Traci Lynette McCALVIN, Petitioner-Appellee, v. Joan YUKINS, Warden, Respondent-Appellant, 444 F.3d 713

ROGERS, J., delivered the opinion of the court, in which GIBBONS, J., joined. COLE, J. (pp. 722 - 725), delivered a separate dissenting opinion. OPINION ROGERS, Circuit Judge. At issue in this habeas case is the voluntariness of Traci L. McCalvin’s confession. McCalvin was convicted of second-degree murder. During her trial, McCalvin moved to suppress her confession, but the trial court denied the motion as untimely because under Michigan law such motions generally must be filed before trial unless special circumstances are present.

The district court granted MeCalvin a writ of habeas corpus, ruling that there existed cause and prejudice sufficient to excuse her procedural default because she had established that her counsel rendered ineffective assistance by failing to file the motion to suppress before trial. The district court then found McCalvin’s confession involuntary because, among other things, a detective told MeCalvin that, if she were convicted of first-degree murder, she would not have contact with her family, including her children. We reverse. I.

Around midnight on February 14, 1998, MeCalvin visited the home of Lidell Smith, her former boyfriend and the father of her son. Smith and MeCalvin talked in Smith’s driveway for approximately 35-40 minutes. MeCalvin got into her car to leave, however, when Markecia Branch, Smith’s current girlfriend, walked out of the house. As Branch stood on Smith’s lawn, McCalvin’s car pulled forward and hit her. Branch became trapped under the car and died. Police officers escorted MeCalvin to the police station around 1:30 a.m. Officers informed MeCalvin of her Miranda rights, and MeCalvin signed a waiver form.

MeCalvin stated that she had no medical problems, was not under the influence of alcohol or drugs, and understood English. MeCalvin was twenty-seven years old and had never been in jail before. She was a high school graduate. Between approximately 5:00 a.m. and 7:30 a.m., Detectives Palmer and Shadwell interrogated MeCalvin. The interrogation began with MeCalvin giving her version of how Branch died. MeCalvin told the detectives that Branch’s death was an accident. MeCalvin stated that she had only attempted to back her car out of Smith’s driveway.

She thought that she put the car into reverse, but instead she accidentally put it into drive. When MeCalvin pressed the gas pedal, her car lunged forward and hit Branch. After the first forty-five minutes of the interrogation, the detectives allowed MeCalvin a twenty-minute break. MeCalvin drank coffee. When the interrogation resumed, the detectives had MeCalvin repeat her story. During this portion of the interrogation, the detectives permitted MeCalvin to take several breaks. MeCalvin was able to use the restroom and call her mother.

Before ending the interrogation, the detectives had MeCalvin write down her version of what happened that night. McCalvin’s story never changed during this stage of the interrogation. Detective Helgert then took over the interrogation for approximately the next one and one-half hours. MeCalvin declined any food, coffee, or water. For the first thirty to forty-five minutes, MeCalvin continued to maintain that Branch’s death was an accident. During this time, however, Helgert became more confrontational. He told MeCalvin that the officers did not believe her.

He gave her a “hook,” a question that aims to get a defendant to admit to a crime while simultaneously shifting the blame away, by asking McCalvin if she had merely tried to scare Branch by driving towards her. MeCalvin testified at her trial that Helgert told her.that if she changed her story, the prosecutor might drop the charges. She also testified that Helgert told her that she could go home if she changed her story to say that she had intended to only scare Branch.

Helgert never admitted to promising MeCalvin anything, see J.A. at 648-49, but he testified that he told MeCalvin that if she went to prison for first-degree murder, she would spend the rest of her life in prison and would not have contact with her family, including her children, J.A. at 613-15. According to Helgert, McCalvin suddenly looked at him and said, “I did it.” McCalvin stated that she drove her car towards Branch to scare her. Helgert then reduced McCalvin’s admissions to written questions and answers. According to Helgert, he never threatened McCalvin or told her what to write.

He maintained that McCalvin was “quite unemotional” during the interrogation. Before the interrogation ended at approximately 10:00 a.m., McCalvin had not asked for the interrogation to stop. II. McCalvin was charged with first-degree murder, and a jury trial began in September 1998. After Detective Palmer, Detective Helgert, and McCalvin testified, the defense moved to suppress MeCalvin’s confession on the ground that it was coerced and therefore involuntary.

Defense counsel explained at the time why he had not made such a motion earlier: he had made a “calculated decision” not to file a motion to suppress before the trial for two reasons. First, he did not want Helgert “to gather his forces ... and to respond to the inquiry regarding the voluntariness of the confession in a manner other than he would if confronted by a jury.” Second, because of the judge’s “conservative” nature, he had thought that a pre-trial motion to suppress would not have been successful. The trial court denied McCalvin’s motion to suppress.

The court gave four reasons for its denial: (1) the court did not want to declare a mistrial; (2) defense counsel’s cross-examination of Helgert was “very effective;” (3) defense counsel spent so much time on the issue of the confession that a curative instruction would have been futile; and

(4) McCalvin waived the issue by failing to raise it before trial. The jury convicted McCalvin of second-degree murder, and the court sentenced her to fifteen to thirty years of imprisonment. McCalvin appealed her conviction, arguing that the trial court erred in refusing to suppress her confession, and, if her trial counsel was deemed to have waived the right to file a motion to suppress, that waiver amounted to ineffective assistance of counsel. The Michigan Court of Appeals nevertheless affirmed her conviction. People v. McCalvin, No. 215150, 2000 WL 33385191, at *4 (Mich.Ct.App. Dec.26, 2000).

The court of appeals held that, under Michigan law, no special circumstances justified defense counsel’s delay in bringing the motion to suppress. Id. at *1. The trial court thus did not abuse its discretion in denying McCalvin’s motion. Id. In the alternative, the Michigan Court of Appeals held that the trial court’s denial was not plain error because McCalvin had made her statement voluntarily. Id. at *3.

The court based this decision on the totality of the circumstances surrounding McCalvin’s confession, noting that McCalvin signed a Miranda waiver; McCalvin was of sufficient maturity to understand her rights because she was in her mid-twenties, a high school graduate, not ill or injured, and not under the influence of alcohol or drugs; the police did not question McCalvin for an inordinate amount of time; McCalvin received several breaks during the interrogations; the police offered McCalvin food and drink; and Helgert testified that McCalvin was unemotional during the interrogation.

In addition, the court held that McCalvin’s interrogation differed from the interrogation deemed coercive in Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), where police explicitly told the defendant that her children would be taken from her if she did not cooperate. McCalvin, 2000 WL 33385191, at *2. Unlike in Lynumn, Helgert admitted only to discussing the consequences of a first-degree murder conviction. Id. Finally, the Michigan Court of Appeals held that McCalvin’s trial counsel had not rendered ineffective assistance of counsel. Id. at *4.

Counsel’s decision to wait to bring a motion to suppress was not objectively unreasonable because the decision constituted a trial strategy and such a strategy was reasonable as a pre-trial motion likely would have been denied. Id. at *3. Because a pre-trial motion would have been denied, the court also held that counsel’s actions did not prejudice McCalvin. Id. at *4. The Michigan Supreme Court denied discretionary review.

In August 2002, McCalvin filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), raising two grounds for relief. First, McCalvin argued that the Michigan Court of Appeals’ determination that her confession was voluntary was contrary to clearly established federal law as set forth in Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), and United States v. Tingle, 658 F.2d 1332 (9th Cir.1981).

Second, McCalvin argued that the Michigan Court of Appeals’ determination that her attorney provided effective assistance of counsel was also contrary to federal law. The matter was referred to a magistrate, who filed a Report and Recommendation, recommending that the district court deny McCalvin’s petition. In December 2004, the district court granted McCalvin’s request for habeas relief on both grounds. McCalvin v. Yukins, 351 F.Supp.2d 665, 674 (E.D.Mich.2005). The court ruled that it could reach the merits of McCalvin’s coercion claim because, under the four-factor test set forth in Maupin v.

Smith, 785 F.2d 135, 138 (6th Cir.1986), her procedural default was excused. McCalvin, 351 F.Supp.2d at 670-74. Cause and prejudice sufficient to excuse the procedural default existed because McCalvin’s counsel had rendered ineffective assistance by failing to file a pretrial motion to suppress. Id. at 671-73. The court ruled that, under Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), it was objectively unreasonable for counsel to wait to file a motion to suppress merely because he did not want to give the prosecutor time to “gather his forces” and because he thought that a motion would not succeed due to the trial court judge’s “conservative” nature. Id. at 671-72, 104 S.Ct. 2052. In addition, McCalvin had demonstrated prejudice because the admission of her confession made the inference of malice more likely and rendered the jury verdict suspect. Id. at 672-73, 104 S.Ct. 2052.

Reaching the merits of the coercion claim, the district court ruled that McCalvin’s confession was involuntary. Id. at 669-70, 104 S.Ct. 2052. The court likened the circumstances surrounding McCalvin’s confession to those deemed coercive in Lynumn v. Illinois and United States v. Tingle: Petitioner was in a more vulnerable position than was the petitioner in Lynumn, because she was alone in an unfamiliar surrounding when Helgert made the statements regarding visitation. Even if Petitioner did not appear to Helgert to be in distress, as did the petitioner in Tingle, Helgert’s statements cannot be deemed innocuous.

He admitted telling her that, if she were convicted of first-degree murder, she would never again have contact with her children.... Most significantly, Petitioner had been in custody for approximately eight or nine hours — all the while maintaining that Decedent’s death was an accident — when she made the confession. The statements definitely played upon Petitioner’s maternal instinct and were coercive. Id. at 669-70, 104 S.Ct. 2052 (footnote omitted).

The district court held that, because McCalvin’s confession was coerced, the decision of the Michigan Court of Appeals affirming the trial court’s denial of the motion to suppress was unreasonable and contrary to established federal law. Id. at 670, 104 S.Ct. 2052. The district court found that these constitutional errors were not harmless, and it therefore granted McCalvin’s petition for a writ of habeas corpus. Id. at 674, 104 S.Ct. 2052.

The State now appeals, arguing that it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Michigan Court of Appeals to hold that McCalvin’s trial counsel had rendered effective assistance. III. The district court erred in granting McCalvin’s habeas petition because it was not contrary to, or an unreasonable application of, clearly established federal law for the Michigan Court of Appeals to hold that McCalvin’s confession was voluntary.

Upon weighing the totality of the circumstances surrounding McCalvin’s confession, it was objectively reasonable for the Michigan Court of Appeals to hold that McCalvin’s will was not overborne. Moreover, the interrogation of McCalvin is distinguishable from the interrogation deemed coercive in Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963). Because McCalvin’s due process voluntariness claim fails, her ineffective-assistance-of-counsel claim also must fail because she could not have suffered prejudice from her counsel’s failure to make a timely motion to suppress her confession.

McCalvin filed her habeas petition in August 2002; thus, her case is governed by 28 U.S.C. § 2254(d), as amended by the AEDPA of 1996. See Smith v. Stegall, 385 F.3d 993, 997 (6th Cir.2004).

Section 2254(

d) provides, in relevant part, that a petition for a writ of habeas corpus shall be denied by the district court unless the state court’s decision: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States .... 28 U.S.C. § 2254(d). “Clearly established federal law,” refers to the “holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

A state-court decision constitutes an “unreasonable application” of clearly established federal law if the court invokes a Supreme Court case and unreasonably extends its legal principle to a new context where it should not apply or fails to extend it to where it should apply. Id. at 407, 120 S.Ct. 1495. A “federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established federal law was objectively reasonable.” Id. at 409, 120 S.Ct. 1495.

In this case, the district court held that the decision of the Michigan Court of Appeals was unreasonable because it was coercive for Detective Helgert to tell McCalvin, after she had been in custody for eight to nine hours, that she would not have contact with her family, including her children, if she were convicted of first-degree murder. Under the deference to state-court determinations required by AEDPA, however, we cannot say that the Michigan Court of Appeals unreasonably applied federal law as reflected in Supreme Court precedents.

Under clearly established Supreme Court law, “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment.” Miller v. Fenton, 474 U.S. 104, 109, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). The question in each of these cases is whether a defendant’s will was overborne at the time she confessed. Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961).

In determining whether a defendant’s will was overborne, the Court looks at the totality of the circumstances surrounding the confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Factors considered in assessing the totality of the circumstances include the age, education, and intelligence of the defendant; whether the defendant has been informed of his Miranda rights; the length of the questioning; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as deprivation of food or sleep. Id.

Based upon the totality of the circumstances in this case, it was objectively reasonable for the Michigan Court of Appeals to hold that McCalvin’s confession was voluntary. As the court of appeals noted,

(1) McCalvin signed a Miranda waiver;

(2) McCalvin was of sufficient maturity to understand her rights because she was in her mid-twenties, a high school graduate, not ill or injured, and not under the influence of alcohol or drugs;

(3) McCalvin received several breaks during the interrogations; (4) the detectives offered McCalvin food and water; and

(5) Helgert testified that McCalvin was unemotional during the interrogation. In addition, McCalvin (6) was permitted to call her mother, (7) never asked for an attorney, and (8) never said anything indicating that she wished for the interview to stop. Together, these circumstances support a finding that McCalvin’s will was not overborne. Although some of the circumstances surrounding McCalvin’s confession were perhaps coercive, they do not warrant a conclusion that the Michigan Court of Appeals’ decision was objectively unreasonable.

