Simpson v. Warden Warren Correctional Institution

Filing 86

REPORT AND RECOMMENDATIONS re 1 and 2 Petition for Writ of Habeas Corpus filed by Donovan E. Simpson. The Magistrate Judge RECOMMENDS that the petition for a writ of habeas corpus be GRANTED as to petitioner Simpsons convictions on aggravated murder, murder, and attempted murder, and that these convictions be VACATED subject to the State of Ohio commencing a re-trial on these charges within 90 days. The Magistrate Judge further RECOMMENDS that petitioner Simpsons convictions on his remaining convictions be DENIED and that he be required to serve the remainder of his sentences on those charges - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 11/10/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DONOVAN SIMPSON,
CASE NO. 2:06-CV-127
JUDGE EDMUND A. SARGUS, JR.
MAGISTRATE JUDGE ABEL

Petitioner,
v.
WANZA JACKSON,
Respondent.

REPORT AND RECOMMENDATION
Petitioner Donovan Simpson, a state prisoner, brings this action for a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. This case arises out of Simpson’s convictions for aggravated murder, murder, five counts of attempted murder, aggravated arson, and five counts of
felonious assault. He maintains that his convictions violated the Constitution because the prosecution introduced statements obtained in violation of Miranda and the Fifth Amendment during
interrogations on April 24 and 27 and June 16 and 20, 2000. This court denied the petition.1 The
United States Court of Appeals for the Sixth Circuit reversed, holding that the admission of
statements Simpson made on April 24 and 27 and June 20, 2000 was contrary to and an unreasonable application of Supreme Court precedent. It concluded that petitioner was entitled to the
issuance of a writ of habeas corpus as to his convictions for aggravated murder, murder, and
attempted murder, but affirmed the denial of the petition as to his convictions for aggravated
arson and felonious assault. Simpson v. Jackson, 615 F.3d 421, 423, 439, 441-42, 444-45 (6th
Cir. 2010). The United States Supreme Court granted Simpson’s petition for writ of certiorari,

1

 In addition to the confession claims, the petition also alleged that petitioner was denied a fair trial by the 
trial judge’s evidentiary rulings; he was denied his right to confront witnesses against him; the evidence was consti‐
tutionally insufficient; he was denied the effective assistance of counsel; the trial judge improperly failed to con‐
duct an inquiry into his attorney’s alleged conflict of interest, and the trial judge gave improper jury instructions, 
and that his arrest warrant was invalid. 

1 

vacated judgment, and remanded to the Court of Appeals for further consideration in light of
Howes v. Fields, 132 S.Ct. 1181, 565 U.S.

(2012). This matter is now before the district court

on remand from the United States Court of Appeals for the Sixth Circuit. Donovan v. Wanza
Jackson, Warden and Michael Sheets, Warden, No. 08-3224 (6th Cir. June 28, 2013) See, Doc.
65.
For the reasons that follow, the Magistrate Judge concludes that Howes does not alter the
outcome of this case and therefore RECOMMENDS that the petition for a writ of habeas corpus
be GRANTED as to petitioner Simpson’s convictions for aggravated murder, murder, and
attempted murder, and that these convictions be VACATED subject to the State of Ohio commencing a re-trial on these charges within 90 days. The Magistrate Judge further RECOMMENDS that the petition be DENIED as to petitioner Simpson’s convictions for aggravated
arson and five counts of felonious assault and that he be required to serve the remainder of his
sentences on those charges.
FACTS UNDERLYING CRIMINAL CONVICTIONS:
The Ohio Tenth District Court of Appeals’s July 30, 2002decision affirming Simpson’s
convictions summarized the facts and procedural history of this case as follows:
In the early morning hours of October 27, 1997, a fire broke out at
151 South Wheatland Avenue in Columbus, Ohio. At the time, Aleta Bell
and three of her four children, Shenequa, age five, Elijah, age three, and
Myesha, five-months old, were asleep in the house. Also sleeping in the
house were two men, Terrance Hall and Gary Williams, Myesha's father.
Hall was awakened early that morning by a loud crash of glass. He found
the house engulfed in flames. After running out of the house, Hall was
able to wake Aleta Bell and Williams, who were sleeping with Myesha in
the same room. They were able to get out of the house. Unfortunately,
they were not able to reach the two children who were sleeping in a back
bed-room. Members of the Columbus Fire Department (“CFD”) arrived on
the scene and were able to find the two children and take them directly to
Children's Hospital. However, as a result of the injuries sustained in the
fire, Shenequa Bell died days later. Elijah Bell survived, but suffered
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serious injuries.
By indictment filed August 24, 2000, appellant was charged with
thirteen counts relating to the fire at 151 South Wheatland Avenue. Appellant was charged with two counts of aggravated murder for the death of
Shenequa Bell, in violation of R.C. 2903.01. Both counts contained death
penalty specifications pursuant to R.C. 2929.04(A). Appellant was also
charged with five counts of attempted murder of the five other people in
the house, in violation of R.C. 2923.02 and 2903.02; one count of aggravated arson, in violation of R.C. 2909.02; and five counts of felonious
assault, in violation of R.C. 2903.11. Appellant entered a not guilty plea to
all of the charges and proceeded to a jury trial.
Before his trial, appellant sought to suppress four verbal statements
he made to police officers prior to being indicted. Two of these statements,
one on April 24 and another on April 27, 2000, were made to officers
while appellant was incarcerated in the Licking Southeastern Correctional
Institution for an unrelated crime. Both of these statements were recorded.
No Miranda warnings were given to appellant before he made these statements. The other two statements, one on June 16 and one on June 20,
2000, were made at Columbus Police Headquarters. Both of these statements (which were essentially confessions) were videotaped. Appellant
was read his Miranda rights before these statements were made and he
signed a form indicating he understood and waived those rights. After an
evidentiary hearing, the trial court denied his motion thereby permitting
the state to introduce these statements into evidence at trial.
The following key testimony was presented during the state's case.
CFD Battalion Chief Tom Hackett was the first fire fighter to arrive at the
scene of the fire. He testified that, when he arrived, there was a male and a
female with a small infant on the front roof of the house. He stated that,
when water from the fire hoses hit the fire, the fire flashed back, which
was not typical. Hackett testified that a fire flashback under these circumstances was consistent with the presence of a flammable liquid. It was his
impression from the size of this fire and the time it took to extinguish it
that the fire was intentionally set.
After the fire was extinguished, Kenyon Beavers, a dog handler for
the CFD, testified that he went to the scene with his dog to search through
the first floor of the house for traces of flammable liquids. Beavers and the
dog walked through the first floor from the back to the front of the house.
In the front of the house, in the living room right inside a large window,
the dog gave a “primary alert” (i.e., an indication that the dog detected the
presence of a flammable liquid). After searching the rest of the room,
Beavers took the dog outside, where the dog gave another “primary alert,”
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this time on the porch directly outside the large window in the living
room. On cross-examination, Beavers admitted that surface samples taken
from the areas where his dog had indicated the primary alerts did not show
the presence of an accelerant when tested.
Billy Reedus, a CFD investigator who investigated the fire, testified
that he arrived at the scene after the fire was extinguished. Upon arrival, it
was obvious to him that the fire damage was centered in the living room
and that the fire's point of origin was in that room. Specifically, he testified that the fire started in the area below the large window in the living
room. He also saw a pattern of fire damage in the house that was consistent with the presence of some sort of accelerant at the origin of the fire. He
then eliminated likely accidental causes of a fire, such as electrical, weather and cigarettes, to arrive at his conclusion that the fire was intentionally
set. He further concluded that the fire had been set by a Molotov cocktail
that was thrown through the large window in the living room. Reedus
testified that a Molotov cocktail consists of a glass bottle filled with a
flammable liquid, such as gasoline or alcohol. A wick of some sort is then
placed in the bottle and set on fire. The bottle is thrown at the structure
causing the bottle to break on impact. The fire spreads through the spreading accelerant. Although he could find no definite physical evidence of a
Molotov cocktail, Reedus concluded that one had been thrown through the
large living room window to start the fire.
Detective Edward Kallay, Jr., a homicide detective who was the
primary investigator in this matter for the Columbus Police Department
(“CPD”), testified that, in January 2000, he had a conversation with a man
named Adiyat Diggs. Based upon that conversation, Kallay believed that
appel-lant might have information about a suspect who the police thought
could have been involved in starting this fire. On April 24, 2000, Detective Kallay and Federal Special Agent Ozbolt spoke with appellant at the
Southeastern Correctional Institution in Licking County where appellant
was incarce-rated. Their conversation was recorded.
Detective Kallay testified that appellant told him that he had picked
up a man named Daryl “Pumpkin” Kelly the day before the fire and took
him to a bar to meet a woman named Leah.FN1 Appellant waited outside
while Daryl Kelly went into the bar. When Kelly and Leah came out,
appellant heard Leah tell Kelly to “take care of this for me.” Appellant
told Detect-ive Kallay that he got a call from an excited Daryl Kelly the
next morning who said he needed another ride. When appellant picked
Kelly up, he said that Kelly smelled like gasoline. Daryl “Pumpkin” Kelly
was a suspect even before appellant provided this information.

