Cooper v. Berghuis

Filing 6

OPINION and ORDER Denying 1 Petition for Writ of Habeas Corpus, and Granting Certificate of Appealability, in Part. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILBERN COOPER,
Case Number: 2:15-10679
HONORABLE SEAN F. COX

Petitioner,
v.
MARY BERGHUIS,
Respondent.
/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND GRANTING CERTIFICATE OF APPEALABILITY, IN PART
Petitioner Wilbern Cooper seeks habeas corpus relief under 28 U.S.C. § 2254.
Petitioner is a state prisoner in the custody of the Michigan Department of Corrections
pursuant to a felony-murder conviction. He seeks relief on the ground that his Fifth
Amendment rights were violated by the admission of his custodial statements. Respondent
argues that Petitioner’s challenge to the admission of one of his custodial statements is
procedurally defaulted and that all of the custodial statements were properly admitted. For
the reasons set forth below, the Court denies the petition and grants a certificate of
appealability, in part.
I.

Background
Petitioner’s conviction arises from the murder of David McKillop. McKillop was shot

multiple times in a home he shared with Paul Robert Jenkins. It was the prosecutor’s theory
that Jenkins was the intended target and that Petitioner had gone to Jenkins’ home at the

direction of Petitioner’s roommate, John Anderson. Jenkins purportedly owed a large sum
of money to Anderson for drugs and Petitioner and some associates were directed to go to
Jenkins’ home to encourage him to repay the debt. The Michigan Court of Appeals provided
this overview of the circumstances leading to Petitioner’s conviction:
The victim was murdered in September of 1978. His body was discovered by
his roommate, Paul Jenkins, who was not home during the murder. The victim
was lying in a pool of blood in his bedroom with his hands tied behind his
back with an electrical cord. He was shot seven times in the head, and
sustained an injury to his groin. A pillow was discovered next to the victim’s
body and was riddled with bullet holes, residue, burns, and blood.
While the police conducted an initial investigation in 1978, they did not
discover any evidence of a forced entry or ransacking. The police interviewed
Jenkins, who informed them that the victim was involved in a cult and was
probably murdered for having sex with married women. Jenkins allegedly
owed a debt to John Anderson, defendant’s roommate, although Jenkins
denied this at the time of trial. The police also interviewed Billy Lolley.
Lolley had encountered the victim either the day of the murder or the day
before, as the victim worked at a real estate agency owned by Jenkins, and the
victim had shown Lolley a house. While the detectives pursued several leads,
they cleared all of their suspects without discovering who killed the victim.
In November of 2006, however, Lolley contacted the Farmington Hills Police
Department about the murder, seeking to clear his conscience. Lolley told the
police that someone had offered defendant $3,000 to kill a man and defendant,
in turn, offered Lolley $1,500 to be the driver. Lolley refused the offer,
thinking that defendant may have been joking. Yet, after the murder,
defendant told Lolley that he had killed the victim. Defendant explained that
he laid the victim down on the floor, put a pillow on his head, and shot him
repeatedly in the head. Defendant confessed to Lolley that they had meant to
kill Jenkins but had accidently killed the victim. Anderson warned Lolley to
keep quiet or they would kill Lolley or his children.
The police interviewed defendant several times, and defendant’s statements
were admitted at trial.
People v. Cooper, No. 304610, 2013 WL 2223896 (Mich. Ct. App. May 21, 2013).
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Following a jury trial in Oakland County Circuit Court, Petitioner was convicted of
first-degree felony murder and second-degree murder. The second-degree murder count was
vacated on double jeopardy grounds.

On June 1, 2011, he was sentenced to life

imprisonment for felony murder. Petitioner filed an appeal of right in the Michigan Court
of Appeals, raising several claims, including the claim raised in this petition. The Michigan
Court of Appeals affirmed Petitioner’s conviction. Id. The Michigan Supreme Court denied
Petitioner’s subsequent application for leave to appeal. People v. Cooper, 495 Mich. 900
(2013).
Petitioner then filed the pending habeas corpus petition through counsel. He raises
this claim:
The trial court violated Mr. Cooper’s constitutional rights by admitting into
evidence statements obtained where police questioned appellant after he
unambiguously invoked his Fifth Amendment right to remain silent; any
statements made thereafter were involuntary and should have been suppressed.
Respondent has filed an answer in opposition, arguing that portions of this claim are
procedurally defaulted and that the entire claim is without merit.
II.

