RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0177P (6th Cir.) File Name: 00a0177p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  CHRISTOPHER MACHACEK,  Petitioner-Appellant,   No. 98-1815 v.  > GERALD HOFBAUER, Warden,  Respondent-Appellee.  1 Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 97-71761—Nancy G. Edmunds, District Judge. Argued: March 15, 2000 Decided and Filed: May 26, 2000 Before: MERRITT, DAUGHTREY, and MAGILL, Circuit Judges.* _________________ COUNSEL ARGUED: Don Ferris, FERRIS & SALTER, Ann Arbor, Michigan, for Appellant. Laura Graves Moody, OFFICE OF THE ATTORNEY GENERAL, HABEAS CORPUS

* The Honorable Frank J. Magill, Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

1 2 Machacek v. Hofbauer No. 98-1815 No. 98-1815 Machacek v. Hofbauer 15

DIVISION, Lansing, Michigan, for Appellee. ON BRIEF: ________________ Don Ferris, FERRIS & SALTER, Ann Arbor, Michigan, for Appellant. Laura Graves Moody, OFFICE OF THE DISSENT ATTORNEY GENERAL, HABEAS CORPUS DIVISION, ________________ Lansing, Michigan, for Appellee. MERRITT, Circuit Judge, dissenting. I disagree with MAGILL, J., delivered the opinion of the court, in which Section V of the Court’s opinion. As the Court’s quotation of DAUGHTREY, J., joined. MERRITT, J. (p. 15), delivered a the transcript sets out, the detective who interrogated separate dissenting opinion. Machacek asked him to sign “directly below . . . a paragraph that is called Waiver of Rights” which says “I have read . . . _________________ my rights, and . . . I waive them . . .” Immediately following this request for Machacek to sign the waiver, the detective OPINION said “we’re not asking you to waive or give up any of your _________________ rights or anything of that nature.” This latter statement was false and in my opinion constitutes a blatant violation of MAGILL, Circuit Judge. Christopher Machacek appeals Miranda. The same detective then told Machacek the same the district court's1 denial of his application for a writ of thing again, a second time: “[Signing the waiver] is not habeas corpus following his conviction for first degree murder waiving anything,” he said. Machacek then signed the in a Michigan state court. At the district court level, waiver. Although I am certainly not anxious to reverse this Machacek argued that the Michigan trial court erred in case, I do not see how we can say anything other than that we admitting an incriminating statement obtained in violation of cannot sanction this classic violation of Miranda. Maybe a his Fourth, Fifth and Sixth Amendment rights. The district detailed harmless error analysis could sustain the state court denied Machacek's petition, finding his Fourth conviction, but I cannot go along with my colleagues’ view Amendment claim barred by Stone v. Powell, 428 U.S. 465 that no constitutional error happened. Machacek only signed (1970), and his other claims to be meritless. For reasons to be the waiver of rights after being twice told he was waiving discussed, we affirm. nothing. In other words, he was falsely told that he could talk I. Background and get it off his chest without running the risk of incriminating himself. I agree with the rest of the Court’s On December 30, 1986, petitioner Christopher Machacek opinion. and Steven Stamper, both sixteen years old at the time, took Mary Ann Hulbert, who was thirteen years old, into the woods near Ann Arbor, Michigan, and shot her several times. Her body was found by two hunters on January 7, 1987. An autopsy performed on January 8, 1987, revealed that Mary Ann had been shot seven times from both the front and back, with the death bullet penetrating her heart and lungs.

1 The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan. 14 Machacek v. Hofbauer No. 98-1815 No. 98-1815 Machacek v. Hofbauer 3

VI. Conclusion After the body of Mary Ann was discovered on January 7, 1987, police went to Machacek's house and requested that For the aforementioned reasons, we affirm the district Diana McKenzie, Machacek's foster mother, bring him to the court's denial of habeas relief to petitioner. station. Ms. McKenzie agreed and escorted Machacek to the station. At the station, Detective Sergeant William McFarlane took Ms. McKenzie aside and told her that Mary Ann had been murdered. Ms. McKenzie then gave the police permission to talk to petitioner. At 7:20 p.m., the formal interview began with Ms. McKenzie present. Because petitioner challenges the knowing and voluntary nature of his waiver of his Fifth and Sixth Amendment rights, we quote excerpts from the audio recordings of his interview at some length.2 Detective Stamper: This is a statement of your Miranda rights. Number One: You have the right to remain silent, which means you don't have to talk to us if you don't want to. Do you understand that one? Machacek: Yes. Detective Stamper: Number Two: Anything you say can and will be used against you in a courtof law. Do you understand that one? Machacek: Yes. Detective Stamper: Number Three: You have the right to talk to a lawyer and have him present with you while you are being questioned. Do you understand that one? Machacek: Yes.