4 

FN1. Leah was Leah Smith, a former friend of Aleta Bell who lived
in the other half of the house at 151 South Wheatland Avenue. Days before the fire, Leah had moved out of the house. The two had been involved
in a dispute earlier in the summer of 1997, when Aleta Bell accused Leah
of forging a driver's license with Aleta's personal information but with
Leah's picture. When Aleta found the driver's license, she took it back.
Leah later broke into Aleta's home and stole the driver's license. Leah was
charged with and pled guilty to one count of burglary arising from that
incident.
Three days later, on April 27, 2000, Detective Kallay and Special
Agent Ozbolt went to the Southeastern Correctional Institution to talk with
appellant again. In a recorded conversation, appellant again implicated
Leah and Kelly in the fire at 151 South Wheatland Avenue. Following this
conversation, the officers obtained appellant's release on probation so that
he would cooperate with them in their investigation. However, appellant
failed to cooperate, leading the officers to believe that appellant had more
to do with the fire than he was admitting. Due to appellant's failure to
cooperate with the investigation and failure to abide by the terms of his
probation, Detective Kallay arrested appellant on June 16, 2000.
After he was arrested, appellant was taken to CPD headquarters and
interrogated by Detective Kallay and Special Agent Ozbolt. The interrogation was videotaped. It is undisputed that, prior to being questioned,
appellant was read his Miranda rights. During questioning, appellant
admitted his involvement in starting the fire. He said that he met Leah and
Kelly the day before the fire when Leah asked appellant to take Kelly
somewhere that night. Later that evening, Kelly and appellant took two
empty bottles of alcohol and filled them with gasoline. They brought the
bottles to Leah who showed them how to make a Molotov cocktail. Appellant and Kelly then went to the area of 151 South Wheatland Avenue and
drove into an alley. After smoking some crack, Kelly got out of the car
with the two bottles and, a few seconds later, appellant heard glass break
and then saw Kelly running back towards the car without the bottles. The
two sped away to a crack house, where they paged Leah. She arrived and
paid them both with crack cocaine.
Detective Kallay further testified that, following these admissions, he
made arrangements to have appellant take a polygraph test. On June 20,
2000, appellant was brought again to the CPD to take the test. It is undisputed that appellant was read his Miranda rights again. However,
Detective Kallay testified that appellant was uncooperative so the test
could not be performed. Appellant's lack of cooperation was confirmed by
the testimony of Randy Walker, who had been hired to administer the test.
Nevertheless, while in the room waiting to take the test, appellant made
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more admissions regarding his involvement in the fire. Again, this interrogation was videotaped.
Appellant's recorded statements of April 24th April 27th and his
video-taped confessions of June 16th and June 20th were played for the
jury over appellant's objections.
The state then called Stanley Bowen, a Deputy Sheriff for Licking
County. Deputy Bowen was employed as a supervisor at the jail in which
appellant was incarcerated in April 2000. Deputy Bowen testified that he
overheard appellant ask “why didn't they charge the bitch too. It was her
idea to start the fire.” In addition, an inmate, who was in a cell next to
appellant, test-ified that appellant told him all about the fire. He said that
appellant told him there were three people involved, and that they used
Molotov cock-tails to firebomb the house.
At the conclusion of the state's case, appellant orally moved, pursuant
to Crim.R. 29, for a judgment of acquittal on the entire indictment, based
upon the state's alleged failure to prove the requisite mens rea. The trial
court denied the motion. Appellant then was advised of his constitutional
rights regarding his own testimony and he did not testify. The defense
rested its case without presenting any witness and renewed its motion for
judgment of acquittal, which again was denied by the trial court.
After deliberating, the jury returned verdicts finding appellant guilty
of all five counts of attempted murder and felonious assault, guilty of one
count of aggravated arson, guilty of the lesser included offense of murder
of Shenequa Bell, and guilty of the aggravated felony-murder of Shenequa
Bell, also finding appellant guilty of the death penalty specification
because the aggravated murder was part of a course of conduct involving
the purposeful killing of, or attempt to kill, two or more persons.
Subsequently, a mitigation hearing was held to determine the proper
penalty for the death penalty count of the indictment. The jury found that
the aggravating circumstances of the crime did not outweigh the mitigateing circumstances beyond a reasonable doubt and, therefore, voted to
impose a sentence of life imprisonment without parole eligibility for thirty
years. The trial court sentenced appellant on all counts to a total of 90
years in prison.
State v. Simpson, 2002 WL 1625559, *1 - *3 (Ohio Ct.App. 10th Dist. July 23, 2002).  

6 

SCOPE OF REMAND
The remand is “for further consideration in light of Howes.” Simpson v. Jackson, No. 083244 (6th Cir. June 28, 2013), see Doc. No. 65, PageID# 434. This constitutes a “GVR” (grant,
vacate, and remand order) or limited remand which constrains the Court to address only the
effect of Howes on this case. See United States v. Bowers, 220 Fed.Appx. 402, 404-05 (6th Cir.
March 19, 2007)(GVR constrains review to issue of application of United States v. Booker, 543
U.S. 220 (2005)(quoting United States v. Orlando, 363 F.3d 596, 601 (6th Cir. 2004)); see also
In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 722 F.3d 838, 845
(6th Cir. 2013)(GVR constrains review to application of Comcast Corp. v. Behrend, -- U.S. --,
133 S.Ct. 1426)(citations omitted.) A GVR does not constitute a reversal on the merits, or
suggest that the Circuit Court’s decision is erroneous.
In Stutson v. United States, 516 U.S. 193, 197–98, 116 S.Ct.
600, 133 L.Ed.2d 571 (1996), for example, the Court issued a GVR
directing the Eleventh Circuit to reconsider that case in light of the
Supreme Court's decision in Pioneer Investment Services Co. v.
Brunswick Associates Ltd. Partnership, 507 U.S. 380, 113 S.Ct.
1489, 123 L.Ed.2d 74 (1993). Focusing on the fact that the Eleventh Circuit did not fully consider whether Pioneer applied, and
classifying Pioneer as a “ potentially relevant decision[ ],” 516
U.S. at 197, 116 S.Ct. 600 (emphasis added), the Stutson Court
acknowledged that the Eleventh Circuit may “conclude that Pioneer does not apply” and thus reach the same result on remand. Id.
at 196, 116 S.Ct. 600.
Communities for Equity v. Michigan High School, 459 F.3d 676, 680 (6th Cir. 2006).
A GVR does not bind the lower court to which the case is
remanded; that court is free to determine whether its original
decision is still correct in light of the changed circumstances or
whether a different result is more appropriate. . . . Because the
lower court can decide either way—the Supreme Court not having
specified or even suggested which merits outcome is correct—the
Court cannot be said to have issued a decision regarding the
validity of any convictions. Instead, the GVR merely allows a

7 

lower court to reconsider its judgment in light of new circumstances[.]
Kenemore v. Roy, 690 F.3d 639, 642 (5th Cir. 2012)(footnote omitted).
Under the terms of the remand from the Court of Appeals for the Sixth Circuit, therefore,
this Court’s review is limited to the application of Howes, which deals with the constitutionality
of the prisoner interrogations by police.
In Howes v. Fields, 132 S.Ct. at 1181, the Supreme Court declined to adopted a “categoryical rule” requiring that all interrogations of a prisoner regarding events that occurred outside of the prison be considered to be custodial interrogations within the protections of Miranda
v. Arizona, 384 U.S. 436 (1966).2 Id. at 1187, 1188.
Not only does the categorical rule . . . go well beyond anything
that is clearly established in our prior decisions, it is simply wrong.
The three elements of that rule—(1) imprisonment, (2) questioning
in private, and (3) questioning about events in the outside world—
are not necessarily enough to create a custodial situation for Miranda purposes.
Id. at 1189. The “in private” questioning of an inmate about events that took place outside the prison does not, by itself, establish that a prisoner is “in custody” for purposes of Miranda. Id. at 1191. “[T]he determination of custody should focus on all of the features of the
interrogation . . . [including] the language that is used in summoning the prisoner to the interview
and the manner in which the interrogation is conducted.” Id. at 1192.

2

 In Miranda v. Arizona, 384 U.S. 478-79, the Supreme Court held:

[W]hen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any
significant way and is subjected to questioning. . . . He must be warned 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 prior to any questioning if he so
desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such
warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive
these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are
demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
Id.

8 

Howes did not invite or consent to the interview with police in advance, nor was he
advised “that he was free to decline to speak with the deputies.” Id. at 1192-93.
The interview lasted for between five and seven hours in the
evening and continued well past the hour when respondent generally went to bed; the deputies who questioned respondent were
armed; and one of the deputies, according to respondent, “[u]sed a
very sharp tone,” App. to Pet. for Cert. 76a, and, on one occasion,
profanity, see id., at 77a.
Id. at 1193. “Most important” to consideration of the custody determination, the
Supreme Court stated, was the fact that Howes
was told at the outset of the interrogation, and was reminded again
thereafter, that he could leave and go back to his cell whenever he
wanted. See id., at 89a–90a (“I was told I could get up and leave
whenever I wanted”); id., at 70a–71a. Moreover, [Howes] was not
physically restrained or threatened and was interviewed in a welllit, average-sized conference room, where he was “not uncomfortable.” Id., at 90a; see id., at 71a, 88a–89a. He was offered food and
water, and the door to the conference room was sometimes left
open. See id., at 70a, 74a.
Howes, at 1193. “All of these objective facts are consistent with an interrogation
environment in which a reasonable person would have felt free to terminate the interview and
leave.” Id. (citing Yarborough v. Alvarado, 541 U.S 652, 664–665 (2004)). The Supreme Court
reasoned:
Because he was in prison, [Howes] was not free to leave the
conference room by himself and to make his own way through the
facility to his cell. Instead, he was escorted to the conference room
and, when he ultimately decided to end the interview, he had to
wait about 20 minutes for a corrections officer to arrive and escort
him to his cell. But he would have been subject to this same
restraint even if he had been taken to the conference room for some
reason other than police questioning; under no circumstances could
he have reasonably expected to be able to roam free. And while
[Howes] testified that he “was told ... if I did not want to cooperate, I needed to go back to my cell,” these words did not coerce
cooperation by threatening harsher conditions. App. to Pet. for
Cert. 71a; see id., at 89a (“I was told, if I didn't want to cooperate,
9 

I could leave”). Returning to his cell would merely have returned
him to his usual environment.
Howes, 132 S.Ct. at 1193-94 (footnote omitted). Under these circumstances, the Supreme Court
held that Howes was not “in custody” such that the protections of Miranda applied. Howes, at
1194.
The Magistrate Judge therefore turns to the application of Howes to petitioner’s April and
June 2000 admissions to police.
JUNE 16, 2000, STATEMENTS
Each Court to review the issue has concluded that the trial court committed no error in
admitting Simpson’s June 16th incriminating statements to police. On that date, police had
arrested him for violating the terms of his judicial release and failing to cooperate. Simpson confessed to his involvement in the crime. Police videotaped the exchange. See Simpson v. Jackson, 615 F.3d at 425-26 (citing State v. Simpson, No. 01-AP-757, 2002 WL 1625559, at *1 (Ohio
App. 10th Dist. July 23, 2001). He made these admissions at the Columbus Police Headquarters
and after police read him his Miranda rights. He signed a form acknowledging that he understood and agreed to waive those rights. Id.
Petitioner argues that police violated Miranda when they questioned him after he expressed his desire to remain silent. Simpson v. Jackson, 615 F.3d at 430. The Sixth Circuit
rejected this argument, finding that “the officers validly obtained the waiver of Simpson's
Miranda rights prior to the June 16th interview.” The United States Court of Appeals for the
Sixth Circuit also rejected petitioner’s argument that his June 16th statement was coerced based
on the use of threats and promises. Id. at 434.
Petitioner’s custodial status was not at issue in the decision. Respondent and petitioner
agree that Simpson’s June 16th statements remain unaffected by the Supreme Court’s decision in
10 

Howes. See Respondent’s Brief in Response, Doc. No. 83, PageID# 4178; Simpson’s Supplemental Reply Brief, Doc. No. 84, PageID# 4220; Transcript, Oral Arguments, Doc. No. 85,
PageID# 4251.
The Magistrate Judge agrees. Simpson’s June 16th statements properly were admitted
against him at trial, and the issue need not be considered in view of Howes.
JUNE 20, 2000, STATEMENTS
The Sixth Circuit Court of Appeals rejected petitioner’s claim that police coerced his
June 20, 2000, statements to police through the use of false promises, threats and misleading
statements, See Simpson v. Jackson, 615 F.3d at 434, but granted relief on petitioner’s claim that
police “violated Miranda by discouraging him from consulting with an attorney.” Id. “[W]e
find that the state court's admission of the June 20th statement was an unreasonable application
of Supreme Court precedent.” Id. at 438.
The Sixth Circuit reasoned:
Coming into the June 20th interview, Simpson had already
given incriminating statements on June 16th. He had confessed to
being with Kelly immediately prior to the arson while Kelly
prepared the Molotov cocktail and to driving the car before and
after Kelly threw the Molotov cocktail at the house, though he
disclaimed having been involved in the planning of the attack or
having any intent to kill or harm anyone. Detective Kallay and
Agent Ozbolt seem to have suspected that Simpson was more
involved than he claimed. They therefore proposed, at the end of
the June 16th interview, that Simpson take a polygraph test. They
essentially told him that, if he had been completely truthful on the
16th, he would pass the test and they would continue to work with
him and seek favorable treatment from the prosecutor. If he failed
the lie detector, they would “know” that he was more involved
than he had admitted, and the officers would recommend that the
prosecutor bring the most serious possible charges against Simpson. Thus, the officers proposed the lie detector for two purposes.
The first purpose was to test the truth of Simpson's June 16th
statement. The second purpose was to get Simpson to confess to
his “true” role in the arson by telling him that, if he lied, the test
11 

would pick it up, so he should come clean before the test. On June
16th, Simpson initially agreed to take the test. However, he was
less than cooperative when the time actually arrived on June 20th.
***
At the beginning of the June 20th interview, in preparation for
the polygraph exam, Kallay had more strong words for Simpson.
He stated at various times, “You don't cooperate on this case, you
eat the whole thing. It's called agg murder—conspiracy to
commit.... If you don't cooperate then ... there are no holds barred,
and you're gonna lose. You're gonna spend the rest of your life in
jail.... If you don't take the test today ... we're gonna file the paper
on you today for complicity to commit agg murder. It's that
simple.” (A514–15, 518.)
***
b. Right to Counsel
Simpson . . . contends that the police violated Miranda by
suggesting that he needed an attorney only if he was lying. When
the polygraph examiner, Officer Walker, began discussing Simpson's Miranda rights and indicated that Simpson had the right to
have counsel present, Simpson replied, “Oh, I can have an attorney
present?” (A528.) Walker responded, “You c-can any-anytime,
you can always have an attorney present. It is my understanding
that you wanted to take the test.” (Id.) Simpson understandably
seems to have taken this to mean that, if he wanted an attorney
present, he would not be able to take the test that day. Furthermore,
he had already been told that if he did not take the polygraph that
day, he would be charged with aggravated murder immediately. . .
[T]his is not problematic under Miranda because it was essentially
the truth. The problem arises in what happened next:
Walker: Do you follow what I'm sayin'? That's ... if you're
telling me the truth, then you won't have a problem with the test. If
you're lying, then, uh, yeah, if I was lying, I probably would, I'd
probably get an attorney, I probably wouldn't take the test.
Simpson: Oh.
Walker: Yea, well, that's me. But that's a decision that, yeah,
you know, you have to make. This part of the form is wordy and
is-is lengthy. What this says is, that you are giving me permission
to give you the exam.
12 

(A531–32.)
Simpson claims that we have held a materially identical exchange to violate Miranda. In Kyger, we addressed a situation in
which the following transpired:
Officer: Steve, do you understand them rights?
Kyger: Yes, sir.
Officer: Alright, having them rights in mind, would you
answer some of our questions, without an attorney present?
Kyger: I'd just as soon have an attorney [']cause, you know
ya'll say there's been a shooting involved and that's a serious
charge.
Officer: Yes it is but we're investigating. We're not saying you
shot anybody. We're just investigating. Now, if you've got something to hide, I can understand you not wanting to sign that. If you
ain't got nothing to hide, you know, you can answer our questions.
Kyger: I ain't got nothing to hide.
Officer: Okay. But you don't want to answer our questions
without an attorney present now?
Kyger: You know, I'll answer a certain amount, you know.
Officer: Okay, you know well you know you have the right to
stop at any time. That's (inaudible) ...
Kyger: Where do I sign at?
Officer: Just where it says “sign.”
Kyger: Okay [Kyger then signs].
146 F.3d at 376–77 (emphasis added). In light of this colloquy, we
found that Kyger's statement was a request for counsel, such that
the interrogation should have stopped immediately. Id. at 379.
Importantly, however, we went on to state that:
[Even] if Kyger's request was equivocal, the subsequent statement by the police (“Now, if you've got some13 

thing to hide, I can understand you not wanting to sign
that. If you ain't got nothing to hide, you know, you can
answer our questions.”) was an inappropriate effort at
pressuring Kyger to answer, rather than an appropriate
attempt to get Kyger to clarify his response. This would
also render this questioning constitutionally infirm. See
Miranda, 384 U.S. at 454, 86 S.Ct. 1602 (disapproving of
just such a tactic); Davis v. United States, 512 U.S. 452,
461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (approving
the use of clarifying questions).
Id. (citation omitted). As the Kyger Court noted,
Miranda itself spoke ill of an interrogation technique in
which the interrogator tries to dissuade a suspect from
speaking with an attorney by saying “Joe, I'm only
looking for the truth, and if you're telling the truth, that's
it. You can handle this by yourself.” 384 U.S. at 454–55,
86 S.Ct. 1602.FN5
FN5. Kyger was not decided under AEDPA because
the petition had been filed prior to 1996. However, this is
immaterial because the relevant proposition from Kyger is
that the statement in question was a clear violation of
Supreme Court precedent. This application of Miranda
was not affected by the subsequent passage of AEDPA.
The warden concedes that the statement in Kyger is similar to
the statement by Officer Walker in this case. However, the warden
seeks to distinguish the cases on the temporal basis that Kyger
involved a suspect who had stated that he wanted to speak to an
attorney whereas Simpson had not yet requested counsel. We find
two faults with the warden's attempt at distinction.
First, Kyger expressly stated that the officer's statement was
inappropriate even if Kyger had only made an equivocal request
for counsel, as opposed to a clear request for counsel. 146 F.3d at
379. Here, though Simpson's statement was certainly not an unequivocal request for counsel, it was at least an equivocal expression that he was considering speaking to counsel. Indeed, that
Officer Walker responded with a clarifying statement (“You c-can
any-anytime, you can always have an attorney present. It is my
understanding that you wanted to take the test.”)—which was
appropriate under Davis, 512 U.S. at 461, 114 S.Ct. 2350—shows
that Officer Walker thought that Simpson might have been requesting counsel. Thus, because Simpson's statement was an equivocal
statement about his desire for counsel, Kyger is on all fours.
14 

Second, and more troubling, to accept the warden's distinction
would be to accept a rule that police may not discourage interviewees from persisting with their request for counsel after they
have already requested counsel, but may preemptively discourage
them from seeking the advice of counsel after informing them of
the right to counsel but before they actually request counsel. The
warden offers no authority, and we are aware of none, endorsing
such a strange proposition. In essence, to accept the warden's
distinction would be to approve the following alteration of the
Miranda warnings: “You have the right to an attorney, but you
only need to exercise that right if you are guilty or are lying.” This
would be an unreasonable rule and an unreasonable reading of
Miranda, which expressly disapproved of such a tactic. Miranda,
384 U.S. at 454–55, 86 S.Ct. 1602.
Here, Officer Walker indicated to Simpson that he only needed a lawyer if he had lied or intended to lie, and such a tactic is
highly likely to taint an interviewee's decision-making calculus.
The obvious takeaway from the perspective of someone in Simpson's position is that, if he requested an attorney, he would be
admitting to lying, which would result in his immediately being
charged with aggravated murder. Thus, his only other option, as
stated by Officer Walker, was to take the polygraph that day
without the assistance of counsel.
Framing the issue in this way is inherently coercive and
violative of Miranda. Furthermore, in so doing, Officer Walker
crossed the line from stating the truth to distorting the truth and,
arguably, to giving legal advice. Officers run a high risk when they
move into the realm of offering advice. It is quite possible that, had
Simpson spoken with an attorney, the attorney could have arranged
for a polygraph at a later date. Officer Walker essentially advised
Simpson to the contrary. As the Fifth Circuit—in a case in which
officers responded to an equivocal request for counsel by stating
that “an attorney could not relate [the suspect's] story to the police,
and [the officer] explained that an attorney would probably advise
him to say nothing”—explained:
[T]he limited inquiry permissible after an equivocal
request for legal counsel may not take the form of an
argument between interrogators and suspect about
whether having counsel would be in the suspect's best
interests or not. Nor may it incorporate a presumption by
the interrogator to tell the suspect what counsel's advice to
him would be if he were present. Such measures are
15 

foreign to the purpose of clarification, which is not to
persuade but to discern.
Officer Cunningham's explanation of the consequences of the suspect's talking to counsel might have
been innocuous, even proper, had it been correct.... But
even such explanations are perilous and, if given, must
not be materially incorrect.
Here they were incorrect: it was simply not true, as
Thompson was told, that “if he told his attorney he could
not tell his side of the story.”.... The point is that counsel's
advice about what is best for the suspect to do is for counsel, not the interrogator, to give. And it is for him to give
after consultation with his client and after weighing where
the suspect's best interests lie from the point of view of
the suspect, not from that of a policeman be he ever so
well intentioned. Until this occurs, it is simply impossible
to predict what counsel's advice would be; and even if it
were, the right to advice of counsel surely is the right to
advice from counsel, not from the interrogator.
Thompson v. Wainwright, 601 F.2d 768, 769, 772 (5th Cir.
1979).
Thompson's reasoning applies with equal force here. Simpson
correctly viewed Officer Walker as having superior knowledge
about his circumstances and options. Officer Walker crossed the
line separating adversary from advisor when he said that Simpson
only needed an attorney if he was lying. Not only was this not true
as a matter of legal strategy, as lawyers routinely instruct even
innocent clients not to speak with the police, but, even if it were
true, it was not Officer Walker's place to give the advice. Thus,
because Miranda itself expressly disapproved of the tactics used
here, as confirmed by Kyger,FN6 and because the warden's attempt
to distinguish Kyger is unpersuasive, we find that the state court's
admission of the June 20th statement was an unreasonable application of Supreme Court precedent.
FN6. “Although only Supreme Court case law is relevant
under the AEDPA in examining what Federal law is ‘clearly
established,’ the decisions of the United States Courts of Appeals
may be informative to the extent we have already reviewed and
interpreted the relevant Supreme court case law to determine
whether a legal principle or right has been clearly established by

16 

the Supreme Court.” Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.
t2003).
Simpson v. Jackson, 615 F.3d at 434-45.
Petitioner asserts that Howes has no bearing on Sixth Circuit’s holding that his June 20th
statements were improperly admitted at trial. Petitioner’s Supplemental Brief, Doc. No. 80,
PageID# 4138; Transcript, Oral Arguments, Doc. No. 85, PageID# 4239; 4270-71. Respondent
does not agree. Respondent’s Brief in Response, Doc. No. 83, PageID# 4186. Because, as set
forth above, petitioner’s custodial status was not determinative of the Sixth Circuit’s holding that
the trial court improperly admitted Simpson’s statements on June 20th the magistrate judge is not
persuaded by respondent’s argument that this issue need now be considered here.
Respondent argues that petitioner failed to establish that police coerced his statements on
June 20, 2000, and that this issue is properly before the district court pursuant to the remand of
the Court of Appeals.3 Id. PageID# 4181; 4184; Petitioner’s Supplemental Response, Doc. No.
84, PageID# 4200; 4202-04. Respondent further argues that admission of Simpson’s June 16,
2000, statements, alone, establishes his intent to commit aggravated murder, murder, and
attempted murder, and that therefore, the improper admission of his June 20, 2000, statements
constitutes harmless error. Respondent’s Brief in Response, Doc. No. 83, PageID# 4190-91;
Transcript, Oral Arguments, Doc. No. 85, PageID# 4265.
Petitioner counters that respondent has waived the issue of harmless error by failing
previously to raise the issue. Alternatively, petitioner contends that admission of Simpson’s June
20, 2000, statements does not constitute harmless error.4 Transcript, Oral Arguments, PageID#

3

 Petitioner indicates that the respondent previously conceded that Howes had no effect on the admission of
Simpon’s June 20, 2000, statements. See Petitioner’s Supplemental Brief, Doc. No. 80, PageID# 4138 (referring to
Warden Supp. Br. 40, No. 08-3224 (6th Cir. July 26, 2012).

17 

4271; Petitioner’s Supplemental Brief, Doc. No. 84, PageID# 4201. Petitioner further argues
that the district court should reinstate habeas corpus relief based on the improper admission of
his June 20th and June 16th statements, alone. Simpson’s Supplemental Brief, Doc. No. 80,
PageID# 4146.
Petitioner’s argument that the improper admission of his June 20th and June 16th
statements, alone, warrant relief is foreclosed by the decision of the Sixth Circuit, as is
respondent’s argument that improper admission of his June 20th statements constitute harmless
error:
Coming into the June 20th interview, Simpson had already
given incriminating statements on June 16th. He had confessed to
being with Kelly immediately prior to the arson while Kelly prepared the Molotov cocktail and to driving the car before and after
Kelly threw the Molotov cocktail at the house, though he disclaimed having been involved in the planning of the attack or
having any intent to kill or harm anyone.
Simpson v. Jackson, 615 F.3d at 434. Simpson’s June 16th statements fail to establish his
intent to commit the crimes at issue:

. . . Simpson's statements were, by far, the most damning
evidence against him. Simpson, 2002 WL 1625559, *5, 2002 Ohio
App. LEXIS 3785, at * 13 (“Without question, the most incriminating evidence presented against appellant at trial were his own
statements.”) There was no physical evidence or eyewitness linking him to the arson. Aside from his statements, only two other
pieces of evidence potentially implicated Simpson: (1) a sheriff's
deputy at the local jail testified that he overheard Simpson ask
“why didn't they charge the bitch too. It was her idea to start the
fire.”; and (2) an inmate from a cell next to Simpson testified that
Simpson told him that there were three people involved in the fire,
he was one of them, and that they used Molotov cocktails.
(A2249).
Id. at 442.

4

 The prejudicial impact of Simpson’s June 20, 2000, statements must be assessed in light of his April
2000, statements. This Court therefore will defer consideration regarding the issue of harmless error.

18 

The June 20th statement was, for lack of a better description,
all over the place. Simpson never actually took the polygraph, but
spoke at length with the man who would be the polygraph examiner. At one point, he retracted his admissions of June 16th,
returning to the position he took in April that he was not involved
at all. However, after further pressure from Kallay and Ozbolt,
Simpson admitted to being even more involved than he had
admitted in his June 16th statement. He admitted: (1) to hearing
Leah and Kelly discuss the arson one week before it happened
(A638–39); (2) that, on the day of the arson, he heard Leah tell
Kelly that she wanted the house “blown up” (A632); and (3) that
he heard Leah tell Kelly how to make a Molotov cocktail (A642–
44). Simpson's admissions on June 20th were, by far, the strongest
evidence of not only his involvement in the arson, but also the
extent of his knowledge and involvement before, during, and after
the arson.
However, even in the June 20th statement, Simpson still
maintained that he had not been involved in the planning of the
arson or in making the Molotov cocktails, and had no intent to
kill anyone. Thus, to prove that Simpson acted with the purpose
of causing the death of another, the State needed something more
than Simpson’s own admissions. Creatively, the State turned to
Simpson’s April denials to prove this element.
Id. (emphasis added). Thus, the Sixth Circuit’s decision on the admissibility of
Simpson’s statements explicitly rejects petitioner’s claim that admission of his June 16th and
June 20th statements, alone, warrant relief. Respondent’s argument that Simpson’s June 16th
statements, alone, establish petitioner’s intent to commit aggravated murder, murder, and
attempted murder, and that the improper admission of his June 20, 2000, constitutes harmless
error also is precluded by the decision of the United States Court of Appeals.

19 

APRIL STATEMENTS
The state appellate court made the following relevant findings of fact in regard to
Simpson’s April 24, 2000, and April 27, 2000, statements:
Detective Edward Kallay, Jr., a homicide detective who was
the primary investigator in this matter for the Columbus Police
Department (“CPD”), testified that, in January 2000, he had a
conversation with a man named Adiyat Diggs. Based upon that
conversation, Kallay believed that appellant might have information about a suspect who the police thought could have been
involved in starting this fire. On April 24, 2000, Detective Kallay
and Federal Special Agent Ozbolt spoke with appellant at the
Southeastern Correctional Institution in Licking County where
appellant was incarcerated. Their conversation was recorded.
Detective Kallay testified that appellant told him that he had
picked up a man named Daryl “Pumpkin” Kelly the day before the
fire and took him to a bar to meet a woman named Leah. FN1
Appellant waited outside while Daryl Kelly went into the bar.
When Kelly and Leah came out, appellant heard Leah tell Kelly to
“take care of this for me.” Appellant told Detective Kallay that he
got a call from an excited Daryl Kelly the next morning who said
he needed another ride. When appellant picked Kelly up, he said
that Kelly smelled like gasoline. Daryl “Pumpkin” Kelly was a
suspect even before appellant provided this information.
FN1. Leah was Leah Smith, a former friend of Aleta Bell who
lived in the other half of the house at 151 South Wheatland
Avenue. Days before the fire, Leah had moved out of the house.
The two had been involved in a dispute earlier in the summer of
1997, when Aleta Bell accused Leah of forging a driver's license
with Aleta's personal information but with Leah's picture. When
Aleta found the driver's license, she took it back. Leah later broke
into Aleta's home and stole the driver's license. Leah was charged
with and pled guilty to one count of burglary arising from that
incident.
Three days later, on April 27, 2000, Detective Kallay and
Special Agent Ozbolt went to the Southeastern Correctional Institution to talk with appellant again. In a recorded conversation,
appellant again implicated Leah and Kelly in the fire at 151 South
Wheatland Avenue. Following this conversation, the officers
obtained appellant's release on probation so that he would cooperate with them in their investigation. However, appellant failed to
20 

cooperate, leading the officers to believe that appellant had more to
do with the fire than he was admitting. Due to appellant's failure to
cooperate with the investigation and failure to abide by the terms
of his probation, Detective Kallay arrested appellant on June 16,
2000.
State v. Simpson, 2002 WL 1625559, at *2-3. The United States Court of Appeals for the Sixth
Circuit recited the following additional undisputed facts:
The April 24th interview was held in a conference room in the
warden's office. Simpson was pulled from the general prison population and escorted to the warden's office by prison guards. (Appellee's Br. at 16–17.) During the interview, the officers, on the one
hand, accused Simpson of being with Kelly at the time of the incident but, on the other hand, told him that he was not a suspect.
(A63–64, A133.) FN1 The April 27th interview occurred while
Simpson was in the prison's infirmary. (A136–37 (“Q: Okay. And
again, how was that meeting arranged? A: They just came down
there [the infirmary].”).)
Simpson v. Jackson, 615 F.3d at 426-27 (footnote omitted).
The transcript of the hearing on the motion to suppress indicates that Simpson’s April
24th interview lasted approximately one hour and the April 27th interview lasted approximately
thirty minutes. Transcript, Doc. No. 79-1, PageID# 1285. According to police, they did not
consider Petitioner a suspect at that time of either of these discussions, and would have advised
him of his rights under Miranda, had petitioner admitted to his involvement. PageID# 1239-41;
1267. The police were aware of the fact that Simpson had an application for judicial release
pending before the Licking County Court of Common Pleas at the time of his questioning. PageID# 1267. Additionally, a new child had recently been born to his family, and he wanted to see
him/her. PageID# 1267. Police “struck a deal” with him – they would arrange his release if he
would cooperate in their investigation. PageID# 1267-68. The April 27th meeting with Simpson
was “essentially a follow-up” to the meeting of April 24th. PageID# 1268. “We had gone back
down and tried to confirm the fact whether or not he was going to help us get information from
21 

