1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0283P (6th Cir.)

File Name: 04a0283p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

KEVIN MARK ABELA,

Petitioner-Appellant,

v.

WILLIAM MARTIN, Director,

Michigan Department of

Corrections,

Respondent-Appellee.

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No. 00-2430

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 99-72095—Robert H. Cleland, District Judge.

Argued: April 21, 2004

Decided and Filed: August 27, 2004 

Before: SILER, COLE, and CLAY, Circuit Judges.

_________________

COUNSEL

ARGUED: James Sterling Lawrence, Detroit, Michigan, for

Appellant. William C. Campbell, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

ON BRIEF: James Sterling Lawrence, Detroit, Michigan,

2 Abela v. Martin No. 00-2430

for Appellant. William C. Campbell, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellee.

COLE, J., delivered the opinion of the court, in which

CLAY, J., joined. SILER, J. (pp. 26-27), delivered a separate

opinion concurring in part and dissenting in part.

_________________

OPINION

_________________

R. GUY COLE, JR., Circuit Judge. Petitioner Kevin Mark

Abela, a former Michigan prisoner who was convicted of

manslaughter and carrying a concealed weapon in 1991,

appeals the federal district court’s dismissal of his petition for

a writ of habeas corpus, which he filed pursuant to 28 U.S.C.

§ 2254 on April 26, 1999. Petitioner contends that: (1) his

Fifth Amendment rights were violated when police elicited

statements from him following his request for counsel and

when they interrogated him while he was allegedly

intoxicated, in pain, and on pain medication; (2) his due

process and Sixth Amendment rights were violated because

of prosecutorial misconduct at trial; and (3) he was denied the

effective assistance of both trial and appellate counsel.

Respondent contends that Abela’s claims are barred by

procedural default. 

Because we find that Abela’s claims are not barred by

procedural default, and that his Fifth Amendment claim

concerning statements elicited after he invoked his right to

counsel is meritorious, we REVERSE the district court’s

judgment and REMAND to the district court with

instructions to grant the writ of habeas corpus, unless the state

elects to retry Abela within ninety days of the date of this

opinion’s entry. 
No. 00-2430 Abela v. Martin 3

I. BACKGROUND

A. Factual Background

Abela’s convictions stemmed from the stabbing death of

Stanley Underwood at a party in the early morning hours of

May 19, 1990. Abela arrived at a party at the home of Allen

Howard in Rochester Hills, Michigan, sometime during the

evening of May 18. At approximately 1:00 a.m., Abela and

a friend, Ronald Wright, noticed a man, J.J. Sullivan, pushing

a car out of the driveway of the home. Abela confronted

Sullivan and an argument ensued; it turned into a fistfight.

After the fight broke up, Sullivan ran into the house, where he

told his older brother, Jerry, that someone had beaten him up.

A second fight began when Jerry Sullivan and Allen

Howard ran outside to confront Abela. Abela’s nose was

broken in the fight, which ended with Howard holding Abela

down on the ground. Howard promised Abela that he would

release him if he left the party immediately. Abela then left

the party with Wright.

Upon reaching their car, however, Wright realized that he

had forgotten his jacket at the party, and he returned to the

house to retrieve it. Abela waited at the edge of the driveway.

Suddenly, however, several people from the party, including

Stanley Underwood, attacked Abela, knocked him down, and

surrounded him. Abela was kicked and punched in the face

and body. Among the group of attackers was Stanley

Underwood, who, during the course of the brawl, straddled

Abela’s chest. Abela thereupon drew a knife from a sheath on

his belt and stabbed Underwood in the chest and left arm

three times. Underwood died a short time later from the stab

wounds.

Abela fled to a friend’s house, where he called 911 and told

the operator that he had stabbed someone. After meeting the

police back at Howard’s house, Abela was taken to a hospital

emergency room for treatment. While at the emergency

4 Abela v. Martin No. 00-2430

room, but before being treated for his injuries, Oakland

County Police Sergeant Michael McCabe began interrogating

Abela about the events leading up to the stabbing. Abela

responded by stating, “maybe I should talk to an attorney by

the name of William Evans,” and he showed Sergeant

McCabe Evans’s business card. Sergeant McCabe agreed to

call Evans for Abela and left the room, presumably to contact

Evans. Upon returning, McCabe made no mention of Evans,

and proceeded to read Abela his Miranda rights. Abela then

signed a form waiving those rights and gave a statement to

Sergeant McCabe. After being treated at the hospital, Abela

was taken to the police station. He gave another statement

there. In both statements, Abela admitted to stabbing

Underwood, but claimed that he did so in self defense. The

statements were admitted at trial and used by the prosecution

against Abela.

B. Procedural History

Abela was charged with second degree murder and carrying

a concealed weapon. Prior to trial in the Oakland County

Circuit Court, Abela’s counsel filed a motion to dismiss the

concealed weapon charge because the knife was not

concealed – Abela carried it in a sheath attached to the outside

of his belt. The trial judge granted the motion and dismissed

the concealed weapon charge on September 12, 1990. On

November 5, 1990 – outside the fourteen-day time limit

prescribed by Mich. Ct. Rule 2.119(F)(1) – the prosecution

filed a motion for reconsideration of the dismissal. Abela’s

counsel did not object to this motion. On June 3, 1991, the

trial judge granted the prosecution’s motion for

reconsideration and reinstated the concealed weapon charge.

The trial commenced in June 1991. During closing

arguments, the prosecutor presented a hypothetical

conversation between Abela and Ronald Wright. The

prosecutor stated:
No. 00-2430 Abela v. Martin 5

Do you think when they [Abela and Wright] got back to

that car they were mad as hell? Both of them got shot

down, pretty damn drunk, they are pretty pissed off.