2 We note that some of the audio recordings were made without the knowledge of the questioning officers. 4 Machacek v. Hofbauer No. 98-1815 No. 98-1815 Machacek v. Hofbauer 13

Detective Stamper: Number Four: If you cannot afford to Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare hire a lawyer, one will be appointed to v. Michael C., 442 U.S. 707, 725 (1979)). "Whether a waiver represent you before any questioning, if is knowing and intelligent is determined by the particular you wish. Do you understand that? facts and circumstances of the case, 'including the background, experience, and conduct of the accused.'" See Machacek: Yes. United States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir. 1990) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). After Detective Stamper: Number Five: You can decide at any extensive hearings, the state trial court determined that both time to exercise these rights and not Machacek and his legal guardian made the final decision to answer any question or make any waive his Miranda rights freely and with full understanding. statements. Do you understand that? We agree with the Michigan court. Assuming that Machacek: Yes. Detective Stamper may have somehow mislead Machacek about the consequences of signing the waiver card, police did Detective Stamper: Directly below is a paragraph that is not treat the signing of the card as a waiver of Machacek's called Waiver of Rights. It says, "I have rights. Rather, after Machacek signed the waiver card, read the above statement of my rights Detective Fulcher emphasized that Machacek's signature and I understand each of these rights merely indicated his understanding of his legal rights. After and having these rights in mind, I waive confirming that Machacek understood his rights, Detective them and willingly make a statement." Fulcher specifically asked Machacek whether he wanted to make a statement without an attorney being present. We're not asking you to waive or give up Machacek agreed and admitted his involvement in the brutal any of your rights or anything of that murder of young Mary Ann Hulbert.4 nature. Okay? Based on the "totality of the circumstances" surrounding Machacek: Yes. Machacek's waiver, we find that the Michigan courts' Detective Stamper: Can you read? determination that Machacek knowingly and voluntarily waived his Miranda rights was not an unreasonable Machacek: Yes. application of Supreme Court precedent. The audio recordings of Machacek's interview firmly convince us that Detective Stamper: What I would like for you to do and both Machacek and his foster mother knowingly and don't get offended when I ask that intelligently waived his Fifth and Sixth Amendment rights. because some people can't. What I would like you to do is read those over and make sure they read exactly the way that I read them to you. Make sure you understand them thoroughly. Then if you do, I would ask you to sign it on that 4 line that says, Signature, and your The record shows that Machacek had extensive contacts with the guardian-mother to sign underneath. juvenile justice system and, thus, was not naive about the consequences of waiving his Fifth and Sixth Amendment rights. 12 Machacek v. Hofbauer No. 98-1815 No. 98-1815 Machacek v. Hofbauer 5

"unreasonable application" of Supreme Court precedent. Your signature is not an admission of Thus, we must reject petitioner's request for habeas relief anything. It is not waiving anything. It based on an alleged violation of his right to counsel. merely indicates that you have been read your rights and you do understand each V. Valid Waiver Of Miranda Rights one of them. In his habeas appeal, petitioner also argues that the Mrs. McKenzie: Should . . . We're going to have to get a Michigan state courts erroneously found that Detective lawyer then and should his mother be Stamper's misleading statements about the significance of notified? signing a waiver card did not render his waiver of Fifth Amendment rights invalid. Although we agree that Detective Detective Fulcher: Are you his legal guardian? Stamper's statements were less than appropriate, we find the Michigan court's decision to be an "objectively reasonable" Ms. McKenzie: Right now, yes. application of clearly established Supreme Court precedent, and, thus, affirm the district court's denial of petitioner's Detective Fulcher: Are you indicating that you don't want request for habeas relief. him to talk to us without an attorney being present? In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that the privilege against self-incrimination Ms. McKenzie: Well, what do you suggest? I've never protects individuals from "informal compulsion exerted by been through this. law-enforcement officers during in-custody questioning." Id. at 461. Unless a suspect knowingly, voluntarily, and Detective Fulcher: It's not up to me. It is one-hundred intelligently waives these rights, a court will exclude percent yours and Chris' decision. statements made as a result of an involuntary waiver. See Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990). In ... determining whether a suspect has validly waived his rights, Ms. McKenzie: Well, does he have to sign that before a trial court should consider the following factors: our lawyer is here? First, the relinquishment of the right must have been Detective Fulcher: He doesn't have to sign anything. We voluntary in the sense that it was the product of a free are asking him to sign it, if he and deliberate choice rather than intimidation, coercion understands his rights. or deception. Second, the waiver must have been made with full awareness both of the nature of the right being Questioning stopped at this point and Ms. McKenzie left abandoned and the consequences of the decision to the room to talk to her ex-husband. Ms. McKenzie returned abandon it. Only if the "totality of the circumstances to the room approximately five minutes later and the surrounding the investigation" reveal both an uncoerced following conversation took place. choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have Detective Fulcher: Chris, we have talked about your rights. been waived. You have signed the form and you are indicating that you do understand your 6 Machacek v. Hofbauer No. 98-1815 No. 98-1815 Machacek v. Hofbauer 11

