing him
to choose between giving a statement and calling a lawyer. At the outset of questioning, after
advising Hill of his rights, one detective informed Hill that “right now” was when the detective
“want[ed] [him] to be truthful.” Id. at *3. “And with you asking for a lawyer,” the detective
continued, “I’m just telling you that we are going to talk to everybody. And this is your only
opportunity to talk to us.” Id. at *4. Hill insists that, by creating this dilemma, the officers
interfered with his ability to make a free and informed decision.
The Michigan Court of Appeals reasonably rejected this claim. It acknowledged that “the
detectives made several statements indicating that Hill would not be permitted to speak with them
after speaking with an attorney.” Id. at *5. Even so, it found his waiver voluntary. It emphasized
that the detectives “repeatedly” advised Hill of his rights and that he “acknowledged that he was
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NOT RECOMMENDED FOR PUBLICATION File Name: 22a0045n.06
Case No. 21-1589
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jan 25, 2022 ) DEBORAH S. HUNT, Clerk KENNETH DEWAYNE HILL, ) Petitioner-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF THOMAS WINN, Warden, ) MICHIGAN Respondent-Appellee. ) )
Before: SUTTON, Chief Judge; GUY and DONALD, Circuit Judges.
SUTTON, Chief Judge. Kenneth Hill filed a federal habeas petition, in which he
challenged four Michigan convictions. He argues that the use of his confession at trial violated
his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The district court denied his petition,
and we affirm.
In 2014, Hill drove three other men to a convenience store in Clinton Township, Michigan.
People v. Hill, No. 2014002440, 2015 WL 4988671, at *1 (Mich. Cir. Ct. Feb. 25, 2015). Hill
waited outside. The others went into the store, two carrying firearms. After entering, one of the
men shot the store owner, and another emptied the cash register. They fled in Hill’s car. A witness
reported a suspected robbery. The store owner died before any responding officers arrived.
The police identified Hill and his companions as suspects and arrested them. Officers
advised Hill of his Miranda rights, and he signed a written waiver. As Hill debated whether to Case No. 21-1589, Hill v. Winn
call an attorney, the detectives suggested it would be in Hill’s best interest to cooperate. They told
him that calling a lawyer would force them to end the interview. They suggested they would then
speak to Hill’s companions, who might come clean first. If that happened, one detective told Hill,
they “may not come back and talk to” him. R.10 at 7.
Hill asked for a lawyer, and the police ceased questioning. After 20 minutes, however, he
informed them that he wanted to give a statement. At that point, he told the full story and confessed
to his involvement.
Hill moved to suppress his statements. The trial court denied the motion. The jury
convicted him of first-degree felony murder, Mich. Comp. Laws § 750.316; armed robbery, id.
§ 750.529; conspiracy to commit armed robbery, id. §§ 750.529, 750.157; and possession of a
firearm in the commission of a felony, id. § 750.227b.
Hill appealed, arguing that the police coerced his confession. The Michigan Court of
Appeals affirmed. “[A]fter considering the totality of the circumstances,” it found “no indication”
that Hill did not “exercis[e] his free will.” People v. Hill, No. 329166, 2017 WL 535546, at *5
(Mich. Ct. App. Feb. 9, 2017) (per curiam). “On the contrary,” the court continued, “the fact that
Hill initially invoked his right to counsel and ended the interrogation . . . strongly suggests that
Hill was exercising his own free will and was aware of his rights.” Id. The Michigan Supreme
Court denied leave to appeal. People v. Hill, 900 N.W.2d 644, 644 (Mich. 2017).
Hill sought habeas relief in federal court, raising the Miranda claim. The district court
denied his application. Applying the Antiterrorism and Effective Death Penalty Act of 1996,
AEDPA for short, it concluded that the Michigan Court of Appeals’ decision was neither contrary
to, nor an unreasonable application of, clearly established federal law.
Hill appealed.
2 Case No. 21-1589, Hill v. Winn
AEDPA sets the stage. It limits the federal courts’ authority to invalidate state-court
convictions. A federal court may not grant relief unless the state court decision was contrary to or
an unreasonable application of U.S. Supreme Court precedent or relied on an unreasonable factual
conclusion. 28 U.S.C. § 2254(d). A legal error must be “so obviously wrong” that it “lies beyond
any possibility for fairminded disagreement.” Shinn v. Kayer, 141 S. Ct. 517, 523 (2020) (per
curiam). AEDPA also requires deference to state-court factfinding absent contrary clear and
convincing evidence. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Under the Fifth Amendment to the Federal Constitution, made applicable to the States by
the Fourteenth Amendment, officers must advise arrestees of their rights to remain silent and to
retain a lawyer. Miranda, 384 U.S. at 444. Otherwise, the government may not introduce any
later statements at trial. Id. While a defendant may waive his Miranda rights, he must do so
knowingly and voluntarily. Id. at 475. That requires the defendant to grasp the nature of his rights,
understand the consequences of forgoing them, and make a “free and deliberate choice” to waive
them. Moran v. Burbine, 475 U.S. 412, 421 (1986). In determining whether a defendant
voluntarily abandoned his Miranda rights, we look to all material factors, including his age,
education level, and other personal characteristics, along with the nature of the interrogation.
