Stephen Michael FLEMING, Petitioner-Appellee, v. Linda METRISH, Warden, Respondent-Appellant, 556 F.3d 520

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 RONALD LEE GILMAN, Circuit Judge. 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 Fleming’s 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, Fleming’s brother provided Detective Robert Lesneski with information that led Lesneski to conclude that Fleming was involved in York’s death. Fleming’s 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 Fleming’s residence and other buildings on his farm in mid-November 1999. Upon arriving at Fleming’s residence, Detective Lesneski said that Fleming was “very cooperative” and even told the officers about illegal drugs that were located on the property.

After finding the drugs, Lesneski approached Fleming to “read him his rights” and to ask if Fleming would speak with him. Fleming refused to answer “questions about that fucking homicide or homosexual activity,” and then said that he was “not going to be one of the guys that you hear about in 60 minutes, that went to jail for something he didn’t do.” Lesneski subsequently placed Fleming under arrest for possessing illegal drugs and had him put in the back seat of a police squad car. The detective estimated that Fleming was placed in the car between 1:00 and 1:30 p.m.

A search continued on Fleming’s property for evidence relating to York’s death. 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 “small talk” until Detective Lesneski approached the van and smiled. Clayton surmised that something “positive” had happened.

Indeed, the police had found the murder weapon and were therefore “quite excited.” Officer Clayton next told Fleming that things did not look good for him and that “maybe he needed to do the right thing.” Fleming testified, on the other hand, that Clayton told him that “it’s obviously not a good sign for you,” and that “[i]f you have a chance at anything, ...

I would [ ] strongly recommend that you get with the program is my advice.” Clayton denied ever telling Fleming “[t]o get with the program.” 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 Clayton’s 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 van’s doors for Fleming so that he could get some air. After asking for “a couple of minutes” to “get [his] head straight,” Fleming confessed to York’s 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 didn’t 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 don’t want you waking up tomorrow feeling sorry for something you did or didn’t 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 York’s death.

In response, Fleming provided “far more information” about the circumstances surrounding the killing. Approximately an hour later, Detective Lesneski tape recorded Fleming’s 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 — he told me to be careful of what I say, that don’t be sorry for — you don’t want to be sorry for something you have or haven’t said. I don’t remember the exact words, but there was a conversation before I had— I didn’t come right out and say, “Yeah, I done it.” B. Procedural background Fleming’s 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 “phase of motion practice in which all issues of admissibility of a defendant’s statements are resolved.” 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)). Fleming’s counsel framed the issues at stake in the hearing as follows: “[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.” The prosecutor framed the issue, in contrast, as “nothing but voluntariness.” Accepting the prosecutor’s statement of the issue, the state trial court held, without explaining why, that “[t]he only issue ... is whether or not [the confession] was voluntary.” 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 “a couple hundred dollars” to buy crack cocaine. Fleming also claimed that York became furious when he refused, telling Fleming that “I am going to kick your fucking teeth right through your head.” 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 Fleming’s 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 “In a habeas corpus appeal, we review the district court’s 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).” 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 court’s decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court’ or (2) the state court’s decision ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.’ 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 “contrary to ... clearly established federal law” if the two are “diametrically different, opposite in character or nature, or mutually opposed.” 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 “unreasonable application of ... clearly established Federal law,” a state-court decision on the merits must be “objectively unreasonable,” not simply erroneous or incorrect. Id. at 409-11, 120 S.Ct. 1495.

The state court’s 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 Fleming’s Fifth Amendment right to remain silent was not violated during the investigation of York’s 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 state’s counsel, according to the district court, “acknowledged at oral argument [that] the issue had been raised in state court.” 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, “the profession [came] to use the term[ ] Walker hearing’ to refer to that phase of motion practice in which all issues of admissibility of a defendant’s statements are resolved.” See People v. Ray, 431 Mich. 260, 430 N.W.2d 626, 631 (1988). We find no error in the district court’s adoption of Fleming’s persuasive response regarding the scope of a Walker hearing. Moreover, the state’s concession that the Miranda issue “had been raised in state court” negates a finding of procedural default.

We therefore turn to the merits of Fleming’s Fifth Amendment Miranda claim. 2. Admissibility of Fleming’s 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, “the admissibility of statements obtained after the person in custody has decided to remain silent depends ... on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). We disagree with the district court’s conclusion that the Michigan Court of Appeals unreasonably applied Mosley. The district court’s analysis turned on its determination that Officer Clayton “interrogated” 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 Appeals’s application of Mosley. a. Whether Fleming was interrogated by the police 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 “interrogation” in the Miranda context as follows: “Interrogation,” 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 “interrogation” 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. “The respondent stated that he understood [his Miranda] rights and wanted to speak with a lawyer.” 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,] there’s 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 “apparently shared his fellow officer’s concern,” indicating that he “more 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.” Id. at 295, 100 S.Ct. 1682. Sometime during the course of this discussion, Innis “interrupted 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.” Id.

After considering the above facts, the Supreme Court held that the officers’ 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 “peculiarly susceptible to an appeal to his conscience,” 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 not a case where the police carried on a lengthy harangue in the presence of the suspect.

Nor does the record support the respondent’s contention that, under the circumstances, the officers’ comments were particularly “evocative.” 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 Clayton’s brief remarks did not constitute an interrogation within the meaning of Miranda.

Accepting Fleming’s account of the events as true, the Michigan court characterized Officer Clayton’s comments as “(

i) a mild admonition to ‘do the right thing’ or ‘get with the program’; and (ii) an inquiry as to whether [Fleming] now wished to talk to the lead investigating officer.” The court stated: As to (i), given the defendant’s 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 ‘reasonably likely to elicit an incriminating response,’ 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 ‘an informed an intelligent assessment’ of his or her options may be made. We find nothing unreasonable about the Michigan appellate court’s application of the interrogation standard set forth in In-nis. The record reasonably supports a finding that Fleming was not subject to “a measure of compulsion above and beyond that inherent in custody itself.” See Innis, 446 U.S. at 300, 100 S.Ct. 1682.

Nor is this a case “where the police carried on a lengthy harangue in the presence of the suspect.” See id. at 303, 100 S.Ct. 1682. There is no evidence, moreover, indicating that Fleming was “peculiarly susceptible to an appeal to his conscience.” See id. Instead, just as in Innis, Officer Clayton’s comments involved a “brief conversation” that including nothing more than “a few off hand remarks” that were not “particularly ‘evocative.’ ” 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 Clayton’s brief remarks were, in contrast, clearly aimed at Fleming. Such a distinction might be significant if an officer’s brief remarks morphed into, for example, a “lengthy harangue” 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 “the mere statement by [a law-enforcement official] that ‘we’ve got good information on you,’ viewed in context, contains no compulsive element suggesting a Fifth Amendment violation under the circumstances.”). There are strong arguments both for and against construing Officer Clayton’s comments as an interrogation.

Indeed, were Fleming’s appeal a direct one to be reviewed de novo, the possibility exists that we might have agreed with Fleming’s position. But the fact that a federal court might disagree with the Michigan Court of Appeals’s application of Innis does not justify the conclusion that the Michigan court unreasonably applied the Supreme Court’s decision. See Woodford v.

Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (holding that “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly”); see also Hereford v. Warren, 536 F.3d 523, 528 (6th Cir.2008) (“Our task is not to determine whether the state court reached the correct outcome, but rather to determine whether the court’s application of clearly established federal law is objectively unreasonable&emdash;-‘a substantially higher threshold.’ ”) (quoting Schriro v.

Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007)). We conclude that the Michigan Court of Appeals’s determination regarding a lack of interrogation by Officer Clayton was not an “unreasonable application of ... clearly established Federal law.” See Williams v. Taylor, 529 U.S. 362, 376, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Finally, we note that Fleming disputed Detective Lesneski’s account of the in-van interview that took place after Officer Clayton’s 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 Fleming’s 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 court’s 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: “[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’” 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 “fail[ ] to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Id. at 105-06, 96 S.Ct. 321 (brackets added).

Factors favoring a finding that the police have scrupulously honored a defendant’s rights include where “[1] the police ... immediately ceased the interrogation, resumed questioning only after [2] the passage of a significant period of time and the provision of a fresh set of warnings, and [3] restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.” Id. at 106, 96 S.Ct. 321 (brackets added).

Mosley “neither elevates any one factor as predominant or dispositive nor suggests that the enumerated factors are exhaustive, but instead directs courts to focus on whether the confession ‘was obtained in a manner compatible with the requirements of the Constitution.’ ” United States v. Schwensow, 151 F.3d 650, 659 (7th Cir.1998) (quoting Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985)).

In holding that Fleming’s confession was admissible under Mosley, the Michigan Court of Appeals emphasized that there was no evidence indicating that the police endeavored to “wear down [Fleming’s] resistance and make him change his mind.” See Mosley 423 U.S. at 105, 96 S.Ct. 321. Although Fleming confessed before receiving a fresh set of Miranda warnings, the Michigan court’s 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 court’s opinion, which emphasized that the police officers did nothing to “wear down” Fleming’s resistance, the district court emphasized other Mosley factors. The district court did not think that the police waited long enough before “questioning” 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 “do the right thing,” or before Clayton allegedly told Fleming to “get with the program” (which assumes, contrary to the reasonable determination of the Michigan Court of Appeals, that these comments constituted an “interrogation” 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 court’s opinion in fact contains no discussion of Lesneski’s 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 court’s ultimate conclusion — that the officers scrupulously honored Fleming’s right to remain silent where there was no evidence that they tried to “wear down” Fleming’s resistance — was contrary to Mosley.

As previously noted, “Mosley neither elevates any one factor as predominant or dispositive nor suggests that the enumerated factors are exhaustive, but instead directs courts to focus on whether the confession ‘was obtained in a manner compatible with the requirements of the Constitution.’ ” Schwensow, 151 F.3d at 659 (quoting Miller, 474 U.S. at 112, 106 S.Ct. 445).

Even Fleming concedes that Mosley does not provide a per se rule for determining whether the police have sufficiently honored the. suspect’s exercise of his right to remain silent, and that Mosley does not require in every case the passage of a fixed length of time, the provision of fresh Miranda warnings, or a change of subject.

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 court’s 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 Appeals’s 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 Appeals’s plain-error review of the claim is not entitled to AEDPA deference because such a review does not amount to consideration ‘on the merits’ 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 “a state court’s plain error analysis does not save a petitioner from procedural default”); 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 court’s application of plain-error review does not revive a habeas petitioner’s otherwise proeedurally defaulted claim on collateral review. But we disagree with our colleague’s view that they control not only this court’s ability to address a habeas petitioner’s 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 that the purposes of the procedural-default rule include concerns of comity and federalism).

Similarly, Congress enacted AED-PA “to further the principles of comity, finality, and federalism.” Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). But the fact that similar concerns motivate both the procedural-default doctrine and AEDPA does not permit us to ignore the latter simply because the former doctrine is deemed inapplicable. Instead, we believe that this court’s jurisprudence is reasonably clear about when a state-court’s consideration of a claim is to be considered “adjudicated on the merits” for the purpose of triggering our review under AEDPA. See 28 U.S.C. § 2254(d).