The following factors could provide support for a finding of coercion: McCalvin had no experience with jail or interrogation; McCalvin was held for eight to nine hours (though only interrogated for four); the detectives repeated the same questions several times until McCalvin confessed; two different teams of detectives were used; and Helgert stated that McCalvin would not have contact with her children if convicted of first-degree murder.

Yet, even under these circumstances, it was not objectively unreasonable for the Michigan Court of Appeals to hold that McCalvin’s will was not overborne. “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).

Under the deference required by AEDPA, and given the factors supporting a finding that McCalvin’s confession was voluntary, the decision of the Michigan Court of Appeals was a reasonable application of federal law. The district court largely grounded its decision on the similarity between this case and Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), but Lynumn is distinguishable. In Lynumn, the defendant, who had never been in trouble with the law, was interrogated in her apartment while surrounded by three police officers and a police informant. Id. at 529-30, 83 S.Ct. 917.

The officers told her that “state financial aid for her infant children would be cut off, and her children taken from her, if she did not ‘cooperate.’ ” Id. at 534, 83 S.Ct. 917. If she did cooperate, the officers promised that the prosecutor would go light on her. Id. at 532-34, 83 S.Ct. 917. The Supreme Court held that these circumstances made the defendant’s confession involuntary. Id. at 534, 83 S.Ct. 917. The circumstances surrounding the confession in Lynumn, however, differ from those surrounding McCalvin’s confession in a number of ways.

First, the defendant in Lynumn was interrogated while surrounded by three police officers and “a twice convicted felon who had purportedly ‘set her up.’ ” Id. at 534, 83 S.Ct. 917. Here, McCalvin was never interrogated by more than two officers. Second, because Lynumn preceded the Court’s decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the police never read the defendant her constitutional rights. In this case, McCalvin signed a Miranda waiver and never asked to see her attorney or for the interrogation to stop.

A confession is much more likely to be voluntary when it is given after a person knowingly and voluntarily waives his Miranda rights. As the Supreme Court stated in Berkemer v.

McCarty, 468 U.S. 420, 433 n. 20, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), “cases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare.” Most importantly, the officers’ statements in Lynumn are different from Helgert’s statement that McCalvin would not have contact with her family, including her children.

The officers in Lynumn not only threatened that the defendant would lose contact with her children but also that the aid to the her children would be cut off. 372 U.S. at 534, 83 S.Ct. 917. Such a statement is especially sinister because it implicates the children’s livelihood. In addition, the police in Lynumn explicitly promised leniency if the defendant confessed. Id. at 532-34, 83 S.Ct. 917. Helgert never admitted to promising McCalvin anything. Helgert testified that he merely informed her of the consequences of a first-degree murder conviction.

We are not prepared to forbid police from conveying to suspects the seriousness of the crime for which they are being investigated. This court noted a similar distinction in Ledbetter v, Edwards, 35 F.3d 1062 (6th Cir.1994). Although only Supreme Court case law is relevant under AEDPA in deciding what federal law is clearly established, lower federal court decisions may be used to the extent we have already reviewed and interpreted the relevant Supreme Court law. Hill v. Hofbauer, 337 F.3d 706, 716 (6th Cir.2003).

In Ledbetter, we held that several misrepresentations by police officers, such as a staged victim identification and a fingerprint that the officers falsely claimed to have matched to the defendant, had not overborne the defendant’s will. 35 F.3d at 1070. In doing so, we distinguished the officers’ conduct from that in Lynumn: In Lynumn, the concern was outright fear of adverse consequences, elimination of government benefits, which may be just as real as the physical fear of adverse consequences in outright torture. ...

In our case, the only adverse consequences being presented to the defendant were the results of ultimately being convicted of the crime. A defendant who is completely innocent might well confess in the circumstances of Spa-no or Lynumn, for fear of the extraneous adverse consequences. By contrast, an innocent defendant in the circumstances in our case would have little incentive to render a false confession. Id. Similarly, McCalvin was not made to fear more than the result of being convicted of first-degree murder, which included not seeing her children.