They’ve lost the fight. They’ve been thrown out.

They’ve been humiliated . They’ve been embarrassed.

Not only that, Ron Wright says, “My damn coat’s back

there. Let’s go get it.” [Abela then replied,] “Ronnie,

better take this [Abela’s knife] when we go back. Ain’t

nobody going to kick our ass anymore. Let’s go back.”

This statement is the basis for Abela’s prosecutorial

misconduct claim, which will be discussed below.

Abela was convicted by a jury of voluntary manslaughter

and carrying a concealed weapon on July 24, 1991. He was

sentenced to seven to fifteen years’ imprisonment for the

voluntary manslaughter count, and a concurrent forty months

to five years of imprisonment for carrying a concealed

weapon. 

Abela appealed his convictions, raising three issues in the

Michigan Court of Appeals on February 17, 1992. The three

issues were: (1) that his sentence was disproportionate to the

crime; (2) that the trial court erred by reinstating the weapons

charge; and (3) that the trial court erred by allowing the

prosecution to present rebuttal testimony not raised in its

case-in-chief. The Michigan Court of Appeals affirmed

Abela’s conviction and sentence in an unpublished

disposition. People v. Abela, No. 144005 (Mich.Ct.App. July

22, 1994). The Michigan Supreme Court denied Abela’s

delayed application for leave to appeal these issues on March

31, 1995. People v. Abela, 448 Mich. 901, 533 N.W.2d 313

(Mich. 1995).

In August 1996, Abela filed a motion for relief from

judgment in the Oakland County Circuit Court, raising six

claims: (1) that his statement at the hospital was

unconstitutionally elicited and admitted because Sergeant

McCabe ignored Abela’s request for an attorney; (2) that his

6 Abela v. Martin No. 00-2430

statement at the hospital was involuntary because he was

injured, under the influence of alcohol, and on pain

medication at the time of questioning; (3) that the trial court

improperly granted the prosecution’s untimely motion to

reconsider the dismissal of the concealed weapon charge;

(4) that the prosecutor unfairly prejudiced Abela by

presenting witness testimony in his closing argument that was

unsupported by the record; (5) that Abela’s trial counsel

provided ineffective assistance; and (6) that Abela’s appellate

counsel provided ineffective assistance, constituting “good

cause” for Abela’s failure to raise the other claims in his

direct appeal. The motion was denied “for lack of merit on

the grounds presented.” People v. Abela, No. 90-101083

(Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the

same six issues on appeal to the Michigan Court of Appeals,

which likewise denied his petition “for lack of merit in the

grounds presented.” People v. Abela, No. 200930

(Mich.Ct.App. July 22, 1997). On August 9, 1997, Abela

again raised these six issues in his delayed application for

leave to appeal to the Michigan Supreme Court, which denied

his petition in a summary disposition, stating: “Defendant has

failed to meet the burden of establishing entitlement to relief

under M.C.R. 6.508(D). People v. Abela, 457 Mich. 880, 586

N.W.2d 923 (Mich. 1998). On August 3, 1998, Abela filed a

petition for certiorari with the U.S. Supreme Court, which

was denied on October 19, 1998. Abela v. Michigan, 525

U.S. 948 (1998).

Abela was released to parole status on March 16, 1998, and

discharged from parole on March 16, 2000, which terminated

his seven to fifteen year sentence for manslaughter. His three

to five year sentence for carrying a concealed weapon ended

on October 22, 1995. However, it was on April 26, 1999,

before his parole term ended, that Abela petitioned for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254, raising most

of the same claims as were in his motion for relief from

judgment (except for his claim that the trial court erred in

reconsidering its dismissal of the concealed weapon charge).

Specifically, Abela asserted that: (1) his statement to police
No. 00-2430 Abela v. Martin 7

at the hospital was unconstitutionally elicited and admitted

because he had invoked his right to counsel; (2) his statement

at the hospital was involuntary and inadmissible because he

was injured, intoxicated, and on pain medication at the time

of questioning; (3) the prosecutor engaged in misconduct

during closing argument; (4) trial counsel was ineffective for

failing to object to the prosecutor’s untimely motion for

reconsideration; and (5) appellate counsel was ineffective and

that this constitutes “good cause” for any alleged procedural

default of the preceeding claims.

The district court denied the petition for habeas relief on

October 31, 2000. It held that Abela’s claims were not

procedurally defaulted, but that they were without merit. This

Court granted a certificate of appealability on April 20, 2001,

and on October 30, 2002, denied the petition as untimely, and

accordingly, declined to address the merits. Abela v. Martin,

309 F.3d 338 (6th Cir. 2002). The Court then agreed to hear

the case en banc, and in 2003, vacated its prior opinion and

judgment, holding that Abela’s habeas petition was timely.

Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc). The

petition was remanded to this panel for consideration of the

procedural default question and the merits, which we turn to

now.

II. ANALYSIS

A. Jurisdiction and Mootness

We reaffirm our prior determinations concerning both

subject matter jurisdiction and mootness. Abela, 309 F.3d at

343-44. This Court has subject matter jurisdiction over

Abela’s habeas petition, pursuant to 28 U.S.C. § 2254(a),

because Abela was “in custody” at the time he filed the

petition with the district court on April 26, 1999. Jones v.