Wesson v. Shoop, 17 F.4th 700, 704 (6th Cir. 2021).
The Michigan Court of Appeals reasonably applied these principles. Reviewing a video of
the interrogation, the court observed that Hill was “able to readily communicate with the
detectives” and that police did not “unnecessar[ily] delay” his interrogation. Hill, 2017 WL
535546, at *5. The record, the state appellate court found, did not indicate that Hill was “injured,
intoxicated, drugged, in ill health, or in need of food, sleep, or medical attention” or that his “age,
intelligence, education level, or lack of prior experience with the police” interfered with his free
3 Case No. 21-1589, Hill v. Winn
will. Id. The court added that officers did not entice Hill to confess by promising leniency. To
the contrary, the detectives explained they “were not offering any ‘deals’ or ‘promises.’” Id.
While detectives suggested they would not interview Hill after he called an attorney, the court
noted that the officers “repeatedly echoed” that Hill had a right to retain one. Id. That analysis
comports with U.S. Supreme Court precedent.
Hill’s contentions that his confession was involuntary fail to show that the state court
unreasonably applied federal law. He argues that the officers coerced him to speak by forcing him
to choose between giving a statement and calling a lawyer. At the outset of questioning, after
advising Hill of his rights, one detective informed Hill that “right now” was when the detective
“want[ed] [him] to be truthful.” Id. at *3. “And with you asking for a lawyer,” the detective
continued, “I’m just telling you that we are going to talk to everybody. And this is your only
opportunity to talk to us.” Id. at *4. Hill insists that, by creating this dilemma, the officers
interfered with his ability to make a free and informed decision.
The Michigan Court of Appeals reasonably rejected this claim. It acknowledged that “the
detectives made several statements indicating that Hill would not be permitted to speak with them
after speaking with an attorney.” Id. at *5. Even so, it found his waiver voluntary. It emphasized
that the detectives “repeatedly” advised Hill of his rights and that he “acknowledged that he was
familiar with those rights.” Id. This conclusion does not conflict with Supreme Court precedent,
and indeed Hill has cited no such case.
Hill’s fear that the detectives would interview his companions does not change things.
True, his desire to tell his side of the story may have influenced his decision to cooperate. But
nothing required the detectives to continue questioning him or refrain from speaking to the other
men. The detectives’ warning that they might do something they had legal authority to do does
4 Case No. 21-1589, Hill v. Winn
not transform Hill’s waiver into an involuntary one. Cf. United States v. Salvo, 133 F.3d 943, 954
(6th Cir. 1998) (noting that a threat to obtain a search warrant does not taint consent to search so
long as the threat is not baseless or pretextual). Any implication that Hill’s coconspirators might
confess and preempt his cooperation merely predicted a potential legitimate consequence. Id.
Hill separately claims that the detectives told him that he could not speak to a lawyer if
they interviewed the other suspects first. The record proves otherwise. As the state court found,
the detectives “repeatedly” told Hill he could obtain a lawyer. Hill, 2017 WL 535546, at *5. They
never said that, if he did not call a lawyer at the outset, he never would be able to call one later.
Hill adds that the police coerced his confession through promises of leniency. But the
Michigan Court of Appeals found that the detectives “expressly informed” him that they “were
not offering any ‘deals’ or ‘promises.’” Id. That is true, the record demonstrates. Before Hill
confessed, one detective confirmed, “I haven’t promised you anything, right?” Id. at *4. Hill
agreed. Id. Even a promise of leniency would invalidate Hill’s Miranda waiver only if it were
coercive. United States v. Binford, 818 F.3d 261, 271–73 (6th Cir. 2016). The detectives’
suggestions that it might behoove Hill to cooperate fall short of that bar.
Hill, last of all, claims that the officers coerced his waiver by misrepresenting the nature of
felony-murder liability. But he did not raise this argument in his habeas petition, and accordingly
he has forfeited it on appeal. Babick v. Berghuis, 620 F.3d 571, 580 (6th Cir. 2010).
We affirm.