This court’s 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 Court’s 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 petitioner’s 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 court’s adjudication if the state court “confined its analysis ... to state law” 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' — 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 court’s 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 defendant’s 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 petitioner’s 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 court’s 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 “reasoned adjudication” 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 Fleming’s Fifth Amendment claim was “adjudicated on the merits” for AEDPA purposes by the Michigan Court of Appeals. We note as an initial matter that Fleming has never contested AEDPA’s applicability. This issue has instead been raised sua sponte by our dissenting colleague.

Moreover, the Michigan Court of Appeals analyzed Fleming’s claim pursuant to Mosley’s “scrupulously honored” standard, as amply indicated by the above discussion of the Michigan court’s opinion. Its use of the plain-error standard of review, as opposed to the clearly erroneous or de novo standards, simply made reversal of the state trial court’s judgment less likely, but did not cause the Michigan Court of Appeals to bypass the merits of Fleming’s claim and thereby avoid triggering AEDPA deference.

Nor are we persuaded by our dissenting colleague’s distinction between federal constitutional issues that a state court “merely addresses” on the merits and those that are “ ‘adjudicated’ on the merits.” (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) (“Where a state court fails to address federal law, § 2254 does not apply, and the decision is reviewed de novo,” 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 Appeals’s plain-error review essentially required addressing whether an error had occurred — an inquiry which, in this case, could not be accomplished without first adjudicating the merits of Fleming’s 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 Fleming’s 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 “plain error” can be considered “adjudicated on the merits” 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 Congress’s intent to have AEDPA “further the principles of comity, finality, and federalism,” Williams, 529 U.S. at 436, 120 S.Ct. 1479, if we simply ignored the Michigan Court of Appeals’s evaluation of Fleming’s 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 Appeals’s reasoning on the merits of Fleming’s claim despite our disagreement with its ruling that the issue was proeedurally defaulted.

The state court’s substantive reasoning does not simply vanish along with its erroneous procedural-default determination. Nor does AEDPA. We therefore believe that the dissent’s de novo analysis of Fleming’s Fifth Amendment claim is inappropriate, and we further disagree with its conclusory statements to the effect that Officer Clayton’s brief comments (or even Detective Lesne-ski’s alleged encouragement to cooperate) “demonstrate a persistent and not-so-subtle effort to persuade Fleming to discuss the homicide.” (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 suspect’s Miranda rights. See id. at 574-75, 586-88 (granting habeas where the police officers questioned the petitioner continuously for nearly three hours, and where the interrogation was “very, very one-sided”). We have already discussed why Officer Clayton’s comments came nowhere close to that characterization.

Detective Lesneski’s alleged comments are similarly not inconsistent with Mosley, a case that provides no set formula for determining whether the police have scrupulously honored a suspect’s 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 “to make informed and intelligent assessments of [his] interests.” See id. at 102, 96 S.Ct. 321.

Detective Lesneski’s 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, Lesneski’s alleged comments included a suggestion to “cooperate.” But this suggestion was accompanied by — again, according to Fleming himself — a warning to Fleming “to be careful” about what he said, and a caution not to say anything about which he would be “sorry.” 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. Fleming’s constitutional right to present a defense We now turn to Fleming’s alternative habeas claim regarding the exclusion of Scott Fowler’s testimony as a defense witness. The state trial court expressly refused to consider Fleming’s 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 Fleming’s 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 petitioner’s 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 York’s 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 witness’s testimony would not have been relevant to Fleming’s self-defense theory because “[i]f evidence is used to show the defendant’s state of mind and support his apprehensions, the defendant must have known of the evidence.” See People v. Harris, 458 Mich. 310, 583 N.W.2d 680, 683-84 (1998). But there was no evidence in the record that Fleming’s alleged apprehension of York was based on anyone’s having witnessed York rob a drug dealer in the past.

In fact, Fleming testified that, at the time of the incident, he did not know anything about York’s propensity for violence. The state appellate court therefore found that “to whatever extent [Fleming] had knowledge of [York’s] prior conduct, it was not based whatsoever on the excluded evidence.” Such evidence was thus excluded because it was deemed irrelevant to establishing Fleming’s state of mind before York’s death.