Cunningham, 371 U.S. 236, 242 (1963) (holding that

petitioner who was on parole was still “in custody” for habeas

purposes). Abela’s release from custody and the subsequent

conclusion of his parole term, after the filing of his habeas

8 Abela v. Martin No. 00-2430

petition, do not render moot his appeal from the district

court’s denial of the petition. He continues to satisfy Article

III’s “case or controversy” requirement because of the

continuing collateral consequences to a wrongful criminal

conviction. Spencer v. Kemna, 523 U.S. 1, 8 (1998).

B. Whether Abela Procedurally Defaulted on the Claims

in His Habeas Petition

Respondent contends that because the claims raised by

Abela in his habeas petition were raised for the first time in

his state post-conviction motion for relief from judgement –

and not on direct appeal – federal review of his claims is

barred by procedural default. It is well-settled that when a

state prisoner has “defaulted his federal claims in state court

pursuantto an independent and adequate state procedural rule,

federal habeas review of the claims is barred” unless the

petitioner can show cause for the default and prejudice

because of it, or a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

For the doctrine of procedural default to apply, there must

be a state procedural rule applicable to the petitioner’s claim,

and the petitioner must have failed to comply with that rule.

Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir.

1992), cert. denied, 507 U.S. 932 (1993). In addition, the

state court must have enforced the state procedural rule to bar

the petitioner’s claim. Specifically, the last state court from

which the petitioner sought review must have invoked the

state procedural rule as a basis for its decision to reject

reviewing the petitioner’s federal claims. Coleman, 501 U.S.

at 729-30. Lastly, the state procedural rule must constitute an

“adequate and independent” state ground on which the state

can rely to foreclose review of a federal constitutional claim.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). A state

procedural rule is “adequate” if it is firmly established and

regularly followed at the time it is applied. Williams v. Coyle,

260 F.3d 684, 693 (6th Cir. 2001). A state procedural rule is

an “independent” ground for precluding federal habeasreview
No. 00-2430 Abela v. Martin 9

if the state courts actually relied on the rule to bar the claim

at issue. As this Court has held, “a state procedural rule is an

independent and adequate state ground only if the state court

rendering judgment in the case clearly and expressly stated

that its judgment rested on a procedural bar.” Simpson v.

Sparkman, 94 F.3d 199, 202 (6th Cir. 1996). 

Whether a petitioner’s federal habeas claim is barred

because the petitioner procedurally defaulted on the claim in

state court is a question of law we review de novo. Couch v.

Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The last state court

from which Abela sought review, the Michigan Supreme

Court, denied relief in a standard order stating that:

“Defendant has failed to meet the burden of establishing

entitlement to relief under M.C.R. 6.508(D).” People v.

Abela, 457 Mich. 880, 586 N.W.2d 923 (Mich. 1998).

Respondent urges us to construe that order – and the citation

to M.C.R. 6.508(D) – as an invocation of the procedural

default provision set forth in M.C.R. 6.508(D)(3). M.C.R.

6.508(D) broadly pertains to motions for relief from

judgment, and states in relevant part:

(D)Entitlement to Relief. The defendant has the burden

of establishing entitlement to the relief requested. The

court may not grant relief to the defendant if the motion

(1) seeks relief from a judgment of conviction and

sentence that still is subject to challenge on appeal

pursuant to subchapter 7.200 or subchapter 7.300;

(2) alleges grounds for relief which were decided against

the defendant in a prior appeal or proceeding under this

subchapter, unless the defendant establishes that a

retroactive change in the law has undermined the prior

decision;

(3) alleges grounds for relief, other than jurisdictional

defects, which could have been raised on appeal from the

10 Abela v. Martin No. 00-2430

conviction and sentence or in a prior motion under this

subchapter, unless the defendant demonstrates

(a) good cause for failure to raise such grounds on appeal

or in the prior motion, and

(b) actual prejudice from the alleged irregularities that

support the claim for relief. . . .

As noted above, our task is to determine whether the state

court “clearly and expressly stated that its judgment rested on

a procedural bar.” Sparkman, 94 F.3d at 202. Here, the

Michigan Supreme Court only referenced M.C.R. 6.508(D),

generally, as the basis for denying Abela leave to appeal the

judgment of the Michigan Court of Appeals. As seen just

above, M.C.R. 6.508(D) states that “[t]he defendant has the

burden of establishing entitlement to the relief requested.”

Although 6.508(D)(1), (2), and (3) list specific procedural

grounds for denying a defendant relief from judgment, these

procedural grounds are not the exclusive grounds for which

a court may deny relief pursuant to M.C.R. 6.508(D). A court

may deny relief from judgment under 6.508(D) for the nonprocedural reason that the defendant simply failed to meet his

burden of “establishing entitlement to the relief requested.”

As such the Michigan Supreme Court’s citation to M.C.R.

6.508(D) in its order denying Abela leave to appeal does not

demonstrate that that court denied him leave to appeal on the

basis of a procedural default, much less on the procedural

ground described in M.C.R. 6.508(D)(3), which Respondent

urges on this Court.

We note that in Simpson v. Jones, 238 F.3d 399 (6th Cir.

2000), the Sixth Circuit held that a statement by the Michigan

Supreme Court that a defendant “failed to ‘meet the burden of

establishing entitlement to relief under M.C.R. 6.508(D)’”

constituted invocation of “an independent and adequate state

procedural rule” sufficient to prevent federal habeas review.