rights and you would like to talk to us 1522. Thus, even if we believe that a state court incorrectly about the death of Mary. applied federal law, we must refuse to issue the writ of habeas corpus if we find that the state court's decision was a Machacek: Yes. reasonable one. Given the facts of this case, we have little trouble deciding that the Michigan court's decision was Detective Fulcher: And Mrs. McKenzie, do you understand "objectively reasonable" in light of clearly established federal his rights and you are allowing him to law. talk to us about that now? Machacek argues that Ms. McKenzie, his legal guardian, Mrs. McKenzie: Um-humm. invoked his right to counsel by making the following remark, "Should . . . We're going to have to get a lawyer then and Detective Fulcher: We haven't threatened anyone or made should his mother be notified?" In light of the Supreme any promises or anything of that nature? Court's decision in Davis v. United States, 512 U.S. 452 (1994), we reject petitioner's argument. In Davis, the Court Ms. McKenzie: No, but I just want Chris to tell the held that a suspect "must unambiguously request counsel." honest-to-god truth of what he knows Id. at 459. Thus, "if a suspect makes a reference to an and you can take a lie detector's test and attorney that is ambiguous or equivocal in that a reasonable that would maybe clear it. officer in light of the circumstances would have understood Detective Fulcher: Do you feel that we have threatened or only that the suspect might be invoking the right to counsel, intimidated you in any way to get you to our precedents do not require the cessation of questioning." talk to us, Chris? Id. The Court ultimately held that the suspect's statement, "Maybe I should talk to a lawyer," was equivocal, and, thus, Machacek: No. police were allowed to continue questioning the suspect. Id. at 462. At this point, Ms. McKenzie asked petitioner whether he told anyone that he had access to her husband's Chevy Blazer. In light of Davis, the Michigan court's finding that Ms. The officers discussed the issue with Ms. McKenzie before McKenzie did not invoke the right to counsel was continuing with the following conversation. "objectively reasonable." Her equivocal statement began and ended as if she were asking the police a question. After Ms. Detective Fulcher: Chris, I would like to refresh you McKenzie ambiguously suggested that she might want memory about the rights. The blue form counsel present during questioning, police immediately that you signed – I will lay it in front of stopped questioning Machacek and asked Ms. McKenzie to you. It indicates all those rights. Do clarify whether she was invoking Machacek's right to counsel. you recall reading me those rights to you Ms. McKenzie's response indicated that she was very a short time ago or Detective Stamper, I uncertain about whether she wanted counsel present. Before should say, reading the rights to you? continuing the questioning, police allowed Ms. McKenzie to leave the room and discuss the matter with her ex-husband. Machacek: Yes. Upon her return, she unequivocally consented to proceeding without having a lawyer present. Given the facts of this case, Detective Fulcher: Do you still understand your rights? we cannot say the state trial court's determination was an 10 Machacek v. Hofbauer No. 98-1815 No. 98-1815 Machacek v. Hofbauer 7