To the extent that the witness’s testimony served to establish character evidence of York’s propensity for violence, the Michigan Court of Appeals also held that such testimony would only have been allowed in the form of “testimony as to reputation or by testimony in the form of an opinion.” 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 York’s 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 Appeals’s “failure ... to recognize the Constitutional dimension of the [trial court’s] error,” and considered this purported error to be “an unreasonable application of federal law.” Quoting Taylor v. Illinois, 484 U.S. 400, 409, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988), the court observed that “[t]he right to offer testimony is ... grounded in the Sixth Amendment even though it is not expressly described in so many words.” 2.

Merits of the claim Fleming argues that the Michigan trial court erred in excluding Fowler’s 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. “[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.” 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 “[i]t is well settled that the Constitution does not guarantee a defendant the opportunity to present any evidence he desires.” Alley v. Bell, 307 F.3d 380, 396 (6th Cir.2002). Indeed, “[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.” 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) (“[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.”).

Fleming argues that the Michigan trial court erred in finding that Fowler’s testimony was irrelevant and duplicative. As to relevancy, Fowler would have testified that he had previously witnessed York rob a drug dealer. This testimony was intended to bolster Fleming’s specific account of what happened immediately before he shot York. In particular, if the jury was more likely to believe, due to Fowler’s testimony, that York tried to rob Fleming, then the jury might have in turn believed that Fleming feared a serious risk of bodily injury at the hands of York.

Absent Fowler’s testimony, however, the jury was more likely to conclude that Fleming just made up the whole thing. Fowler’s testimony is therefore arguably relevant to Fleming’s self-defense claim. Fleming also contends that Fowler’s testimony did not duplicate the testimony of the two witnesses who testified that York was prone to violence. Instead, Fowler’s testimony would have arguably added credibility to Fleming’s account of the specific events leading up to York’s death. Fleming contends that the Michigan Court of Appeals therefore erred in excluding Fowler’s 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 court’s evidentiary ruling was “so egregious” 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 court’s 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 “[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.” Even assuming the accuracy of this broad proposition, neither ease supports Fleming’s conclusion that the trial court’s 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 “denied an opportunity to subject [the witness’s] damning repudiation and alibi to cross-examination” based on the state court’s rigid application of the so-called “voucher rule” 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 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. Id. at 23, 87 S.Ct. 1920. 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 York’s 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 court’s evidentiary ruling was “so egregious that it results in a denial of fundamental fairness ... and thus warranties] habeas relief.” See Baze, 371 F.3d at 324. The district court therefore erred in granting Fleming’s 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 court’s ruling had violated Fleming’s constitutional right to present a defense, that constitutional error would be harmless.

To determine whether an error is harmless on collateral review, “we ask whether the error ‘had [a] substantial and injurious effect or influence in determining the jury’s verdict.’ ” 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 Fowler’s testimony was not harmless because the exclusion “allowed the prosecutor to argue [that Fleming’s] testimony of fear of Scott York was not corroborated.” We respectfully disagree with the district court’s analysis because there is no indication that barring Fowler had a substantial and injurious effect on the jury’s finding that Fleming was guilty.

As the Michigan Court of Appeals observed: [D]efendant’s 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 “probably sixty yards” away from the victim, before turning around to attempt to pacify the victim.

Moreover, defendant[’s] testimony[ ] established that the victim approached him menacingly at a “steady walk”; 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 “self-defense,” he testified that he shot the victim twice.

Further, defendant testified 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 defendant’s testimony, we believe that there was an ample basis for the jury to conclude that defendant’s use of deadly force was unreasonable, regardless of the victim’s history of robbing crack dealers or defendant’s honest belief that those stories were true. The district court simply failed to consider the Michigan Court of Appeals’s 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 York’s 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 jury’s 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 Fleming’s petition for a writ of habeas corpus.