Simpson, 238 F.3d at 407-08. In that case, the petitioner filed

two motions for collateral review in the state court following
No. 00-2430 Abela v. Martin 11

his direct appeal. The trial court granted partial relief on the

first motion and the petitioner never appealed the adverse

portion of that ruling. The state trial judge explicitly denied

the second motion on procedural grounds, noting that

Simpson raised no issues that had not been previously

addressed by the trial court and the Michigan Court of

Appeals. Id. at 403. In addition, the court briefly addressed

and rejected Simpson’s arguments on the merits. Simpson

then filed an application for leave to appeal to the Michigan

Court of Appeals, raising the same claims he raised in the

second motion for collateral review before the trial court. He

also contested the trial court’s procedural default

determination. The Court of Appeals denied that application

on the basis of M.C.R. 6.508(D). Simpson then applied for

leave to appeal to the Michigan Supreme Court, based on the

same issues he had raised in the Court of Appeals. This

application was denied on the basis of M.C.R. 6.508(D). 

Similar procedural facts existed in Burroughs v. Makowski,

282 F.3d 410 (6th Cir. 2002), where the state trial court

denied post-conviction relief both on the merits and on the

ground of procedural default, and subsequently, both the

Michigan Court of Appeals and the Michigan Supreme Court

denied Burroughs’s application for leave to appeal, stating

that he failed to establish “entitlement for relief under M.C.R.

6.508(D).” Burroughs, 282 F.3d at 412.

But the Simpson and Burroughs rationale is inapplicable

here. In our case, the last reasoned state court judgment

before the Michigan Supreme Court’s order – which was the

Michigan Court of Appeals’ decision denying leave to appeal

– was a merits determination. The Court of Appeals stated

that the motion was “DENIED for lack of merit in the

grounds presented.” People v. Abela, No. 200930

(Mich.Ct.App. July, 22, 1997). Similarly, the trial court had

previously denied the motion for post-conviction relief “for

lack of merit on the grounds presented.” People v. Abela, No.

90-101083 (Oakland County Cit. Ct. Oct. 22, 1996). In short,

unlike in Simpson and Burroughs, the state courts below the

12 Abela v. Martin No. 00-2430

supreme court never invoked a procedural bar here, but rather

repeatedly ruled on the merits. The procedural circumstances

in this case are, therefore, materially different from those in

Simpson and Burroughs, where the lower state courts actually

invoked a procedural bar, making it clearer that the Michigan

Supreme Court was also invoking such a bar when it referred

to M.C.R. 6.508(D). But given that all of the lower state

courts adjudicated Abela’s case on the merits, it is not at all

clear that the Michigan Supreme Court’s summary order

relies on a procedural bar, as opposed to the non-procedural

reason that Abela simply failed to meet his burden of

“establishing entitlement to the relief requested.” Indeed,

given the line of prior merits determinations in Abela’s case,

it is just as reasonable to presume that the Michigan Supreme

Court’s reference to M.C.R. 6.508(D) signaled its agreement

with the lower courts’ merits determinations as it is to

presume that the reference signaled, for the first time in this

case, the invocation of a procedural bar. 

In short, the procedural facts of Simpson and Burroughs are

distinguishable from our case. The facts in Simpson and

Burroughs inspired greater certainty that the Michigan

Supreme Court actually relied on a procedural bar in

rendering its judgment. No such clarifying indicators are

present here. Moreover, Simpson and Burroughs do not

purport to eviscerate our Circuit’s rule that a state procedural

rule is an “independent and adequate” state ground only if the

state court rendering judgment in the case “clearly and

expressly stated that its judgment rested on a procedural bar.”

Sparkman, 94 F.3d at 202. Simpson and Burroughs did not

hold that we should divine procedural default from any and

all references to M.C.R. 6.508(D) where such default may

actually have occurred, but where the procedural history

raises genuine questions as to the state court’s actual reliance

on a procedural bar. To suggest that those cases did so hold

is to accept that they invert the inquiry into whether federal

review of the habeas claims is permitted. That is, pursuant to

Maupin v. Smith, 785 F.2d 135 (1986), whether the petitioner

actually failed to comply with a procedural rule is only the
No. 00-2430 Abela v. Martin 13

predicate, not the ultimate, question before us. The ultimate

legal questions are whether the court relied on and expressly

invoked that procedural bar and whether it is an “independent

and adequate” ground for precluding review. See Williams

v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001). If a state court

is slurring its words, our job is not to guess what it might be

saying, but rather to demand that it enunciate more clearly.

Here, because of numerous factors – the Michigan Supreme

Court’s reference only to M.C.R. 6.508(D), the absence of a

clear and express invocation of a procedural bar, and the

plausibility, based on the prior state courts’ merits rulings,

that the Michigan Supreme Court, too, grounded its decision

in a non-procedural reason based on Abela’s failure

to“establish[] entitlement to relief” – we cannot find that

M.C.R. 6.503(D)(3), the state procedural rule urged by

Respondent, was actually relied on by the Michigan Supreme

Court in this case. For the same reasons, we cannot find that

M.C.R. 6.503(D) constitutes an adequate and independent

basis for the state supreme court’s decision here.

Accordingly, we hold that the claims raised by Abela in his

habeas petition were not procedurally defaulted and we turn

now to the merits of the petition. 

C. Standard of Review

We review de novo the decision of the district court to deny

habeas relief. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.

2000). However, federal review of the state court’s decision

is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214

(1996). Pursuant to AEDPA, habeas relief may not be

granted with respect to any claim adjudicated on the merits in

the state court unless the adjudication: “(1) resulted in a

decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States; or (2) resulted in

a decision that was based on an unreasonable determination

of the facts in light of the evidence presented in the State

14 Abela v. Martin No. 00-2430

court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). In Williams

v. Taylor, 529 U.S. 362 (2000), the Supreme Court

determined that a state court’s decision is contrary to clearly

established federal law when it fails to consider a rule of law

that is embedded in the Supreme Court’s jurisprudence at the

time the state conviction became final. Williams, 529 U.S. at

380. In defining “clearly established law,” the Supreme Court

held that “rules of law are sufficiently clear for habeas

purposes even when they are expressed in terms of a

generalized standard rather than as a bright-line rule.” Id. at

382. The Williams court further held that a state court

unreasonably applies clearly established Supreme Court

precedent when it correctly identifies the governing legal

principle in the case, but unreasonably applies that principle

to the facts of the defendant’s case. Id. at 413. 

D. Abela’s Interrogations by Police and the Trial Court’s

Admission of the Statements

1. Whether Abela’s Statements Were Elicited in

Violation of His Fifth Amendment Right to Counsel

Abela’s first claim concerning his statements is that they

should have been suppressed because they were elicited in

violation of his Fifth Amendment right to counsel.

The Fifth Amendment to the U.S. Constitution guarantees

that “no person . . . shall be compelled in any criminal case to

be a witness against himself.” Although the Fifth

Amendment does not guarantee a right to counsel, in Miranda

v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that

in certain pretrial stages – namely, custodial interrogation –

the privilege against self–incrimination includes an implied

right to counsel. This right is triggered when a suspect is

interrogated while “in custody” or “otherwise deprived of his

freedom in any significant way.” Miranda, 384 U.S. at 444;

California v. Beheler, 463 U.S. 1121, 1126 (1983) (holding

that suspect’s voluntary appearance and departure at police

station for questioning was not custodial interrogation). The
No. 00-2430 Abela v. Martin 15

Supreme Court has broadly defined “interrogation” as any

police questioning of a suspect in custody “reasonably likely

to elicit an incriminating response.” Rhode Island v. Innis,

446 U.S. 291, 301 n.7, 302, n.8 (1980).

In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the

Supreme Court established a bright- line rule that once a

suspect is in custody and invokes the right to counsel, law

enforcement may not further interrogate him until counsel has

been made available, or unless the suspect initiates further

conversations or exchanges with the police. To trigger the

Edwards rule, the suspect’s invocation of the right to counsel

must be clear and unambiguous. Davis v. United States, 512

U.S. 452, 459 (1994). “[I]f a suspect makes a reference to an

attorney that is ambiguous or equivocal in that a reasonable

officer in light of the circumstances would have understood

only that the suspect might be invoking the right to counsel,”

then cessation of questioning is not required. Id. 

Here, the parties do not dispute that Abela was being

subject to custodial interrogation at the hospital when he

expressed a desire to speak to his attorney, William Evans,

and then showed Sergeant McCabe Evans’s business card.

Although, at that point, Abela had not yet been read his

Miranda warnings, the Fifth Amendment’s implied right to

counsel was triggered because Abela was being subjected to

custodial interrogation by Sergeant McCabe. Accordingly,

this case differs from those in which a request for counsel

preceeding Miranda warnings is deemed ineffective. See,

e.g., Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.), cert.

denied, 530 U.S. 1283 (2000) (request for a lawyer when

suspect was not in custody and was told that he was free to

leave did not render subsequent admissions inadmissible).

But the parties do dispute whether or not Abela’s request

for counsel was clear and unambiguous such that the Edwards

protections were triggered and the police were compelled to

cease questioning immediately. In Davis, the defendant was

informed of his right to remain silent and to have an attorney

16 Abela v. Martin No. 00-2430

present during questioning, and he waived those rights.

Davis, 512 U.S. at 454. However, approximately one-and-ahalf hours into the interview, the defendant stated, “Maybe I

should talk to a lawyer. Id. at 455. Investigators immediately

inquired whether the defendant was “asking for a lawyer,” or

whether he was “just making a comment about a lawyer,” and

the defendant responded: “No, I’m not asking for a lawyer . . .

No, I don’t want a lawyer.” Id. (internal quotation marks

omitted). On appeal, the defendant argued that he had

invoked his right to counsel and that, therefore, police

questioning should have ceased. But the Supreme Court

concluded that the defendant’s statement – “Maybe I should

talk to a lawyer” – was ambiguous, and not sufficiently clear

such that a reasonable police officer in the circumstances

would have understood the statement to be a request for an

attorney. Id. at 462; see also Ledbetter v. Edwards, 35 F.3d

1062, 1070 (6th Cir. 1994) (holding that the defendant’s

statement that “it would be nice” to have an attorney was not

a clear and unambiguous request for counsel). Furthermore,

the investigators’ questions had helped clarify that Davis was

not, in fact, requesting an attorney. Id. at 461. (“Clarifying

questions help protect the rights of the suspect by ensuring

that he gets an attorney if he wants one, and will minimize the

chance of a confession being suppressed due to subsequent

judicial second-guessing as to the meaning of the suspect’s

statement regarding counsel.”).

Respondent contends that Abela’s case is identical to

Davis, because, when Sergeant McCabe began questioning

Abela, he responded by stating, “maybe I should talk to an

attorney by the name of William Evans.” Respondent argues

that Abela’s use of the word “maybe” is dispositive. We

disagree, because in this case, unlike in Davis, the

circumstances surrounding the statement were such that “a

reasonable officer would have understood” that Abela was

clearly and unequivocally invoking the right to counsel.

Abela did not merely say, “Maybe I should talk to an

attorney,” as did the defendant in Davis. Rather, Abela

named the specific individual with whom he wanted to speak
No. 00-2430 Abela v. Martin 17

and then showed Sergeant McCabe the attorney’s business

card. McCabe said he would call Abela’s attorney for him

and left the room presumably to do so. Although our inquiry

is an objective one, id. at 459, McCabe’s actions confirm that

a reasonable officer would understandAbela’s statement to be

a clear request for counsel. 

The events surrounding Abela’s statement sharply contrast

with the facts in Davis, where the suspect followed his

purported request for counsel with a statement indicating that

he was not asking for counsel. In our case, the events

surrounding Abela’s request corroborate the unequivocal

nature of that request. Accordingly, we reject Respondent’s

contention that the word “maybe” be viewed in isolation, and

as dispositive of the question before us. Moreover, as we

have determined in other cases, language that might be less

than clear, when viewed in isolation, can become clear and

unambiguous when the immediately surrounding

circumstances render them so. See Kyger v. Carlton, 146

F.3d 374, 376 (6th Cir. 1998) (finding an unequivocal request

for counsel where the defendant stated that “I would just as

soon have an attorney,” in response to an officer’s asking

him: “Would you answer some of our questions, without an

attorney present?”). We note that a court’s use of surrounding

circumstances to evaluate the clarity of a suspect’s request for

counsel neither is precluded by nor alters the Supreme Court’s

decision declining to adopt a rule requiring officers to ask

clarifying questions in these circumstances. Davis, 512 U.S.

at 461-62.

After Abela requested counsel, the police were required to

cease questioning him until he had a lawyer present. The

police’s failure to cease questioning Abela – that is, both

(1) Sergeant McCabe’s returning to Abela, reading him his

Miranda rights, and proceeding to interrogate him at the

hospital, and (2) the police questioning that continued in the

morning, at the police station, after Abela was released from

the hospital – violated Abela’s right to counsel, the contours

of which are clearly established by federal law and Supreme

18 Abela v. Martin No. 00-2430

Court precedent. Minnick v. Mississippi, 498 U.S. 146, 153-

54 (1990). Furthermore, because Abela’s statements were

self-incriminating and among the most significant evidence

marshaled against him by the state, we do not find their

admission into evidence harmless.

Finally, our decision is not altered by the fact that, after

requesting counsel, Abela wasread hisMiranda rights, signed

a waiver of them, and proceeded to make a statement at the

hospital and at the police station (where, although not re-read

his Miranda rights, he was asked whether he “remembered”

them). As just discussed, when a suspect invokes his Fifth

Amendment right to counsel, police questioning must cease

until counsel is present. A suspect may waive his Fifth

Amendment right to counsel and the Edwards protections

after counsel has been requested, but only if the suspect

himself has initiated the conversation or discussions with the

authorities. Minnick, 498 U.S. at 155-56. The evidence here

shows that Abela did not initiate conversation with the police.

Rather, he gave a statement only after Sergeant McCabe

returned to the room, read him his Miranda rights, and

resumed questioning. In Arizona v. Roberson, 486 U.S. 675

(1988), the Supreme Court explained that the bright-line,

prophylactic Edwards rule protects against the inherently

compelling pressures of custodial interrogation by creating a

presumption that any subsequent waiver of the right to

counsel at the authorities’ behest was coercive and not purely

voluntary. Id. at 685-86. Moreover, the Supreme Court

expressly rejected the contention that the fresh issuance of

Miranda warnings, after the suspect requested counsel, would

overcome the pressures created by the custodial nature of the

situation. Id. at 686; see also United States v. Hall, 905 F.2d

959, 961, 964-65, (6th Cir. 1990), cert. denied, 501 U.S.

1233 (1991) (holding that once an accused expresses a desire

to deal with police only through counsel, a presumption is

created that any subsequent waiver of the right to counsel at

the authorities’ behest is coercive and not purely voluntary;

invoking Roberson in rejecting the proposition that “a fresh

set of Miranda warnings would ‘reassure’ a suspect who had
No. 00-2430 Abela v. Martin 19

been denied counsel” that “his rights would remain

untrammeled.”). 

Accordingly, because we find that Abela’s Fifth

Amendment right to counsel was violated and the state

courts’ orders rejecting this claim are contrary to clearly

established federal law, as determined by the U.S. Supreme

Court, we grant Abela’s request for habeas relief on this

ground.

2. Whether Abela’s Statements Were Unknowing and

Involuntary Due to His Physical and Mental

Condition

In addition to arguing that his statements to the police were

inadmissible because they were elicited in violation of his

Fifth Amendment-based right to counsel, Abela also contends

that the statements were unknowing and involuntary because

he was intoxicated, in pain, and on pain medication during

police questioning.

The state bears the burden of proving that a defendant

“voluntarily, knowingly, and intelligently waived his right to

silence and counsel.” United States v. Bentley, 726 F.2d

1124, 1126 (6th Cir. 1984). This Court uses a “totality of the

circumstances” to determine whether a petitioner’sstatements

were involuntary. Brown v. Illinois, 422 U.S. 590 (1975).

The Supreme Court has stated that, in conducting this test, a

court should consider factors such as: (1) police coercion;

(2) length of interrogation; (3) location of interrogation;

(4) continuity of interrogation; (5) the suspect’s maturity;

(6) the suspect’s education; (7) the suspect’s physical

condition and mental health; and (8) whether the suspect was

advised of Miranda rights. Withrow v. Williams, 507 U.S.

680, 693-94 (1993). Coercive police activity is a necessary

element for finding that a confession was involuntary.

Colorado v. Connelly, 479 U.S. 157, 167 (1986).

20 Abela v. Martin No. 00-2430

When Abela arrived at the hospital, he was injured;

specifically, his nose was broken. In addition, Abela

contends that he drank alcohol in large quantities the night

before. However, there is no evidence in the record that he

was still drunk during his interrogations or that his mental

faculties were in any other respect impaired during

questioning as a result of alcohol or medication. Still, the

record makes clear that Abela was physically uncomfortable

– indeed, his taped interview at the police station had to be

stopped briefly because Abela was vomiting from the effects

of the previous night’s alcohol.

Abela has failed to demonstrate that the state court

decisions rejecting this claim were contrary to, or involved an

unreasonable application of, clearly established federal law,

as determined by the U.S. Supreme Court. As a preliminary

matter, he has presented no evidence of police coercion.

More importantly, although we are sympathetic to Abela’s

uncomfortable state in the hospital and police station, Abela

has not shown that the facts of this case are equivalent to

those in Mincey v. Arizona, 437 U.S. 385 (1978), or Beecher

v. Alabama, 389 U.S. 35 (1967), where the U.S. Supreme

Court held involuntary the statements of wounded men. In

those cases, the petitioners’ injuries were more severe and

there was clear evidence of a coercive environment. In

Mincey, the petitioner was seriously wounded after being shot

by police during a narcotics raid on his apartment. He arrived

at the hospital “depressed almost to the point of coma,”

according to his attending physician. Mincey, 437 U.S. at

398. In addition, at the time of his interrogation, his

condition was still serious enough that he was in the intensive

care unit. Id. Mincey complained to the police officer that

the pain in his leg was “unbearable” and the record

demonstrated that he was “confused and unable to think

clearly about either the events of that afternoon or the

circumstances of his interrogation.” Id. Nevertheless, police

questioning continued. Moreover, while Mincey was being

questioned, he was “lying on his back on a hospital bed,

encumbered by tubes, needles, and [a] breathing apparatus”
No. 00-2430 Abela v. Martin 21

that a nurse testified was reserved for only the “more critical”

patients. 

Beecher involved an African-American petitioner accused

of raping and killing a white woman. He had fled into an

open field and was chased by police, who fired a bullet into

his right leg. One officer then pressed a loaded gun to the

petitioner’s face while another officer pointed a rifle against

the side of his head. The first officer then asked him whether

he had raped and killed a white woman. When the petitioner

responded that he had not, the officer called him a liar and

said, “If you don’t tell the truth I am going to kill you.”

Beecher, 389 U.S. at 36. The other officer then fired his rifle

next to the petitioner’s ear and the petitioner immediately

confessed. Five days later, in a prison hospital, petitioner’s

leg had become so swollen that he required an injection of

morphine every four hours (the leg eventually had to be

amputated). Less than one hour after one of these injections,

two Alabama investigators visited Beecher in the prison

hospital. The medical assistant in charge told the petitioner

to “cooperate” and, in the petitioner’s presence, asked the

investigators to inform him if the petitioner did not “tell them

what they wanted to know.” Id. In the course of a ninetyminute session, the investigators prepared two detailed

statements similar to the confession the petitioner had given

five days earlier at gunpoint. As the Supreme Court

explained, “[s]till in a ‘kind of slumber’ from his last

morphine injection, feverish, and in intense pain, the

petitioner signed the written confessions thus prepared for

him.” Id. at 37. 

Having studied the record on appeal with respect to Abela’s

physical and mental state during questioning, we do not find

his situation sufficiently analogous to the grave medical

conditions and coercive environments in Mincey and Beecher

to warrant relief. We therefore deny this claim. However, as

discussed above, we find Abela’s statements improperly

admitted on the ground that they were elicited in violation of

his Fifth Amendment right to counsel.

22 Abela v. Martin No. 00-2430

E. Prosecutorial Misconduct

In his next claim for relief, Abela contends that he was

deprived of his right to a fair trial and due process pursuant to

the Sixth and Fourteenth Amendments because the

prosecutor, in his closing argument, invented a conversation

between Abela and Ronald Wright. Specifically, the

prosecutor stated that, prior to Wright’s return to Allen

Howard’s house to retrieve his jacket, Abela told Wright:

“Ronnie, better take this [knife] when we go back. Ain’t

nobody going to kick our ass anymore. Let’s go back.” No

testimony offered at trial shows that Abela actually made this

statement.

In order to prevail on a claim of prosecutorial misconduct,

a habeas petitioner must demonstrate that the statements of

the prosecutor “so infected the trial with unfairness as to

make the resulting conviction a denial of due process.”

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In

determining whether a petitioner’s due process rights were

violated, this Court looks at the totality of the circumstances,

including:

the degree to which the remarks complained of have a

tendency to mislead the jury and prejudice the accused;

whether they are isolated or extensive; whether they were

deliberately or accidentally placed before the jury, and

the strength of the competent proof to establish the guilt

of the accused.

Kincade v. Sparkman, 175 F.3d 444, 446 (6th Cir. 1999). It

is improper for a prosecutor to argue facts not in evidence.

Berger v. United States, 295 U.S. 78 (1935). Here, the

prosecutor presented a hypothetical conversation between

Abela and Ronald Wright in an attempt to explain why the

two might have returned to the party after being told to leave.

At trial, Abela’s theory of self-defense was pitted against the

prosecution’s theory that Abela and Wright purposefully

instigated the violent brawl that resulted in Stanley
No. 00-2430 Abela v. Martin 23

Underwood’s death. As such, the prosecutor’s hypothetical

was crucial to the primary theme of its closing argument and

the theory of the case supporting the jury’s verdict.

Accordingly, and because evidence of Abela’s guilt was not

overwhelming, we must scrutinize the statement carefully.