Standard
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”). Under the AEDPA, a state prisoner is entitled to a writ of habeas
corpus only if he can show that the state court’s adjudication of his claims –
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or

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(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
A decision of a state court is “contrary to” clearly established federal law if the state
court arrives at a conclusion opposite to that reached by the Supreme Court on a question of
law or if the state court decides a case differently than the Supreme Court has on a set of
materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405 (2000). An
“unreasonable application” occurs when “a state court decision unreasonably applies the law
of [the Supreme Court] to the facts of a prisoner’s case.” Id. at 408. “[A] federal habeas
court may not issue the writ simply because that court concludes in its independent judgment
that the relevant state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. at 411.
The Supreme Court has explained that “[a] federal court’s collateral review of a
state-court decision must be consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a
‘highly deferential standard for evaluating state-court rulings,’ and ‘demands that state-court
decisions be given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)
(quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)); Woodford v. Visciotti, 537 U.S.
19, 24 (2002) (per curiam). “[A] state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011).

4

The Supreme Court has emphasized “that even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable.” Id. at 102. Furthermore, pursuant to
§ 2254(d), “a habeas court must determine what arguments or theories supported or ... could
have supported, the state court's decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are inconsistent with the
holding in a prior decision of th[e Supreme] Court.” Id.
Although 28 U.S.C. § 2254(d), as amended by the AEDPA, does not completely bar
federal courts from relitigating claims that have previously been rejected in the state courts,
it preserves the authority for a federal court to grant habeas relief only “in cases where there
is no possibility fairminded jurists could disagree that the state court’s decision conflicts
with” Supreme Court precedent. Id. Indeed, “Section 2254(d) reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a
substitute for ordinary error correction through appeal.” Id. (quoting Jackson v. Virginia,
443 U.S. 307, 332 n. 5 (1979)) (Stevens, J., concurring)). Therefore, in order to obtain
habeas relief in federal court, a state prisoner is required to show that the state court’s
rejection of his claim “was so lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for fairminded disagreement.” Id.
at 103.
Additionally, a state court’s factual determinations are entitled to a presumption of
correctness on federal habeas review. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut
this presumption with clear and convincing evidence. See Warren v. Smith, 161 F.3d 358,
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360-61 (6th Cir. 1998). Moreover, habeas review is “limited to the record that was before
the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).
III.

Discussion
Over 32 years after David McKillop’s murder, Petitioner was convicted of first-degree

felony murder and sentenced to life imprisonment. Petitioner argues that his custodial
statements were improperly admitted because his assertion of his right to silence was not
scrupulously honored. Alternatively, he argues that his custodial statements were not
voluntarily made. Petitioner further contends that the admission of these statements was not
harmless error.
Police interviewed Petitioner twice before his arrest, once in December 2006, and
once in January 2010. Police interviewed Petitioner three times after arresting him on March
2, 2010. Two of these interviews occurred on March 2, 2010, and one occurred the following
day, March 3, 2010. Petitioner challenges the admission of the second March 2nd interview
and the March 3rd interview. The Court finds that Petitioner clearly and unambiguously
invoked his right to remain silent during the second March 2nd interview and that admission
of the portion of the interview following invocation of this right violated Petitioner’s
constitutional right to remain silent. The state court’s finding that this error was harmless is
not contrary to or an unreasonable application of Supreme Court precedent. The Court
further finds that Petitioner’s challenge to the March 3rd interview is procedurally defaulted.
A.

Non-Custodial Interviews
1.

December 2006 Interview
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In 2006, Farmington Hills Police Department detective Richard Wehby and his
partner, Detective Scott Rzeppa, were working with the department’s cold case team, when
they received a call from Bill Lolley regarding a murder which occurred in 1978. Lolley
identified the killer as Petitioner. The detectives determined that Lolley was referring to the
murder of David McKillop. Detective Wehby and another detective interviewed Petitioner
in December 2006.

Petitioner was not under arrest at the time.