It was therefore objectively reasonable for the Michigan Court of Appeals to distinguish Lynumn and find that this fear did not overcome McCalvin’s will. Because it was a reasonable application of federal law for the Michigan Court of Appeals to hold that McCalvin’s confession was voluntary, it was also a reasonable application for it to hold that her trial counsel had not rendered ineffective assistance of counsel. To prevail on an ineffective-assistance-of-counsel claim, a defendant must demonstrate both deficient performance and prejudice. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish prejudice, a defendant must show a reasonable probability that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. McCalvin cannot show that her motion to suppress would have succeeded had it been timely filed, and thus she cannot satisfy the prejudice requirement of her ineffective-assistance-of-counsel claim. IV. This case is difficult, and our decision should not be read as approving the interrogation techniques used.

Under the deference to state-court legal determinations required by AEDPA, however, we cannot say that the Michigan Court of Appeals unreasonably applied federal law as reflected in Supreme Court precedents. For the foregoing reasons, we reverse the judgment of the district court. . The district court concluded that "[t]his statement was false, given that the Department of Corrections' visitation policy does not distinguish between those who are convicted of first-degree murder and other types of offenders.” McCalvin v. Yukins, 351 F.Supp.2d 665, 669 n. 3 (E.D.Mich.2005).

However, this statement was not necessarily false. It does not say that McCalvin would never have contact with her family. It only says that she "would not” have contact with her family. Most people would hardly consider prison visitation "contact” with one's family in the normal sense. . The district court opinion is not entirely clear as to whether the court granted habeas relief on two grounds — the coerced confession and ineffective assistance of counsel — or only one ground — the coerced confession, with a finding of ineffective assistance only to excuse the procedural default.

In our view, there were two grounds for relief. McCalvin raised the coerced confession and ineffective assistance as two separate claims in her habeas petition. In addition, the district court’s own language supports this

interpretation: "Ineffective assistance of counsel is also a substantive claim which gives rise to an independent constitutional violation.” McCalvin, 351 F.Supp.2d at 670 (emphasis added). . Rather than asserting the voluntariness of McCalvin’s confession as a freestanding argument, the State appears to raise voluntariness as part of its challenge to the district court’s ineffective-assistance-of-counsel ruling.

The State argues that, because the trial court would have found McCalvin’s confession voluntary even had her counsel timely filed the motion to suppress, McCalvin cannot satisfy the Strickland prejudice requirement. Thus, we properly examine the voluntariness of McCalvin’s confession regardless of whether on appeal the State presented it independently or as part of its ineffective-assistance-of-counsel argument. . In Williams, the Supreme Court clarified that the "contrary to” or an "unreasonable application of” clauses are independent tests and must be analyzed separately. 529 U.S. at 407, 120 S.Ct. 1495.

Because the district court’s decision rested upon the "unreasonable application” prong, see McCalvin v. Yukins, 351 F.Supp.2d 665, 674 (E.D.Mich. 2005), we examine whether the decision of the Michigan Court of Appeals was objectively reasonable. . Although McCalvin testified that Helgert promised her leniency if she changed her story, the district court did not rely on that testimony in its decision. The state-trial court did not make any factual findings regarding Helgert’s statements because it ruled that McCalvin's motion to suppress was untimely.

Thus, the only support in the record for McCalvin’s allegations is her testimony. . The district court also relied on the Ninth Circuit's decision in United States v. Tingle, 658 F.2d 1332 (9th Cir.1981), but Tingle is distinguishable as well. In Tingle, an FBI agent told the defendant that she would not see her child "for a while” if she went to prison. Id. at 1336. However, unlike this case, the agent promised the defendant that her cooperation would be communicated to the prosecutor, but if the defendant refused to cooperate the agent threatened to tell the prosecutor that she was "stubborn or hardheaded.” Id.

Finally, the defendant sobbed and was noticeably shaking for at least ten minutes before confessing. Id. at 1334. In this case, Helgert testified that McCalvin appeared unemotional. Moreover, even if Tingle had been decided by this court instead of another circuit, its holding would be formally less relevant than our holding in Ledbetter. Our holding in Led-better that certain actions were constitutional logically implies that such actions were at least reasonable applications of Supreme Court precedent.

In the other direction, however, a holding like Tingle that certain actions were not constitutional does not logically imply that a state court could not reasonably conclude that they were.