the main suspect, who is Daryl Kelly[.]” PageID# 1241. “The second contact was more to
finalize trying to get him out of prison to help us on the Shenequa Bell homicide[.]” PageID#
1247. Based on the April conversations with Simpson, police arranged to have him released
from prison. PageID# 1248. In return, Simpson was supposed to obtain recorded conversations
from Daryl Kelly regarding the arson. PageID# 1249.
The United States Court of Appeals for the Sixth Circuit held that police unconstitutionally obtained Simpson’s April 2000 statement, because Simpson was “in custody” at the time he
was being questioned, and police failed to advise him of his Miranda rights. The Sixth Circuit
reasoned:
The June statements were preceded by two interrogations in
April, on the 24th and the 27th, during which time Simpson was in
jail for a separate offense. Acting on a tip that Simpson might have
known something about the arson, Detective Kallay and Agent
Ozbolt arranged to meet with Simpson in jail. In his April statements, Simpson denied any involvement at all in the arson. He
claimed, however, to know that “Pumpkin” Kelly and Leah met the
day before the incident. He also claimed that Kelly had called
Simpson to request a ride around the time of the fire and that, when
he picked Kelly up, Kelly was excited and smelled like gasoline.
The officers did not administer Miranda warnings at the outset of
either interview.
Simpson later moved to suppress both April statements due to
the officers' failure to give Miranda warnings. The state court
overruled the motion on the basis that Simpson was not in “custody” under Miranda during the interrogations, so no warnings
were required. At trial, the prosecutor introduced the two statements for the purpose of showing that Simpson had not been
truthful with the police in April. The prosecutor sought to show
that, because Simpson lied to the officers in April by denying
involvement completely, he similarly lied in his June statements
when he admitted to only limited involvement. In other words, the
prosecutor asked the jury to credit Simpson's June statements up to
the point that he implicated himself at all. However, the prosecutor
urged the jury not to credit the June statements insofar as Simpson
minimized his involvement in the arson, and pointed to the April
statements as proof of why the jury should so conclude. The state
22 

appellate court affirmed the trial court's ruling, and it further held
that any error in admitting the evidence was harmless because the
April statements were not inculpatory on their face.
The state court held that, although Simpson was in prison at the
time of the April statements, he was not in custody for purposes of
Miranda and, thus, no warnings were required. In so holding, the
state court cited a string of cases from various circuits, primarily
the Ninth Circuit's decision in Cervantes v. Walker, 589 F.2d 424
(9th Cir.1978), FN7 that have concluded that simply being incarcerated does not, by itself, constitute custody for Miranda purposes. Instead, the question under these cases is whether there has
been a “change in the surroundings of the prisoner which results in
an added imposition on his freedom of movement.” Id. at 428. The
state court's reliance upon this line of circuit cases was contrary to
factually indistinguishable Supreme Court case law, Mathis v.
United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968).
`
FN7. We noted the Cervantes reasoning with approval in dicta
in United States v. Ozuna, 170 F.3d 654, 658 n. 3 (6th Cir.1999).
However, Cervantes deals with a substantially different fact
pattern than this case. There, and in almost every other federal
circuit court case to have applied Cervantes, the prisoner was
being questioned about something that happened in prison. E.g.
Garcia v. Singletary, 13 F.3d 1487, 1490–92 (11th Cir.1994)
(prisoner not in Miranda custody when prison guard responding to
a fire in prisoner's cell asked prisoner “why he set the fire”).
Cervantes actually distinguished Mathis on this basis. 589 F.2d at
427. The only other cases to have applied Cervantes did so to find
that a prisoner who initiated contact with police was not in Miranda custody at the time of the contact. E.g. Leviston v. Black, 843
F.2d 302, 304 (8th Cir. 1988) (prisoner not in Miranda custody
when prisoner called police to discuss a crime). So, while Cervantes may be persuasive in cases involving the questioning of
prisoners about events that occurred in prison or instances of
prisoners initiating contact with police, it is inapposite in cases of
the police initiating an interrogation of a prisoner about a completely different offense or something that happened beyond the
prison walls. Mathis controls in those circumstances.
In Mathis, the Supreme Court addressed the admissibility of
statements given without Miranda warnings in a case, like this one,
in which the individual was in prison serving a sentence on an unrelated state crime. Id. at 2, 88 S.Ct. 1503. The government contended that the statements were admissible because “the petitioner
had not been put in jail by the officers questioning him, but was
23 

there for an entirely separate offense,” id. at 4, 88 S.Ct. 1503, or, in
other words, because the petitioner was not in Miranda custody
during the interviews. The Supreme Court concluded that this
argument was “too minor and shadowy to justify a departure from
the well-considered conclusions of Miranda with reference to
warnings to be given to a person held in custody.” Id. The Court
went on to state that restricting Miranda protections to those that
are in custody for the case under investigation would go “against
the whole purpose of the Miranda decision” and that there was
“nothing in the Miranda opinion which calls for a curtailment of
the warnings to be given persons under interrogation by officers
based on the reason why the person is in custody.” Id. at 4–5. And
to punctuate the matter with clarity, the Court stated:
In speaking of “custody” the language of the Miranda opinion
is clear and unequivocal: “To summarize, we hold that when an
individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to
questioning, the privilege against self-incrimination is jeopardized.”
Id. at 5, 88 S.Ct. 1503 (quoting Miranda, 384 U.S. at 478, 86
S.Ct. 1602). Indeed, in dissent, Justice White objected to the
majority's “cavalier” extension of the definition of Miranda custody. Id. at 7, 88 S.Ct. 1503 (White, J., dissenting).
There is no relevant factual distinction between Mathis and the
circumstances of Simpson's April statements. Quite tellingly, the
state court never cited Mathis. Here, as in Mathis, state agents
unaffiliated with the prison isolated an inmate and questioned him
about an unrelated incident without first giving Miranda warnings.
The Supreme Court ruled that such action was improper and that
any resulting statements must be suppressed. FN8 As there is no
material factual distinction, the April statements were admitted
contrary to Supreme Court precedent.
FN8. We note that the Supreme Court recently made clear that
an inmate in Simpson's situation is in Miranda custody when he is
being questioned by authorities on an unrelated crime. In Maryland
v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010),
the Court addressed the question of when, if ever, may the police
re-initiate contact with a suspect after he has invoked his right to
counsel. Like Simpson, Shatzer was in jail. Officers came to the
and he invoked his right to counsel. The interview ceased and
Shatzer was returned to the prison population. Two and one half
years later, another officer came back to the jail and sought again
24 

to question Shatzer about the crime. This time, he waived his
Miranda rights and made incriminating statements. He later sought
to suppress his statement on the basis that he had never left Miranda custody after the first interview and, thus, police improperly
re-initiated interrogation in violation of Edwards. The Supreme
Court disagreed, holding that there had been a break in Miranda
custody once Shatzer had been returned to the general prison
population.
But, in the process of making this holding, the Supreme Court
stated that “[n]o one questions that Shatzer was in custody for
Miranda purposes during the interviews” with officers while in
jail. 130 S.Ct. at 1224. And in holding that the period of time
between the two interviews, but during which Shatzer remained
incarcerated on the unrelated offense, did not constitute Miranda
custody, the Court stated, “[w]e distinguish the duration of incarceration from the duration of what might be termed interrogative
custody. When a prisoner is removed from the general prison
population and taken to a separate location for questioning, the
duration of that separation is assuredly dependent upon his interrogators” such that the period of “interrogative custody” constitutes Miranda custody. Id. at 1225 n. 8 (emphasis in original).
Though not controlling because Shatzer post-dates the state court's
decision in Simpson's case, it is clear that the Supreme Court
would find that Simpson's April interviews occurred while he was
in Miranda custody.
Simpson v. Jackson, 615 F.3d at 439-442.
The parties do not dispute that Howes applies to the April statements to police. In
Howes, the Supreme Court stated that the determination of a whether a prisoner is “in custody”
as defined under Miranda depends on whether he is under the type of coercive pressure that
Miranda was designed to guard against.
As used in our Miranda case law, “custody” is a term of art that
specifies circumstances that are thought generally to present a
serious danger of coercion. In determining whether a person is in
custody in this sense, the initial step is to ascertain whether, in light
of “the objective circumstances of the interrogation,” Stansbury v.
California, 511 U.S. 318, 322–323, 325, 114 S.Ct. 1526, 128
L.Ed.2d 293 (1994) (per curiam), a “reasonable person [would]
have felt he or she was not at liberty to terminate the interrogation
and leave.” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct.
25 

457, 133 L.Ed.2d 383 (1995). And in order to determine how a
suspect would have “gauge[d]” his “freedom of movement,” courts
must examine “all of the circumstances surrounding the interrogation.” Stansbury, supra, at 322, 325, 114 S.Ct. 1526 (internal
quotation marks omitted). Relevant factors include the location of
the questioning, see Shatzer, supra, at –––– – ––––, 130 S.Ct., at
1223–1226, its duration, see Berkemer v. McCarty, 468 U.S. 420,
437–438, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), statements made
during the interview, see Mathiason, supra, at 495, 97 S.Ct. 711;
Yarborough v. Alvarado, 541 U.S. 652, 665, 124 S.Ct. 2140, 158
L.Ed.2d 938 (2004); Stansbury, supra, at 325, 114 S.Ct. 1526, the
presence or absence of physical restraints during the questioning,
see New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81
L.Ed.2d 550 (1984), and the release of the interviewee at the end
of the questioning, see California v. Beheler, 463 U.S. 1121, 1122–
1123, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam).
Howes, 132 S.Ct. at 1189.
The record reflects that on April 24, 2000, police escorted Simpson to a conference room
within the prison. On April 27, 2000, they spoke to him in the infirmary. The duration of the
questioning on April 24, 2000, lasted approximately one hour. On April 27, 2000, the questioning lasted approximately thirty minutes. Police assured Simpson he was not a suspect in the
crimes, and promised his release from prison if he assisted them in the investigation. The record
does not indicate that he was physically restrained. On April 24th, he was released at the end of
the questioning.
Custodial status is not determined by a prisoner’s incarceration alone, because a person
already serving a prison term is already under a restraint of his freedom and therefore not subject
to the “sharp and ominous change” or coercive pressure against which Miranda is designed to
protect. Howes, 615 F.3d at 1190-91.
“Interrogated suspects who have previously been convicted of
crime live in prison.” Shatzer, 559 U.S., at ––––, 130 S.Ct., at
1224. For a person serving a term of incarceration, we reasoned in
Shatzer, the ordinary restrictions of prison life, while no doubt
unpleasant, are expected and familiar and thus do not involve the
26 

same “inherently compelling pressures” that are often present
when a suspect is yanked from familiar surroundings in the outside
world and subjected to interrogation in a police station. Id., at –––,
130 S.Ct., at 1219.
Id. at 1191. The Court must also consider, however, whether the person being questioned is
likely “to be lured into speaking by a longing for prompt release.” Howes, 615 S.Ct. at 1191
When a person is arrested and taken to a station house for
interrogation, the person who is questioned may be pressured to
speak by the hope that, after doing so, he will be allowed to leave
and go home. On the other hand, when a prisoner is questioned, he
knows that when the questioning ceases, he will remain under
confinement. Id., at ––––, n. 8, 130 S.Ct., at 1224–1225, n. 8.
. . . [A] prisoner, unlike a person who has not been convicted
and sentenced, knows that the law enforcement officers who
question him probably lack the authority to affect the duration of
his sentence. Id., at –––– – ––––, 130 S.Ct., at 1224–1225. And
“where the possibility of parole exists,” the interrogating officers
probably also lack the power to bring about an early release. Ibid.
“When the suspect has no reason to think that the listeners have
official power over him, it should not be assumed that his words
are motivated by the reaction he expects from his listeners.” Perkins, 496 U.S., at 297, 110 S.Ct. 2394. Under such circumstances,
there is little “basis for the assumption that a suspect ... will feel
compelled to speak by the fear of reprisal for remaining silent or in
the hope of [a] more lenient treatment should he confess.” Id., at
296–297, 110 S.Ct. 2394.
Howes, at 1191.
Here, the facts make clear that the officers who questioned Simpson knew of his request and
desire for release, and used the promise of obtaining his early release from prison to pressure him
to cooperate and disclose his knowledge of the crimes charged. In fact, they did obtain his release and later arrested him upon his failure to cooperate as he had agreed. Additionally, unlike
the situation in Howes, where police repeatedly told Howes he was free to leave and return to his
cell, Simpson was not. To the contrary, on April 27, 2000, he apparently was questioned while
in the infirmary, and while the record does not indicate the cause for his placement in the infirm-

27 

ary, it would seem that Simpson may therefore have been unable to free himself from the
questioning of the police. For these reasons, when viewing the impact of Simpson’s April
statements in view of Howe, the Magistrate Judge concludes, that the state court’s decision
denying relief constitutes an unreasonable application of federal law, as defined by the United
States Supreme Court. 28 U.S.C. § 2254(d).
Moreover, and for the reasons addressed by the Court of Appeals, the error is harmless only
as to Simpson’s convictions on the general intent crimes of aggravated arson and five counts of
felonious assault.
This is so because Simpson’s June 16th statement was properly
introduced against him. His admissions in that statement, standing
alone, would be more than adequate to allow a reasonable juror to
convict on the general intent crimes. Simpson, therefore, is not
entitled to relief as to those convictions.
Simpson v. Jackson, 615 F.3d at 445. The same is not the case
as to those convictions that required as an essential element a
specific intent to cause the death of another—aggravated murder,
murder, and attempted murder. This finding is reinforced when the
error in admitting the April statements is combined with the error
in admitting the June 20th statement. When viewed together, these
statements show a person who initially denied any involvement but
who then steadily admitted to more involvement with each subsequent interview. A juror faced with this progression of successive
revelations of deeper involvement would not have very far to extrapolate from Simpson's June 20th admissions to the State's theory
of purpose. Remove the April statements and the June 20th statement, however, and this juror would have to make a rather blind
leap to infer the State's theory of purpose based solely on the June
16th statement.
Id. at 445.
For all of these reasons, the Magistrate Judge concludes that Howes does not alter the
outcome of this case.

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The Magistrate Judge RECOMMENDS that the petition for a writ of habeas corpus be
GRANTED as to petitioner Simpson’s convictions on aggravated murder, murder, and attempted murder, and that these convictions be VACATED subject to the State of Ohio commencing a
re-trial on these charges within 90 days. The Magistrate Judge further RECOMMENDS that
petitioner Simpson’s convictions on his remaining convictions be DENIED and that he be required to serve the remainder of his sentences on those charges.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the
District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
United States v. Walters, 638 F.2d 947 (6th Cir.1981).
The parties are further advised that, if they intend to file an appeal of any adverse decis-

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ion, they may submit arguments in any objections filed, regarding whether a certificate of
appealability should issue.

s/Mark R. Abel
United States Magistrate Judge

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