Detective Wehby

characterized Petitioner as cooperative and talkative. Petitioner described his relationship
with John Anderson, a drug dealer who allowed Petitioner to live in his basement when
Petitioner was 17-years old. Anderson was like a father-figure to Petitioner, but also allowed
Petitioner to be a fall guy when police investigated Anderson’s illegal activities. Petitioner
knew Lolley from the neighborhood. He and Petitioner would occasionally socialize.
Detective Wehby testified that when he asked Petitioner about Robert Jenkins, Petitioner
seemed nervous and his face flushed. Detective Wehby informed Petitioner that police had
information that Petitioner had been paid to kill someone, but that he killed the wrong person.
In response, Petitioner changed the subject. Petitioner ultimately denied ever killing anyone
for money, but did not deny having killed someone.
During the interview, Petitioner agreed to provide a DNA sample, but, by the end of
the interview, he declined to do so. Detective Wehby also testified that Petitioner took
measures during the interview which Detective Wehby interpreted as Petitioner avoiding
leaving behind any traces of DNA evidence. For example, Petitioner smoked five cigarettes
during the course of the interview, stepping outside with detectives each time to do so.
7

Petitioner never discarded his cigarettes in the receptacles outside the police station. He
instead placed the paper and filter into his pocket. When he was finished drinking his coffee,
he broke the styrofoam cup into pieces and placed the pieces in his pocket. Also, instead of
discarding his chewing gum into a garbage can, he placed the gum into a piece of the
styrofoam cup and placed the garbage in his pocket. When Petitioner advised the detectives
that he wanted to end the interview, the detectives ended the interview.
2.

January 26, 2010 Interview

Approximately three years later, on January 26, 2010, Detectives Wehby and Rzeppa
interviewed Petitioner at the car dealership where Petitioner worked. Detective Wehby
testified that the three-year interval between the two interviews was attributable to the
continuing investigation, a change in leadership for the prosecutor’s office, and “a lot of
confusion” regarding caseloads. 5/9/11 Tr. at 12, ECF No. 5-15, Pg. ID 833. The detectives
interviewed Petitioner in the manager’s office of the car dealership. They advised Petitioner
that he could leave at anytime. Detective Wehby told Petitioner that they believed he was
McKillop’s shooter, but that they believed others were involved as well. Petitioner told
Detective Wehby that, if he talked, he would need protection and a grant of immunity from
the prosecutor. He also asked Detective Wehby about sentencing guidelines. Petitioner
stated that he needed to talk to his wife and prepare her for what was coming, including
transferring some properties into her name. Petitioner asked if he could ask the detectives
a hypothetical question. While pointing to a picture of John Anderson, Petitioner asked:
“[L]et’s say John ... put me up to this. I broke into the house. I shoot the guy, is that what
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you’re saying?” 5/5/11 Tr. at 164, ECF No. 5-13, Pg. ID 805. Detective Wehby responded
yes, and Petitioner just smiled at him. Detective Wehby also testified that, as he did in his
first interview, Petitioner deposited his coffee cup in his pocket and took his cigarette stub
with him. At the end of the interview, Detective Wehby presented Petitioner with a warrant
for his DNA. Petitioner questioned the authenticity of the warrant, but submitted to the
collection of a sample.
B.

Custodial Interviews
1.

March 2, 2010, First Interview

Petitioner was arrested by Bay City Police on March 2, 2010, pursuant to a warrant
charging him with open murder. Detectives Wehby and Rzeppa interviewed Petitioner at the
Bay City Police Department. After being advised of his constitutional rights, Petitioner
waived his right to remain silent. His interview with the detectives was recorded and the
DVD played for the jury. Petitioner admitted that he knew some things about the murder,
but denied that he was the shooter. He told the detectives that there were two “incidents”
involved and that the second “incident” was the shooting. The first incident occurred several
days before the murder. Petitioner, Donnie McKinney, and Mark Bollis went to Jenkins’
home at the direction of John Anderson to convince Jenkins to pay a debt owed to Anderson.
No one was home when they arrived, but they entered the home anyway. Petitioner could
not recall whether they picked the lock to enter the home, if the door had been unlocked, or
they entered another way. The men sat in the home’s living room for approximately an hour
and a half. As they waited, they discussed a plan to tie Jenkins up, beat him, and deliver the
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message that he needed to repay the money he owed. Petitioner found an extension cord in
the living room and held onto it so he would be prepared when Jenkins arrived home. He
told the detectives that he grabbed the extension cord and “I figured I’d tie him up in a chair
... and then totally beat the shit out of somebody when they can’t defend themselves being
tied up in a chair.” ECF No. 1-5, Pg. ID 141. After waiting for an hour and a half for
Jenkins to arrive, the men gave up and left the home.
A few days later, Anderson directed the men to try to speak to Jenkins again. This
time, Petitioner, McKinney, Bollis, and a fourth male, whose name Petitioner did not know,
went to the home. They sat outside the home for approximately half an hour when a car
pulled up. A man exited the car and entered the home. The four men exited the vehicle.
McKinney, Bollis, and the unidentified male entered Jenkins’ home. Petitioner stated that
he waited outside the home on the front porch for a while. He heard arguing from inside the
home and then gunfire. Petitioner stated that he left, walking on foot to his home, which was
about ten miles away. Petitioner maintained that he did not learn that someone had been
killed that night until a couple of years later, but also stated that a few days after the murder,
he overheard a conversation between Terry Beck and Anderson, during which he Beck told
Anderson that they had gotten the wrong guy. Petitioner claimed not to have known that
anyone had a weapon when they pulled up outside Jenkins’ home. Almost three hours into
the interview, Petitioner made the following statement: “See, that’s why I don’t want to talk
to you guys about this because who do I have to collaborate anything I have to say?” ECF
No. 1-5, Pg. ID 193. Detectives continued to question Petitioner for a short time after this
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statement.
2.

March 2, 2010, Second Interview

Petitioner was transported to the Farmington Hills Police Department and again
interviewed by Detectives Wehby and Rzeppa.1 The interview commenced at approximately
10:30 p.m. Detective Wehby reminded Petitioner that the Miranda form Petitioner signed
earlier was still in effect. Petitioner continued to deny that he shot McKillop. He repeated
his earlier statement that several days before the murder, he, McKinney, and Bollis went to
Jenkins’ home to talk to Jenkins about money he owed to Anderson. He also stated that on
the night of the murder, he, McKinney, Bollis, and a fourth man went to Jenkins’ home. The
other three men entered the home when a man they thought was Jenkins arrived home.
Petitioner waited outside on the front porch. After a minute, he heard yelling and then
several gunshots. Petitioner left the front porch and began a ten-mile trek home. He tried
to stay out of sight because he did not want McKinney, Bollis and the third man to see him
as they were leaving the home.
Approximately one hour after the interview commenced (at 11:35 p.m.), Petitioner
stood up and said, “No, we’re done.” ECF No. 5-18, Pg. Id 1047. He also twice asked to be
taken back to his cell. Id. Detective Wehby said, “If you don’t wanna talk to us fine, we’re

1

Petitioner states that the transcript of the second March 2, 2010 interview is
attached as Exhibit E to his petition. It appears to have been omitted from the Court
filing. A transcript of the March 2, 2010, interview at the Farmington Hills Police
Department was attached as an exhibit to Petitioner’s brief on direct appeal to the
Michigan Court of Appeals. The Court has reviewed that transcript in place of Exhibit E
as it is clear this is the transcript intended as Exhibit E.
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gonna stare at you all night.” Id. Police continued to question him. Ten minutes later,
Petitioner said, “I have nothing further to say.” Id. at Pg. ID 1050 At 11:53 p.m., Petitioner
said, “Thank you for your time, I’m not talking anymore.” Id. at 1051. Police disregarded
Petitioner’s statement and asked whether he shot and killed McKinnon. Petitioner replied,
“No.” Id. at 1052. Questioning stopped and Petitioner was returned to his cell at
approximately 11:54 p.m.
During both of the March 2nd interviews, Detective Wehby referenced DNA
evidence. He implied that the DNA evidence might reveal that Petitioner had actually
entered the home, rather than waited outside on the front porch as he claim. Detective
Wehby testified at trial that they had no DNA evidence linking Petitioner to the crime and
that Petitioner’s DNA sample was never tested to determine whether it could be linked to a
hair that was found at the crime scene.
3.

March 3, 2010 Interview2

Detectives Wehby and Rzeppa interviewed Petitioner again the following morning,
March 3, 2010, at approximately 9:00 a.m. Before questioning began, the detectives
informed Petitioner that he was still entitled to the rights listed on the Miranda form that he
signed the previous day. Petitioner initially reiterated his story that he remained on the front

2

Pages 60-62 of this interview transcript are omitted from Petitioner’s Appendix
F. They are also omitted from the appendix to Petitioner’s brief in the Michigan Court of
Appeals. These omitted pages are attached to the State’s brief on appeal in the Michigan
Court of Appeals and the Court has reviewed these pages. See ECF No. 5-19, Pg. ID
1270-71.
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porch on the night of the shooting. As the interrogation progressed, Petitioner admitted that
he entered the house and that he sat on the couch while McKillop struggled with Bollis and
an unknown black male. He admitted that he threw Bollis an extension cord to help
McKinney tie up McKillop. McKinney pulled a gun out of his jacket. Petitioner told the
detectives that McKinney shot McKillop in the head. After a pause, McKinney shot
McKillop several more times. Petitioner said he fled after the first few shots were fired.
C.

Assertion of Right to Remain Silent

The Fifth Amendment provides that “[n]o person shall be . . . .compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v.
Arizona, 384 U.S. 436 (1966), the Supreme Court held that, to protect a suspect’s Fifth
Amendment rights, an individual who has been taken into custody or otherwise deprived of
his freedom and is questioned must be advised, prior to any questioning, “that he has the
right to remain silent, that anything he says can be used against him in a court of law, that
he has the right to the presence of an attorney, and that if he cannot afford an attorney one
will be appointed for him.” Id. at 478-79. The Supreme Court has held that if a suspect
“indicates in any manner, at any time prior to or during questioning, that he [or she] wishes
to remain silent, the interrogation must cease.” Id. at 473-74. An individual must invoke his
right to remain silent unambiguously. Berghuis v. Thompkins, 560 U.S. 370, 381-82 (2010)
(holding that individual who did not say that “he wanted to remain silent or that he did not
want to talk with the police,” failed to invoke his right to cut off police questioning). “The
admissibility of statements obtained after an individual has invoked his right to remain silent
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depends on whether the police ‘scrupulously honored’ the ‘right to cut off questioning.’”
Tremble v. Burt, 497 Fed. App’x 536, 544 (6th Cir. 2012) (quoting Michigan v. Mosley, 423
U.S. 96, 104-05 (1975)).
Petitioner claims that he asserted his Fifth Amendment right to remain silent during
both of his March 2nd interviews and during his March 3rd interview, that police did not
“scrupulously honor[]” his right to cut off questioning, and that statements from all three
interviews should have been excluded.
1.

The First March 2nd Interview

Petitioner was arrested on March 2, 2010 in Bay City, pursuant to a warrant charging
him with open murder. After being advised of his Miranda rights, Petitioner was questioned
by Detectives Wehby and Rzeppa. More than three-quarters into this interview, the
following exchange occurred:
Det. Wehby:

We don’t have a weapon. I’m telling ya we don’t have
a weapon. The only way I can prove who shot and killed
him is if somebody tells me they shot and killed him.

Petitioner:

See, that’s why I don’t want to talk to you guys about this
because who do I have to collaborate anything I have to say?

ECF No. 1-5, Pg. ID 193.
Petitioner argues that this statement amounted to an unambiguous assertion of his
right to remain silent. The Michigan Court of Appeals rejected this argument. After citing
the correct constitutional standard, the state court held: “While defendant indicated his
preference was not to speak with the police unless someone could corroborate his statements,

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a preference is not an unequivocal or unambiguous assertion of the right to remain silent.”
Cooper, 2013 WL 2223896 at *2. Petitioner’s statement did not clearly indicate a desire to
cease questioning.

The state court’s conclusion, therefore, is not an unreasonable

application of Supreme Court precedent.
2.

The Second March 2nd Interview

Detectives Wehby and Rezzpa interviewed Petitioner a second time on March 2nd.
This interview occurred after Petitioner was transported from the Bay City Police
Department to the Farmington Hills Police Department. Petitioner maintains that, during this
interview, he also invoked his right to remain silent. Approximately one hour after the
interview commenced, Petitioner stood up and said, “No, we’re done.” (ECF No. 5-18, Pg.
Id 1047). Detective continued to question him for approximately eighteen more minutes,
during which time Petitioner twice asked to be returned to his cell and twice stated he had
nothing further to say. The Michigan Court of Appeals held that Petitioner “unambiguously
and unequivocally invoked his right to remain silent.” Cooper, 2013 WL 2223896 at *2.
The Court agrees with the Michigan Court of Appeals’ holding that Petitioner’s statements
constituted a clear and unambiguous assertion of Petitioner’s right to remain silent. The
Michigan Court of Appeals, however, declined to reverse Petitioner’s conviction on this basis
because the court held the trial court’s failure to suppress the statements from this interview
to be harmless beyond a reasonable doubt. Id. at *3. The state court reasoned:
Of significant importance here is that defendant did not make any further
admissions after invoking his right to remain silent during this interview. In
fact, defendant denied knowing the victim and denied shooting him.
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There also was substantial evidence at trial from which a rational jury could
find defendant guilty beyond a reasonable doubt absent the error. In an earlier
interview in Bay City, defendant admitted to breaking into the house where the
victim resided a few days before the murder with the intent to hurt Jenkins, and
that he had taken an extension cord from a lamp with the plan of tying up
Jenkins. He also admitted that he was on the porch the night of the murder. At
trial, Lolley testified that defendant confessed to the killing, admitting that he
tied the victim up and “laid him down on the floor[,][p]ut a pillow on his head
and shot him in the back of the head. Emptied the gun out.” Considering this
evidence, any error in admitting evidence of defendant’s limited statements
after he invoked his right to remain silent was harmless beyond a reasonable
doubt.
Id.
On federal habeas review, relief may not be granted “based on trial error unless [a
petitioner] can establish that it resulted in ‘actual prejudice.’” Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting United States v. Lane, 474 U.S. 438, 449 (1986)). Under this
test, relief is proper only if the federal court has “grave doubt about whether a trial error of
federal law had ‘substantial and injurious effect or influence in determining the jury’s
verdict.’” O’Neal v. McAninch, 513 U.S. 432, 436 (1995). Courts on collateral review must
“give a heightened degree of deference to the state court’s review of a harmless error
decision.” Langford v. Warden, 665 Fed. App’x 388, 389 (6th Cir. 2016) (citing Davis v.
Ayala, 576 U.S. —, 135 S. Ct. 2187, 2197 (2015)).
Although detectives continued to question Petitioner for 18 minutes after he invoked
his right to remain silent during the second March 2nd interview, the Michigan Court of
Appeals accurately concluded that Petitioner said little of substance after invoking his right
to remain silent. Petitioner did not give an incriminating statement after invoking his right

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to remain silent and nothing he said contradicted or supplemented any of his previous
statements. Thus, the admission of the portion of the second March 2nd interview following
Petitioner’s assertion of his right to remain silent did not have a “substantial and injurious
effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623.
3.

The March 3rd Interview

Finally, Petitioner challenges the trial court’s failure to suppress his March 3rd
interview. Respondent argues that Petitioner’s challenge to the admissibility of this
statement is procedurally defaulted. The Court finds that the claim is procedurally defaulted
and that Petitioner has not alleged cause and prejudice to excuse the default, nor has he
shown that failure to consider the claim would work a manifest injustice.
Federal habeas relief is precluded on claims that were not presented to the state courts
in accordance with the state’s procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 85-87,
(1977). The doctrine of procedural default is applicable when a petitioner fails to comply
with a state procedural rule, the rule is actually relied upon by the state courts, and the
procedural rule is “independent of the federal question and adequate to support the
judgment.” Walker v. Martin, 562 U.S. 307, 315 (2011) (internal quotations omitted).
Federal courts on habeas review must decide whether a state procedural bar is adequate.
That is, the “‘adequacy of state procedural bars’ ... is not within the State’s prerogative
finally to decide; rather, adequacy ‘is itself a federal question.’” Lee v. Kemna, 534 U.S.
362, 375 (2002) (quoting Douglas v. Alabama, 380 U.S. 415, 422 (1965)). “[O]rdinarily,
violation of ‘firmly established and regularly followed’ state rules ... will be adequate to
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foreclose review of a federal claim,” but there are “exceptional cases in which exorbitant
application of a generally sound rule renders the state ground inadequate to stop
consideration of a federal question.” Id. at 376.
The Michigan Court of Appeals expressly relied on the invited-error doctrine in
declining to review the admission of Petitioner’s March 3rd interview:
This issue has been waived. Waiver is the intentional relinquishment of a
known right that extinguishes any error and precludes appellate review.
People v. Carter, 462 Mich. 206, 215; 612 N.W.2d 144 (2000).
In the direct examination of Detective Richard Wehby, the prosecution did not
ask about the March 3rd interview. During cross-examination, however,
defense counsel initiated a line of questioning regarding the detective’s false
representations to defendant about DNA evidence during the March 2nd
interview at Bay City. The following colloquy ensued:
Q.

Okay. And you did that in order to try to get him
to admit something that he didn’t do.

A.

I was trying to get him to open up further about
his involvement in the incident, yes.

Q.

He never did that, did he?

A.

No, as a matter of fact he did.

Q.

He never told you he was inside when you had
this interview, did he?

A.

Did he ever tell me that he was inside?

Q.

No, I said during this interview did he tell you he was inside?

A.

No, sir not during that interview he didn’t tell me.
[Emphasis supplied by Michigan Court of
Appeals.]

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On redirect, the prosecution then asked if defendant ever indicated that he was
inside the house, to which the detective replied: “Yes, he did.” The
prosecution asked if that admission occurred during the March 3rd interview,
to which the detective replied in the affirmative and explained that it was in
that interview that defendant changed his story, admitted to entering the house,
and admitted to providing the extension cord to tie the victim up and helping
to subdue the victim. Defense counsel then requested that the transcript of the
March 3rd interview be provided to the jury and that all of the taped interviews
be played for the jury.
Thus, it was defendant’s questioning of Detective Wehby that resulted in the
reference to the March 3rd interview and it was defendant who subsequently
moved to admit that interview at trial. Defendant made a strategic choice
when attempting to impeach Detective Wehby. Defendant then made a second
strategic choice in introducing the videotape of this interview in an effort to
show the jury the apparent coerciveness of the police. These strategic choices
were ultimately unsuccessful, and defendant now objects to the admissibility
of the March 3rd interview. Yet, “[a]ppellate review is precluded because
when a party invites the error, he waives his right to seek appellate review, and
any error is extinguished.” People v. Jones, 468 Mich. 345, 352 n. 6; 662
NW2d 376 (2003).
Cooper, 2013 WL 2223896 at *3.
Under the doctrine of invited error, a party waives the right to seek appellate review
when the party’s own conduct directly caused the error. People v. McPherson, 263 Mich.
App. 124, 139 (Mich. Ct. App. July 20, 2004) (citing People v. Jones, 468 Mich. 345, 352
(Mich. 2003)). The Sixth Circuit in Fields v. Bagley, 275 F.3d 478 (6th Cir. 2001) explained
invited error as “a branch of the doctrine of waiver in which courts prevent a party from
inducing an erroneous ruling and later seeking to profit from the legal consequences of
having the ruling set aside.” Id. at 485-86 (citing Harvis v. Roadway Express, Inc., 923 F.2d
59, 61 (6th Cir. 1991)). Further, “[w]hen a petitioner invites an error in the trial court, he is
precluded from seeking habeas corpus relief for that error.” Id. at 486 (citing Leverett v.
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Spears, 877 F.2d 921, 924 (11th Cir. 1989)); Draughn v. Jabe, 803 F.Supp. 70, 75 (E.D.
Mich. 1992). This doctrine has been found to be long-established and regularly followed in
Michigan. Pattereson v. Curtin, No. 1:13-cv-503, 2016 WL 4150730, *15 (W.D. Mich. Aug.
4, 2016); see also Antoine v. Mackie, No. 14-14933, 2015 WL 6671570, *5, n.2 (E.D. Mich.
Nov. 2, 2015) (finding that Michigan Court of Appeals’ reliance on invited error doctrine
constituted procedural default of claim); People v. Whetstone, 326 N.W.2d 552, 554 (Mich.
Ct. App. Sept. 21, 1981) (finding that under the invited error doctrine a party waives review
of the issue on appeal).
Prior to defense counsel’s cross-examination of Detective Wehby, a discussion was
held outside the presence of the jury regarding the March 3rd interview. The prosecutor
clearly indicated his intention was to introduce portions of the March 3rd interview only as
necessary to impeach Petitioner if he testified. Petitioner argues that counsel’s questions to
Detective Wehby regarding whether Petitioner ever admitted to being inside the house during
the first March 2nd interview were narrowly crafted to address only Detective Wehby’s
statements regarding (non-existent) incriminating DNA evidence. The Michigan Court of
Appeals held that the questions were not narrowly tailored to this specific topic. The Court
finds that this is a reasonable interpretation of the record. The Michigan Court of Appeals’
reliance on invited error to bar consideration of Petitioner’s challenge to the March 3rd
interview was not an exorbitant application of the rule. It was, instead, enforcement of a
firmly established and regularly followed procedural rule.
Petitioner’s challenge to the March 3rd interview is thus procedurally defaulted unless
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Petitioner shows cause for the default and actual prejudice that resulted from the alleged
violation of federal law or that there will be a fundamental miscarriage of justice if the claims
are not considered. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). Petitioner neither
alleges nor establishes cause to excuse his default. The Court need not address the issue of
prejudice when a petitioner fails to establish cause to excuse a procedural default. See Smith
v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 1983).
Additionally, Petitioner has not established that a fundamental miscarriage of justice
has occurred. The miscarriage of justice exception requires a showing that a constitutional
violation probably resulted in the conviction of one who is actually innocent. Schlup v. Delo,
513 U.S. 298, 326-27 (1995). “‘[A]ctual innocence’ means factual innocence, not mere legal
insufficiency.” Bousley v. United States, 523 U.S. 614, 624 (1998). “To be credible, [a claim
of actual innocence] requires petitioner to support his [or her] allegations of constitutional
error with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup,
513 U.S. at 324. Petitioner has made no such showing. This claim, therefore, is procedurally
defaulted.
D.

Voluntariness of Statements

Finally, Petitioner argues that his custodial statements were involuntary because his
will was overborne by the conduct of the police. The Michigan Court of Appeals held the
statements, under the totality of the circumstances, were voluntarily made:
Defendant’s statements were voluntary. Defendant was 49 years old at the
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time of the police interviews, he had a criminal background and experience
with the criminal justice system, he boasted to the police that he was a
self-professed fan of cold case television programming, and his actions
indicated he was very familiar with DNA testing. At the beginning of the
custodial Bay City interview, defendant was read his Miranda rights and
explicitly waived those rights. There is no evidence that anyone threatened or
abused defendant. While the interviews were not short, defendant does not
claim that he was injured, intoxicated, drugged, or denied food, sleep, or
medical attention. He did not display any behavior suggesting that he failed
to comprehend the questions being asked of him. Therefore, under the totality
of the circumstance, we find that the confession was freely and voluntarily
made.
Cooper, 2013 WL 2223896 at *4.
The Fifth Amendment privilege against compulsory self-incrimination bars the
admission of involuntary confessions. Colorado v. Connelly, 479 U.S. 157, 163-64 (1986).
A confession is considered involuntary if: (1) the police extorted the confession by means
of coercive activity; (2) the coercion in question was sufficient to overbear the will of the
accused; and (3) the will of the accused was in fact overborne “because of the coercive police
activity in question.” McCall v. Dutton, 863 F.2d 454, 459 (6th Cir.1988). In determining
whether a confession is voluntary, the ultimate question is “whether, under the totality of the
circumstances, the challenged confession was obtained in a manner compatible with the
requirements of the Constitution.” Miller v. Fenton, 474 U.S. 104, 112 (1985). Without
coercive police activity, however, a confession should not be deemed involuntary. Connelly,
479 U.S. at 167 (“coercive police activity is a necessary predicate to the finding that a
confession is not ‘voluntary’ within the meaning of the Due Process Clause”). The burden
of proving that a confession was given involuntarily rests with the petitioner. Boles v. Foltz,

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816 F.2d 1132, 1136 (6th Cir. 1987). Voluntariness need only be established by a
preponderance of the evidence. Id. On federal habeas review, a federal court must presume
that the state court’s factual finding that a defendant fully understood what was being said
and asked of him was correct, unless the petitioner shows otherwise by clear and convincing
evidence. Williams v. Jones, 117 Fed. App’x 406, 412 (6th Cir. 2004).

The Michigan Court of Appeals applied a totality of the circumstances approach when
evaluating Petitioner’s claim, and, in so doing, it did not fail to adequately consider relevant
factors. Based upon the totality of the circumstances in this case, it was objectively
reasonable for the Michigan Court of Appeals to hold that Petitioner’s confession was
voluntary. See McCalvin v. Yukins, 444 F.3d 713, 720 (6th Cir. 2006). Accordingly, the
Court denies this claim.
IV.

Certificate of Appealability
In order to appeal the Court’s decision, Petitioner must obtain a certificate of

appealability. To obtain a certificate of appealability, Petitioner must make a substantial
showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this
denial, Petitioner must show that reasonable jurists could debate whether the petition should
have been resolved in a different manner, or that the issues presented were adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).
Courts must either issue a certificate of appealability indicating which issues satisfy the
required showing or provide reasons why such a certificate should not issue. 28 U.S.C. §
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2253(c)(3); Fed. R. App. P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307
(6th Cir. 1997). Here, jurists of reason could debate the Court’s holding regarding
Petitioner’s challenge to the admissibility of the March 3, 2010 interview. Therefore, the
Court grants Petitioner a certificate of appealability limited to that issue. The Court finds that
reasonable jurists would not debate the Court’s conclusions with respect to the challenges
to the admission of both of the March 2, 2010 interviews and denies a certificate of
appealability as to the remaining claims.
V.

Conclusion
For the reasons stated above, the Court DENIES the petition for a writ of habeas

corpus. The Court GRANTS a certificate of appealability limited to Petitioner’s challenge
to the March 3, 2010 interview and DENIES a certificate of appealability with respect to the
remaining claims.

s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: March 8, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
March 8, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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