(d) An application for a writ of habeas corpus on Machacek: Yes. behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any Detective Fulcher: Having those rights in mind, do you still claim that was adjudicated on the merits in State court want to make a statement without your unless the adjudication of the claim– attorney being present now? (1) resulted in a decision that was contrary to, or Machacek: Yes. involved an unreasonable application of, clearly established Federal law, as determined by the Supreme After agreeing to make a statement to the officers, Court of the United States . . . . Machacek described the murder of Mary Ann, implicating Steven Stamper as the one who pulled the trigger. Machacek 28 U.S.C. § 2254(d). After we heard oral arguments in this told police how the two boys took Mary Ann to the woods, case, the Supreme Court resolved some confusion among the blindfolded her, placed her up against a tree, and shot her circuits by holding that section 2254(d)'s "contrary to" and numerous times as she ran trying to escape from her "unreasonable application" clauses have independent abductors. After shooting and killing the young girl, meanings. See Williams v. Taylor, 120 S.Ct. 1495, 1519 Machacek helped Stamper drag Mary Ann's body through the (2000). With respect to the first of the two statutory clauses, woods and dump her in some bushes. the Court held that a state court decision can be "contrary to" clearly established federal law if the state court arrives at a II. Procedural History conclusion opposite to that reached by the Supreme Court on a question of law. See id. A state court decision can also be In determining whether to exclude Machacek's "contrary to" Supreme Court precedent if the state court incriminating statements, the Michigan trial court held a confronts facts that are materially indistinguishable from a Walker hearing3 and listened to the tape recordings of relevant Supreme Court precedent and arrives at an opposite Machacek's interview. The trial court concluded: result. See id. Because none of Machacek's claims implicate the "contrary to" clause of this provision, we will evaluate his In this case, Defendant Machacek was informed of his claims under the "unreasonable application" prong. Miranda rights in the presence of his foster mother, Diana McKenzie. It is clear that he and she understood In Williams, the Court held that an "unreasonable those rights. She was given the opportunity to discuss application" of clearly established federal law established by these rights and whether or not an attorney should be Supreme Court precedent occurs if "the state court identifies called with her ex-husband. During this time Defendant the correct governing legal rule from [the Supreme Court's] Machacek was not being questioned and could reflect on cases but unreasonably applies it to the facts of the particular whether he wanted to proceed. The record shows that the state prisoner's case." Id. at 1520. Thus, "a federal habeas final decision was made freely with full understanding. court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively reasonable." Id. Although the Court failed to specifically define "objectively reasonable," it observed that "an unreasonable application of federal law is 3 A Walker hearing is a hearing held in the Michigan state courts, different than an incorrect application of federal law." Id. at outside the presence of the jury, to determine whether a confession was voluntarily made. See People v. Walker, 374 Mich. 331 (1965). 8 Machacek v. Hofbauer No. 98-1815 No. 98-1815 Machacek v. Hofbauer 9

On appeal, the Michigan Court of Appeals affirmed the trial III. Stone v. Powell Bars Petitioner's Fourth Amendment court's ruling, finding that: Claim Our review of the record, which includes audio tapes Petitioner's Fourth Amendment claim is not reviewable. A made without the knowledge of the officers questioning habeas petitioner may not seek habeas relief on a claim of defendant, leaves us convinced that defendant's statement illegal arrest if he had a full and fair opportunity to raise the was voluntarily made, that his rights were scrupulously claim in state court and presentation of the claim was not honored, and that both he and his foster mother thwarted by any failure of the state's corrective processes. See knowingly and intelligently waived his right to remain Stone v. Powell, 428 U.S. 465, 494-95 (1976). In Riley silent and to have an attorney present during the v.Gray, 674 F.2d 522 (6th Cir. 1982), we set forth two distinct questioning. We therefore find the remainder of inquiries a court must perform when determining whether a defendant's claims regarding the admissibility of his petitioner may raise a claim of illegal arrest in a habeas statement to be without merit. action. First, the "court must determine whether the state procedural mechanism, in the abstract, presents the On September 14, 1988, a jury convicted Machacek of first opportunity to raise a fourth amendment claim. Second, the degree murder. He was sentenced to a mandatory life court must determine whether presentation of the claim was sentence without possibility of parole. On April 4, 1989, in fact frustrated because of a failure of that mechanism." Id. Machacek filed a claim of appeal with the Michigan Court of at 526. Because Machacek concedes that Michigan has a Appeals challenging the trial court's refusal to suppress the procedural mechanism which presents an adequate incriminating statement he made to police on January 7, 1987. opportunity to raise his Fourth Amendment claims, he must Machacek also appealed the trial court's finding that officers establish that a failure of that procedural mechanism had probable cause to believe that he was guilty of murder. somehow prevented him from litigating his claims. On February 17, 1993, the Michigan Court of Appeals affirmed Machacek's conviction. The Michigan Supreme In this case, the record reflects that petitioner was able to Court denied his application for leave to appeal the appellate present his Fourth Amendment claims to the Michigan courts court's decision. and that these claims were carefully considered and rejected at the trial level and on appeal. Machacek may be On April 21, 1997, Machacek filed for a writ of habeas disappointed with his inability to persuade the Michigan corpus with the United States District Court for the Eastern courts that his statement was the product of an illegal arrest, District of Michigan, arguing that the Michigan court erred in but the record clearly shows that he received all the process he allowing an incriminating statement obtained in violation of was due. Accordingly, any claims concerning the validity of his Fourth, Fifth and Sixth Amendment rights to be his arrest are not cognizable on habeas review under the introduced into evidence at trial. On June 30, 1998, the doctrine of Stone v. Powell. district court denied his petition for a writ of habeas corpus. This appeal followed. For reasons to be discussed, we affirm IV. Failure To Invoke Right To Counsel the district court's ruling in its entirety. Machacek filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d). Thus, the district court's review was limited to the standards of review set out in the AEDPA as follows: