Fleming v. Metrish
Full Opinion (html_with_citations)
GILMAN, J., delivered the opinion of the court, in which ROGERS, J., joined. CLAY, J. (pp. 537-58), delivered a separate opinion concurring in part and dissenting in part.
OPINION
Stephen Michael Fleming was convicted of second-degree murder and a related firearm offense. He was sentenced to life in prison on the two charges. Fleming then petitioned for state postconviction relief, but was turned down at all levels of the state judiciary. He subsequently sought habeas corpus relief in federal court, arguing that the state trial court erred by denying a motion to suppress his confession and by not allowing him to call a witness who purportedly would have aided his defense. The district court conditionally granted his petition for a writ of habeas corpus. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND the case with instructions to deny Flemingâs petition.
I. BACKGROUND
A. Factual background
Scott York was found dead in the woods of Moffat Township, Michigan on October 21, 1999. York had been shot both in the face and in the back of the head. In early November 1999, Flemingâs brother provided Detective Robert Lesneski with information that led Lesneski to conclude that Fleming was involved in Yorkâs death. Flemingâs brother persuaded Fleming to explain his connection with York to Lesne-ski. Lesneski subsequently arranged a meeting with Fleming.
During the meeting, Fleming told Detective Lesneski that he had picked up a hitchhiker on October 21,1999. The hitchhiker and Fleming proceeded to a store to purchase alcoholic beverages and then left to drink together. Fleming told Lesneski that he later dropped off the hitchhiker somewhere near Sterling, Michigan. Lesneski showed Fleming a photograph of a man and asked whether it depicted the hitchhiker. After Fleming said that it did, Lesneski identified the man in the photo as York.
The police subsequently obtained a search warrant for Flemingâs residence and other buildings on his farm in mid-November 1999. Upon arriving at Flemingâs residence, Detective Lesneski said that Fleming was âvery cooperativeâ and even told the officers about illegal drugs that were located on the property. After finding the drugs, Lesneski approached Fleming to âread him his rightsâ and to ask if Fleming would speak with him. Fleming refused to answer âquestions about that fucking homicide or homosexual activity,â and then said that he was ânot going to be one of the guys that you hear
Approximately one hour later, Fleming was taken from the squad car to a narcotics van to sit with Officer Robert Clayton, where Fleming would sit for roughly two hours. Fleming and Officer Clayton engaged in âsmall talkâ until Detective Lesneski approached the van and smiled. Clayton surmised that something âpositiveâ had happened. Indeed, the police had found the murder weapon and were therefore âquite excited.â
Officer Clayton next told Fleming that things did not look good for him and that âmaybe he needed to do the right thing.â Fleming testified, on the other hand, that Clayton told him that âitâs obviously not a good sign for you,â and that â[i]f you have a chance at anything, ... I would [ ] strongly recommend that you get with the program is my advice.â Clayton denied ever telling Fleming â[t]o get with the program.â There is no dispute, however, that between one and five minutes later Clayton asked whether Fleming wished to speak with Detective Lesneski. Fleming agreed to do so. Shortly thereafter, Lesneski took Claytonâs place in the van.
Detective Lesneski testified that he did not ask any questions or begin an interrogation when he entered the van. He said that Fleming began to weep. Lesneski then moved the van out of view of the other officers who were in the vicinity because Fleming did not want them to see him crying. After Lesneski moved the van, Fleming said that he felt hot and nauseous. Lesneski opened the vanâs doors for Fleming so that he could get some air. After asking for âa couple of minutesâ to âget [his] head straight,â Fleming confessed to Yorkâs murder. Fleming then asked Lesneski whether the police had found the gun. Lesneski replied that they had.
Detective Leskneski maintains that he let Fleming speak without interruption until he was finished. Lesneski said that he then told Fleming the following:
I read you your rights once today, ... and you didnât want to talk to me.... Now I am required by law to read you your rights. I have to protect you. My job is to protect you and I need to do that. I donât want you waking up tomorrow feeling sorry for something you did or didnât say.
Lesneski proceeded to read Fleming his Miranda rights for the second time. Fleming acknowledged that he understood his rights. Lesneski then questioned Fleming about Yorkâs death. In response, Fleming provided âfar more informationâ about the circumstances surrounding the killing. Approximately an hour later, Detective Lesneski tape recorded Flemingâs confession at a police station. Lesneski read Fleming his Miranda rights a third time before recording the statement. The recording was played for the jury at trial.
Fleming offered a different version of the conversation that took place inside the van with Detective Lesneski. According to Fleming, Lesneski initiated the conversation and claimed to have
found a weapon and that it [would] be within my best interests to cooperate. He told me that I did need to â he told me to be careful of what I say, that donât be sorry for â you donât want to be sorry for something you have or havenât said. I donât remember the exact words, but there was a conversation before I hadâ*524 I didnât come right out and say, âYeah, I done it.â
B. Procedural background
Flemingâs counsel filed a pretrial motion to suppress the statements Fleming made to Detective Lesneski. In April 2000, the trial court conducted a so-called Walker hearing, which under Michigan law refers to a âphase of motion practice in which all issues of admissibility of a defendantâs statements are resolved.â People v. Ray, 431 Mich. 260, 430 N.W.2d 626, 631 (1988) (discussing People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965)). Flemingâs counsel framed the issues at stake in the hearing as follows: â[W]e have both questions regarding the right to remain silent and the Fifth Amendment, also got [sic] the right to an attorney. Both of those things were asserted on behalf of the defendant.â The prosecutor framed the issue, in contrast, as ânothing but voluntariness.â Accepting the prosecutorâs statement of the issue, the state trial court held, without explaining why, that â[t]he only issue ... is whether or not [the confession] was voluntary.â
In May 2000, Fleming stood trial in the state court. He maintained that he had killed York in self-defense, thinking that York was going to harm him. In support of this claim, Fleming testified that York bragged about robbing drug dealers and that he had asked Fleming for âa couple hundred dollarsâ to buy crack cocaine. Fleming also claimed that York became furious when he refused, telling Fleming that âI am going to kick your fucking teeth right through your head.â He further alleged that he shot York twice before York hit the ground because York would not stop advancing toward him after Fleming warned him to stop. In addition to his own testimony, Fleming presented two witnesses who said that York had a reputation for being violent. The trial court refused, however, to allow Fleming to call a witness who allegedly saw York rob a drug dealer the week before York was killed.
After exhausting his state-court remedies, Fleming sought a writ of habeas corpus in federal district court, alleging that he was being held in a state prison in violation of his constitutional rights. The district court conditionally granted Flemingâs petition, holding that his Fifth Amendment right to remain silent had been violated and that he was denied his constitutional right to mount a defense because the trial court did not permit Fleming to call a witness who purportedly would have bolstered his self-defense claim. This timely appeal followed.
II. ANALYSIS
A. Standard of review
âIn a habeas corpus appeal, we review the district courtâs legal conclusions de novo, but will not set aside its factual findings unless they are clearly erroneous. The standard for reviewing state-court determinations on habeas, by contrast, is governed by the Antiterrorism and Effective Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254(d).â Ivory v. Jackson, 509 F.3d 284, 291 (6th Cir.2007) (citation omitted). AEDPA provides that a federal court
may not grant a writ of habeas to a petitioner in state custody with respect to any claim adjudicated on the merits in state court unless (1) the state courtâs decision âwas contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Courtâ or (2) the state courtâs decision âwas based on an unreasonable determination of the facts in*525 light of the evidence presented in the State court proceedings.â
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002) (quoting 28 U.S.C. § 2254(d)) (citation omitted).
A state-court decision is considered âcontrary to ... clearly established federal lawâ if the two are âdiametrically different, opposite in character or nature, or mutually opposed.â Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal quotation marks omitted). Alternatively, to be deemed an âunreasonable application of ... clearly established Federal law,â a state-court decision on the merits must be âobjectively unreasonable,â not simply erroneous or incorrect. Id. at 409-11, 120 S.Ct. 1495. The state courtâs findings of fact are presumed to be correct unless they are rebutted by clear and convincing evidence. Benge v. Johnson, 474 F.3d 236, 241 (6th Cir.2007).
B. Alleged Fifth Amendment violation
1. Procedural default
The district court held that the Michigan Court of Appeals unreasonably applied Supreme Court precedent in concluding that Flemingâs Fifth Amendment right to remain silent was not violated during the investigation of Yorkâs murder. As a threshold matter, however, the state argues that the district court should not have even reached the issue because the same was proeedurally defaulted. But the stateâs counsel, according to the district court, âacknowledged at oral argument [that] the issue had been raised in state court.â
The state nevertheless argues that the Fifth Amendment issue was not properly raised during the pretrial Walker hearing because, according to the state, the sole purpose of such hearings is to address whether a particular confession was provided voluntarily. Fleming responds that, even if the Michigan courts originally created Walker hearings to assess voluntariness, âthe profession [came] to use the term[ ] Walker hearingâ to refer to that phase of motion practice in which all issues of admissibility of a defendantâs statements are resolved.â See People v. Ray, 431 Mich. 260, 430 N.W.2d 626, 631 (1988).
We find no error in the district courtâs adoption of Flemingâs persuasive response regarding the scope of a Walker hearing. Moreover, the stateâs concession that the Miranda issue âhad been raised in state courtâ negates a finding of procedural default. We therefore turn to the merits of Flemingâs Fifth Amendment Miranda claim.
2. Admissibility of Flemingâs confession
Under Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), law enforcement officers must cease questioning a suspect who invokes his right to remain silent or to have an attorney present. This does not mean that statements obtained after a suspect invokes that right are necessarily inadmissible in all cases. Instead, âthe admissibility of statements obtained after the person in custody has decided to remain silent depends ... on whether his âright to cut off questioningâ was âscrupulously honored.â â Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
We disagree with the district courtâs conclusion that the Michigan Court of Appeals unreasonably applied Mosley. The district courtâs analysis turned on its determination that Officer Clayton âinterrogatedâ Fleming while he was in custody. We will therefore address the issue of whether there was an interrogation before turning to the Michigan Court of Appealsâs application of Mosley.
In Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Supreme Court defined the term âinterrogationâ in the Miranda context as follows:
âInterrogation,â as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term âinterrogationâ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.... But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.
Id. at 300-02, 100 S.Ct. 1682 (emphasis in original). Police officers placed Innis under arrest, advised him of his Miranda rights, and took him to a police station in a patrol car. Innis, 446 U.S. at 293-94, 100 S.Ct. 1682. âThe respondent stated that he understood [his Miranda] rights and wanted to speak with a lawyer.â Id. at 294, 100 S.Ct. 1682. While in the car, however, the officers began to speak to each other about the murder weapon, which they had not yet located. Id. at 294, 100 S.Ct. 1682. One of the officers testified as follows:
I was talking back and forth with [a second police officer] stating that I frequent this area while on patrol and [that because a school for handicapped children is located nearby,] thereâs a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves.
Id. at 294-95, 100 S.Ct. 1682 (second alteration in original).
The second officer âapparently shared his fellow officerâs concern,â indicating that he âmore or less concurred with [the first officer] that it was a safety factor and that we should, you know, continue to search for the weapon and try to find it.â Id. at 295, 100 S.Ct. 1682. Sometime during the course of this discussion, Innis âinterrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located.... The respondent then led the police to a nearby field, where he pointed out the shotgun under some rocks by the side of the road.â Id.
After considering the above facts, the Supreme Court held that the officersâ conversation was not reasonably likely to elicit an incriminating response. Id. at 302, 100 S.Ct. 1682. The court noted that nothing in the record indicated that the suspect was âpeculiarly susceptible to an appeal to his conscience,â and further elaborated that
[t]he case thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few off hand remarks, we cannot say that the officers should have known that it was reasonably likely that [the suspect] would so respond. This is*527 not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondentâs contention that, under the circumstances, the officersâ comments were particularly âevocative.â It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.
Id. at 302-03, 100 S.Ct. 1682.
In the case before us, the Michigan Court of Appeals similarly concluded that Officer Claytonâs brief remarks did not constitute an interrogation within the meaning of Miranda. Accepting Flemingâs account of the events as true, the Michigan court characterized Officer Claytonâs comments as â(i) a mild admonition to âdo the right thingâ or âget with the programâ; and (ii) an inquiry as to whether [Fleming] now wished to talk to the lead investigating officer.â The court stated:
As to (i), given the defendantâs repeated denials of involvement in the instant offense, as well as his general familiarity with the justice system, we are not convinced that these comments were âreasonably likely to elicit an incriminating response,â as necessary to constitute an interrogation. In regard to (ii), we have also recognized that it is appropriate to present new information to an individual so that âan informed an intelligent assessmentâ of his or her options may be made.
We find nothing unreasonable about the Michigan appellate courtâs application of the interrogation standard set forth in In-nis. The record reasonably supports a finding that Fleming was not subject to âa measure of compulsion above and beyond that inherent in custody itself.â See Innis, 446 U.S. at 300, 100 S.Ct. 1682. Nor is this a case âwhere the police carried on a lengthy harangue in the presence of the suspect.â See id. at 303, 100 S.Ct. 1682. There is no evidence, moreover, indicating that Fleming was âpeculiarly susceptible to an appeal to his conscience.â See id. Instead, just as in Innis, Officer Claytonâs comments involved a âbrief conversationâ that including nothing more than âa few off hand remarksâ that were not âparticularly âevocative.â â See id.
We recognize that Innis is arguably distinguishable on the basis that the conversation in Innis occurred between two police officers, and was not directed toward the suspect himself. See id. at 294-95, 100 S.Ct. 1682. Officer Claytonâs brief remarks were, in contrast, clearly aimed at Fleming. Such a distinction might be significant if an officerâs brief remarks morphed into, for example, a âlengthy harangueâ because, other things being equal, extended comments directed toward a suspect are more likely to elicit an incriminating response. But this court has previously rejected a constitutional challenge to cursory comments aimed at a suspect in an analogous context. See United States v. Hurst, 228 F.3d 751, 760 (6th Cir.2000) (holding that âthe mere statement by [a law-enforcement official] that âweâve got good information on you,â viewed in context, contains no compulsive element suggesting a Fifth Amendment violation under the circumstances.â).
There are strong arguments both for and against construing Officer Claytonâs comments as an interrogation. Indeed, were Flemingâs appeal a direct one to be reviewed de novo, the possibility exists that we might have agreed with Flemingâs position. But the fact that a federal court might disagree with the Michigan Court of Appealsâs application of Innis does not justify the conclusion that the Michigan court unreasonably applied the Supreme
Finally, we note that Fleming disputed Detective Lesneskiâs account of the in-van interview that took place after Officer Claytonâs remarks. Although Lesneski claimed that he said nothing material to Fleming when Lesneski entered the van, Fleming asserts that Lesneski encouraged him to cooperate. The state trial court failed to resolve this factual dispute. But even if Flemingâs version of the events is assumed to be true, we would still not conclude that the Michigan Court of Appeals unreasonably applied Mosley. We will explain why in the course of the discussion immediately below.
b. Whether the Michigan Court of Appeals unreasonably applied Mosley
The district courtâs finding that Officer Clayton interrogated Fleming fueled its analysis of Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and, in turn, its conclusion that the Michigan Court of Appeals unreasonably applied that case. In Mosley, the Supreme Court discussed the circumstances under which a police officer may resume questioning a suspect who has previously exercised the right to remain silent under Miranda. The Court held that, when a defendant invokes the right to remain silent, the officers have the duty to immediately cease questioning under Miranda. But the Court sought to avoid two extreme interpretations of that obligation:
To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.
Mosley, 423 U.S. at 102, 96 S.Ct. 321. Seeking to avoid these extremes, the Court adopted the following standard: â[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his âright to cut off questioningâ was âscrupulously honored.ââ Id. at 104, 96 S.Ct. 321.
The Supreme Court did not adopt a bright-line rule for determining whether law enforcement officials have satisfied this standard. But the Court did provide guidance on the issue by explaining that the police âfail[ ] to honor a decision of a person in custody to cut off questioning,
In holding that Flemingâs confession was admissible under Mosley, the Michigan Court of Appeals emphasized that there was no evidence indicating that the police endeavored to âwear down [Flemingâs] resistance and make him change his mind.â See Mosley 423 U.S. at 105, 96 S.Ct. 321. Although Fleming confessed before receiving a fresh set of Miranda warnings, the Michigan courtâs conclusion was premised upon its finding that the police did not actually interrogate Fleming a second time before he voluntarily chose to confess.
But the district court disagreed. In contrast to the state courtâs opinion, which emphasized that the police officers did nothing to âwear downâ Flemingâs resistance, the district court emphasized other Mosley factors. The district court did not think that the police waited long enough before âquestioningâ Fleming a second time about the murder (even though the purported questioning of Fleming by Officer Clayton occurred three hours later). It also observed that Fleming did not receive fresh Miranda warnings before Clayton made his comment that Fleming should âdo the right thing,â or before Clayton allegedly told Fleming to âget with the programâ (which assumes, contrary to the reasonable determination of the Michigan Court of Appeals, that these comments constituted an âinterrogationâ that should have been accompanied with new warnings). The district court noted that the purported interrogation concerned the same crime that was the subject of the earlier interrogation (a factor that indeed favors Fleming under Mosley). Its application of these factors led the district court to conclude that the Michigan Court of Appeals unreasonably applied Mosley.
In conducting its analysis under Mosley, the district court apparently assumed that Detective Lesneski did not encourage Fleming to cooperate. The district courtâs opinion in fact contains no discussion of Lesneskiâs alleged comments. Nor did Fleming seek to resolve the factual dispute by requesting a hearing on the matter. See 28 U.S.C. § 2254(e) (stating the conditions under which federal courts are permitted to hold hearings on factual disputes in state-court habeas proceedings).
In addition to assuming that Officer Clayton interrogated Fleming a second time before Fleming voluntarily confessed, and that Detective Lesneski did not encourage Fleming to cooperate, the district court failed to explain why the state courtâs ultimate conclusion â that the officers scrupulously honored Flemingâs right to remain silent where there was no evidence that they tried to âwear downâ Flemingâs resistance â was contrary to Mosley. As previously noted, âMosley
The fact that the district court reached a contrary outcome after emphasizing different Mosley factors than those relied on by the Michigan Court of Appeals does not suffice to justify the granting of a habeas petition pursuant to AEDPA, especially in light of our conclusion that the state courtâs determination regarding a lack of interrogation by Officer Clayton was not objectively unreasonable. See Hereford, 536 F.3d at 528. In sum, despite the closeness of the question on the merits, we are of the opinion that the Michigan Court of Appealsâs decision on this issue was not an unreasonable application of Miranda, Innis, or Mosley.
Our dissenting colleague, on the other hand, believes that the Michigan Court of Appealsâs plain-error review of the claim is not entitled to AEDPA deference because such a review does not amount to consideration âon the meritsâ for purposes of 28 U.S.C. § 2254(d). We respectfully disagree for two reasons.
First, none of the cases cited by the dissent decide the question of whether a claim reviewed for plain error by a state court dispenses with our obligation to apply AEDPA deference to the merits of the decision reached by that court. They instead discuss the analytically prior question of whether a federal court is permitted to hear an issue in the first place under the doctrine of procedural default. See, e.g., Jells v. Mitchell, 538 F.3d 478, 511 (6th Cir.2008) (holding that a claim not raised before the Ohio Court of Appeals was proeedurally defaulted even though the Ohio Supreme Court reviewed the claim for plain error on direct appeal); Lundgren v. Mitchell, 440 F.3d 754, 765 (6th Cir.2006) (holding that âa state courtâs plain error analysis does not save a petitioner from procedural defaultâ); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.2000) (holding that habeas petitioners cannot resurrect proeedurally defaulted claims on the sole basis that a state court has applied plain-error review to the issue on direct appeal). We of course agree with these cases to the extent that they stand for the well-established rule that a state courtâs application of plain-error review does not revive a habeas petitionerâs otherwise proeedurally defaulted claim on collateral review. But we disagree with our colleagueâs view that they control not only this courtâs ability to address a habeas petitionerâs claim, but also the appropriate standard of review to apply once we have determined that the claim is reviewable on the merits.
Second, the question of whether a claim should be addressed on collateral review under the judicially created doctrine of procedural default is independent of the question of whether Congress requires deference pursuant to AEDPA. This court declines to review proeedurally defaulted claims out of respect for state-court enforcement of state procedural rules. Clinkscale v. Carter, 375 F.3d 430, 441 (6th Cir.2004) (citing Coleman v. Thompson, 501 U.S. 722, 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)) (observing
This courtâs decisions in Maples v. Ste-gall, 340 F.3d 433 (6th Cir.2003), and Danner v. Motley, 448 F.8d 372 (6th Cir.2006), are instructive on this point. In Maples, this court followed the Supreme Courtâs lead in Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), in holding that, to the extent that no state court had decided the claim in question, the claim would be subject to de novo review. Maples, 340 F.3d at 437. AEDPA deference was deemed inappropriate in Maples because the Michigan courts simply declined to evaluate the merits of the petitionerâs federal ineffective-assistance-of-counsel claim at all. See id. at 435-36; see also People v. Maples, No. 196975, 1997 WL 33339368, *1 (Mich.Ct.App. Nov.4, 1997), aff'd, People v. Maples, 459 Mich. 867, 584 N.W.2d 738 (1998).
In the total absence of any such evaluation, there was no need in Maples to specify the precise form of analysis would suffice to constitute an adjudication on the merits of a claim under AEDPA. See Maples, 340 F.3d at 437. But Danner, 448 F.3d at 376, provides further clues, indicating that federal courts will not apply AED-PA deference to a state courtâs adjudication if the state court âconfined its analysis ... to state lawâ or failed to examine applicable constitutional law. Id. Both Maples and Danner therefore focus on the legal reasoning provided by the state court in disposing of a claim to determine whether AEDPA applies' â not the standard of review through which that claim is viewed. And both clearly imply that AEDPA deference would apply if the state court conducts any reasoned elaboration of an issue under federal law.
This courtâs decision in Benge v. Johnson, 474 F.3d 236 (6th Cir.2007), is not to the contrary. In Benge, a jury instruction was held to be erroneous under state law, but not plainly so, by the Ohio Supreme Court. Id. at 245-46. On that basis the state appellate court declined to reverse the defendantâs conviction. Id. The habeas petitioner claimed, on collateral review, that his counsel was constitutionally ineffective for failing to object to the instruction during trial. Id. at 246. This court reviewed the ineffective-assistance claim de novo because the question of whether the jury instruction was plainly erroneous, as determined by the Ohio Supreme Court under purely state law, could not serve as a substitute for the entirely different inquiry of whether the petitionerâs trial counsel had been constitutionally ineffective for failing to object to the instruction in the first place. See id. But Benge does not demonstrate, as the dissent suggests, that the state courtâs application of plain-error review per se insulates the claim from AEDPA deference. Instead, this court declined to defer in Benge because the state court did not provide a âreasoned adjudicationâ of the federal ineffective-assistance-of-counsel claim at issue. See id. at 247.
The case before us is not like Benge or Maples. There is little question that
Nor are we persuaded by our dissenting colleagueâs distinction between federal constitutional issues that a state court âmerely addressesâ on the merits and those that are â âadjudicatedâ on the merits.â (Dissenting Op. p. 538) This appears to us to be a distinction without a difference. See Dando v. Yukins, 461 F.3d 791, 796 (6th Cir.2006) (âWhere a state court fails to address federal law, § 2254 does not apply, and the decision is reviewed de novo,â which clearly implies that AEDPA deference would have applied if the state court had addressed the claim). Furthermore, the first step of the Michigan Court of Appealsâs plain-error review essentially required addressing whether an error had occurred â an inquiry which, in this case, could not be accomplished without first adjudicating the merits of Flemingâs claim. This is not a ease where the state court simply assumed, without deciding, that there was a constitutional error and then proceeded to determine that the error was not plain. To the contrary, the case before us is one where plain-error review itself played no practical role in the resolution of Flemingâs Fifth Amendment claim at the state level.
The heart of the disagreement between ourselves and our dissenting colleague thus boils down to whether a federal constitutional claim reviewed by a state court for âplain errorâ can be considered âadjudicated on the meritsâ for the purpose of receiving deference under AEDPA. To our knowledge, there is no authority squarely on point that decides this key question. We are persuaded, however, that we would be acting contrary to Congressâs intent to have AEDPA âfurther the principles of comity, finality, and federalism,â Williams, 529 U.S. at 436, 120 S.Ct. 1479, if we simply ignored the Michigan Court of Appealsâs evaluation of Flemingâs Fifth Amendment claim by reconsidering the issue de novo. In sum, we see no inherent contradiction in applying AEDPA deference to the Michigan Court of Appealsâs reasoning on the merits of Flemingâs claim despite our disagreement with its ruling that the issue was proeedurally defaulted. The state courtâs substantive reasoning does not simply vanish along with its erroneous procedural-default determination. Nor does AEDPA.
We therefore believe that the dissentâs de novo analysis of Flemingâs Fifth Amendment claim is inappropriate, and we further disagree with its conclusory statements to the effect that Officer Claytonâs brief comments (or even Detective Lesne-skiâs alleged encouragement to cooperate) âdemonstrate a persistent and not-so-subtle effort to persuade Fleming to discuss the homicide.â (Dissenting Op. at 554) The facts before us are simply far removed from cases like Thompkins v. Berghuis, 547 F.3d 572 (6th Cir.2008), where the police were found to have engaged in an interrogation that failed to scrupulously honor the suspectâs Miranda rights. See
Detective Lesneskiâs alleged comments are similarly not inconsistent with Mosley, a case that provides no set formula for determining whether the police have scrupulously honored a suspectâs right to remain silent. See Mosley, 423 U.S. at 104, 96 S.Ct. 321. Mosley permits the police, as Fleming acknowledges in his brief, to present new information to a suspect so that he is able âto make informed and intelligent assessments of [his] interests.â See id. at 102, 96 S.Ct. 321. Detective Lesneskiâs alleged comments did precisely this: he disclosed to Fleming that the police had discovered a weapon on the premises, which permitted Fleming to reassess his situation. True, Lesneskiâs alleged comments included a suggestion to âcooperate.â But this suggestion was accompanied by â again, according to Fleming himself â a warning to Fleming âto be carefulâ about what he said, and a caution not to say anything about which he would be âsorry.â No doubt a complete and fresh recitation of the Miranda warnings would have been preferable to these shorthand reminders. But in the context of this case, where there is no dispute that Fleming fully understood his Miranda rights, such cautionary language bolsters the view that those rights were scrupulously honored under Mosley.
C. Flemingâs constitutional right to present a defense
We now turn to Flemingâs alternative habeas claim regarding the exclusion of Scott Fowlerâs testimony as a defense witness. The state trial court expressly refused to consider Flemingâs Sixth and Fourteenth Amendment claims relating to his right to mount a defense because it considered the issue to be one of state evidentiary law. We therefore review de novo Flemingâs right-to-present-a-defense claim. See Danner v. Motley, 448 F.3d 372, 376 (6th Cir.2006) (utilizing the de novo standard of review where the state court failed to consider the habeas petitionerâs constitutional claim).
1. Relevant state and federal court proceedings
At trial, Fleming presented evidence showing that he killed York in self defense. Michigan law required Fleming to show that he honestly and reasonably believed that he was in danger of serious bodily harm or death at the hands of York. See People v. Heflin, 434 Mich. 482, 456 N.W.2d 10, 18 (1990). Fleming testified that he believed York was going to kill him because York had previously bragged about robbing drug dealers. He also called two witnesses who stated that York had a reputation for violence.
Fleming further tendered Fowler as a witness because Fowler allegedly saw York rob a crack cocaine dealer the week before Yorkâs murder. The Michigan trial court refused to allow Fowler to testify because the court deemed the evidence to be irrelevant, or so nearly irrelevant that, under Rule 403 of the Michigan Rules of Evidence, the prejudicial effect of such evidence substantially outweighed its probative value. On appeal, the Michigan Court of Appeals affirmed the judgment of the state trial court because it agreed that the testimony of the excluded witness was likely irrelevant. The state appellate court held that the witnessâs testimony would not have been relevant to Flemingâs self-defense theory because â[i]f evidence is
To the extent that the witnessâs testimony served to establish character evidence of Yorkâs propensity for violence, the Michigan Court of Appeals also held that such testimony would only have been allowed in the form of âtestimony as to reputation or by testimony in the form of an opinion.â See Mich. R. Evid. 404(a)(2) and 405(a). The state appellate court noted, moreover, that Fleming had already presented the testimony of two witnesses regarding Yorkâs reputation for violence. This led the Michigan Court of Appeals to conclude that the trial court had not abused its discretion.
The federal district court took issue with the Michigan Court of Appealsâs âfailure ... to recognize the Constitutional dimension of the [trial courtâs] error,â and considered this purported error to be âan unreasonable application of federal law.â Quoting Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), the court observed that â[t]he right to offer testimony is ... grounded in the Sixth Amendment even though it is not expressly described in so many words.â
2. Merits of the claim
Fleming argues that the Michigan trial court erred in excluding Fowlerâs testimony on the basis of relevancy. And even if the court did not err as a matter of state law, Fleming maintains that the exclusion nonetheless violated his constitutional right to present witnesses in his own defense. The district court agreed. We respectfully disagree.
â[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense, including the right to present relevant evidence ... subject to reasonable restrictions.â Varner v. Stovall, 500 F.3d 491, 499 (6th Cir.2007) (citations and internal quotation marks omitted) (alterations in original). This court, however, has also stated that â[i]t is well settled that the Constitution does not guarantee a defendant the opportunity to present any evidence he desires.â Alley v. Bell, 307 F.3d 380, 396 (6th Cir.2002). Indeed, â[o]nly if an evidentiary ruling is so egregious that it results in a denial of fundamental fairness [does] it ... violate due process and thus warrant habe-as relief.â Baze v. Parker, 371 F.3d 310, 324 (6th Cir.2004) (internal quotation marks omitted) (alterations in original). Issues of state law, however, are ordinarily not properly subjected to collateral review. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (â[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.â).
Fleming argues that the Michigan trial court erred in finding that Fowlerâs testimony was irrelevant and duplicative. As to relevancy, Fowler would have testified
Fleming also contends that Fowlerâs testimony did not duplicate the testimony of the two witnesses who testified that York was prone to violence. Instead, Fowlerâs testimony would have arguably added credibility to Flemingâs account of the specific events leading up to Yorkâs death. Fleming contends that the Michigan Court of Appeals therefore erred in excluding Fowlerâs testimony.
Despite the initial plausibility of these arguments, they essentially address issues of Michigan evidentiary law that are not as such subject to collateral review. See Estelle, 502 U.S. at 67-68, 112 S.Ct. 475. Fleming therefore faces an uphill battle in characterizing his evidentiary concerns as constitutional in nature. In particular, Fleming must show that the state trial courtâs evidentiary ruling was âso egregiousâ that it effectively denied Fleming a fair trial. See Baze, 371 F.3d at 324. Fleming has not met this burden.
In support of his contention that the state trial courtâs evidentiary ruling raises constitutional concerns, Fleming cites two cases: Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Fleming argues that these cases support the proposition that â[t]he right to present a defense is so fundamental that defense evidence must sometimes be allowed even though it technically violates an evidentia-ry rule.â Even assuming the accuracy of this broad proposition, neither ease supports Flemingâs conclusion that the trial courtâs ruling violated his constitutional rights.
In Chambers, the state trial court permitted the defendant, who was accused of murder, to call as a witness someone who initially confessed to the murder but later repudiated his own confession and claimed to have an alibi. Id. at 291, 93 S.Ct. 1038. But the defendant was âdenied an opportunity to subject [the witnessâs] damning repudiation and alibi to cross-examinationâ based on the state courtâs rigid application of the so-called âvoucher ruleâ that prevents a party from impeaching the credibility of his own witness. Id. at 295-98, 93 S.Ct. 1038. The trial court also refused to allow other witnesses to testify that they had heard someone else confess to the murder because the court concluded that such testimony would be inadmissible hearsay. Id. at 298, 93 S.Ct. 1038. These two factors together were held to constitute reversible error on habeas corpus review. Id. at 302, 93 S.Ct. 1038.
Washington v. Texas involved an eyewitness to a shooting who was excluded as a defense witness because he was allegedly an accomplice to the same shooting. In concluding that this witness was unconstitutionally excluded, the Supreme Court directed its attention to the nature of the evidentiary rule the state court used to exclude the witness:
The rule disqualifying an alleged accomplice from testifying on behalf of the defendant cannot even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury. The absurdity*536 of the rule is amply demonstrated by the exceptions that have been made to it.
Washington, 388 U.S. at 22, 87 S.Ct. 1920. As a result, the Supreme Court held that
the petitioner ... was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.
The evidentiary rulings in Chambers and Washington are simply not on par with the exclusion at issue here. Unlike the witnesses who were excluded in Chambers, Fowler was not prepared to testify that he had overheard someone claiming to have seen Yorkâs killing. Nor was Fowler himself an eyewitness at the scene. Finally, the Michigan trial court did not rely on an evidentiary rule that irrationally excludes an entire category of witnesses from testifying on behalf of defendants, as in Washington.
Fleming might have had a stronger claim if, for example, he had been completely barred from presenting any witnesses to corroborate his contention that York was known to be violent. But that is not the case here. Fleming has failed to provide any persuasive reason why the Michigan trial courtâs evidentiary ruling was âso egregious that it results in a denial of fundamental fairness ... and thus warranties] habeas relief.â See Baze, 371 F.3d at 324. The district court therefore erred in granting Flemingâs petition for a writ of habeas corpus on the basis of a purported violation of his right to present a defense.
3. Harmless error
Moreover, even if the state trial courtâs ruling had violated Flemingâs constitutional right to present a defense, that constitutional error would be harmless. To determine whether an error is harmless on collateral review, âwe ask whether the error âhad [a] substantial and injurious effect or influence in determining the juryâs verdict.â â Hereford v. Warren, 536 F.3d 523, 528 (6th Cir.2008) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).
The district court held that the purportedly unconstitutional exclusion of Fowlerâs testimony was not harmless because the exclusion âallowed the prosecutor to argue [that Flemingâs] testimony of fear of Scott York was not corroborated.â We respectfully disagree with the district courtâs analysis because there is no indication that barring Fowler had a substantial and injurious effect on the juryâs finding that Fleming was guilty. As the Michigan Court of Appeals observed:
[D]efendantâs testimony was damaging to his claim of self-defense, suggesting that, even if the proposed testimony was erroneously excluded, the error was harmless. For example, defendant testified that he had an opportunity to drive âprobably sixty yardsâ away from the victim, before turning around to attempt to pacify the victim. Moreover, defendant[âs] testimony[ ] established that the victim approached him menacingly at a âsteady walkâ; however, defendant testified that he had sufficient time to retrieve his shotgun from his truck, load the shotgun with bullets that were in his pocket, and then warn the victim to stop at least twice before shooting him. Although defendant claimed that the shooting was âself-defense,â he testified that he shot the victim twice. Further, defendant testified*537 that the victim was not armed with any weapons as he approached the defendant; nevertheless, defendant testified that he shot the victim in the face and head. In light of the defendantâs testimony, we believe that there was an ample basis for the jury to conclude that defendantâs use of deadly force was unreasonable, regardless of the victimâs history of robbing crack dealers or defendantâs honest belief that those stories were true.
The district court simply failed to consider the Michigan Court of Appealsâs harmless-error analysis, an analysis that we find persuasive. We would elaborate on only one detail. Not only was York shot twice, but one of those shots entered Yorkâs skull in the back of his head. A reasonable jury could easily conclude that shooting someone in the back of the head is inconsistent with a claim of self defense. In sum, even if excluding Fowler as a witness was a constitutional error, it was a harmless one because there is no indication that the error had a substantial and injurious effect or influence in determining the juryâs verdict.
III. CONCLUSION
For all of the reasons set forth above, we REVERSE the judgment of the district court and REMAND the case with instructions to deny Flemingâs petition for a writ of habeas corpus.