We would be highly concerned if the prosecutor presented

the conversation as factual. But, here, the prosecutor prefaced

this part of his argument by advising the jury: “and exactly

what was said probably we’ll never know but probably went

something like this . . . .” Because of this preface, we are

persuaded that the jury would not have been misled into

believing that the prosecutor was quoting from an actual

conversation, but that he was rather presenting beliefs he

would have the jury infer from the evidence presented at trial.

Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000). In

addition, when charging the jury, the trial judge reminded

jurors that they “can only consider the evidence that has been

properly admitted in the case” and that “[e]vidence includes

only the sworn testimony of the witnesses” and any admitted

exhibits, but that “[t]he lawyers’ statements and arguments

are not evidence.” 

Taken together, these factors persuade us that the

prosecutor’s statement, when viewed in light of the entire

trial, did not deprive Abela of his due process rights.

F. Ineffective Assistance of Trial Counsel

Abela’s next claim is that his trial counsel was ineffective

for failing to object to the untimeliness of the prosecution’s

motion for reconsideration, which sought to reinstate the

concealed weapon charge, previously dismissed by the trial

judge. To establish an ineffective assistance of counsel claim,

a habeas petitioner must show that: (1) counsel’s performance

was deficient; and (2) counsel’s deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687

(1984). 

24 Abela v. Martin No. 00-2430

On November 5, 1990 – more than fifty days after the trial

court dismissed the concealed weapon count – the prosecutor

filed a motion for reconsideration of the dismissal order,

seeking to reinstate the charge. Mich. Ct. Rule 2.119(F)(1)

provides that:

Unless another rule provides a different procedure for

reconsideration of a decision . . . , a motion for rehearing

or reconsideration of the decision on a motion must be

served and filed not later than 14 days after entry of an

order disposing of the motion.

Because the prosecution filed its motion for reconsideration

well outside the time limit prescribed by Michigan law, Abela

contends that his counsel’s failure to object to the untimely

motion constituted deficient performance. 

However, M.C.R. 2.119(F)(2) states that “No response to

the motion [for reconsideration] may be filed. . . .” In other

words, the Michigan Court Rules did not permit Abela’s trial

counsel to file an opposition to the state’s motion for

reconsideration. Accordingly, we cannot say that Abela’s

trial counsel was constitutionally deficient for failing to

oppose the state’s motion for reconsideration. It was

incumbent on the trial court to reject the motion as untimely,

if it saw fit to do so.

G. Ineffective Assistance of Appellate Counsel

Lastly, Abela contends that his appellate counsel was

ineffective for failing to raise on direct appeal in the state

court the full set of claims presented in his habeas petition –

that is, the claims we have discussed to this point. Abela

points to the alleged ineffective assistance of appellate

counsel as “cause” for any procedural default of his claims in

state court. See Murray v. Carrier, 477 U.S. 478, 488 (1986)

(holding that if a petitioner can show that he received

ineffective assistance of appellate counsel, this may excuse

his procedural default of claims in the state court). 
No. 00-2430 Abela v. Martin 25

We need not determine whether the alleged ineffective

assistance of appellate counsel would constitute “cause” for

any procedural default because, as we determined in Part II,

B. above, Abela’s habeas claims were not procedurally

defaulted in the state courts. 

III. CONCLUSION

On the basis of our determinations above – (1) that we are

not precluded from considering Abela’s claims on the ground

of procedural default and (2) that statements made by Abela

and admitted at trial were unconstitutionally elicited by police

after he invoked his right to counsel – we REVERSE the

district court’s judgment and REMAND to the district court

with instructions to grant the writ of habeas corpus, unless the

state elects to retry Ablea within ninety days of the date of

this opinion’s entry.

26 Abela v. Martin No. 00-2430

______________________________________________

CONCURRING IN PART, DISSENTING IN PART

______________________________________________

SILER, Circuit Judge, concurring in part and dissenting in

part. I concur in all of the conclusions by the majority, except

those conclusions that the petitioner, Kevin Mark Abela, was

denied his constitutional right to counsel under the Fifth

Amendment, and that a writ of habeas corpus should issue

unless the state elects to retry Abela for the same charges.

The constitutional violation which the majority finds is the

introduction at trial of a statement allegedly made in violation

of Miranda v. Arizona, 384 U.S. 436 (1966). I would find

that there was no constitutional violation. Therefore, I would

affirm the district court in denying the writ.

Abela’s statement to the officers before he was advised of

his Miranda rights was “maybe I should talk to an attorney by

the name of William Evans.” Sgt. Michael McCabe offered

to call Evans or another attorney, but before Sgt. McCabe

attempted to call Evans or anyone else, he proceeded to

advise Abela of his Miranda rights. It was at this point when

Abela said that he would tell them everything, and did not ask

for the right to consult with Evans or any other attorney. As

the district court found, Abela’s statements do not constitute

an unequivocal request for counsel as required under Davis v.

United States, 512 U.S. 452, 458-59 (1994). In Davis, the

accused made a similar request that “maybe I should talk to

a lawyer.” The Court held that was not an unambiguous

request for counsel. I would not hold that a specific naming

of an attorney in this case distinguishes the facts sufficient to

find a Miranda violation. See Ledbetter v. Edwards, 35 F.3d

1062, 1070 (6th Cir. 1994) (holding that the statement that “It

would be nice” to have an attorney was not a clear and

unambiguous request for counsel). Although the majority

opinion relates that Abela handed Sgt. McCabe a business

card for Evans and that McCabe left the room with the card to

phone the attorney, the district court did not find those facts.
No. 00-2430 Abela v. Martin 27

Instead, Abela testified that the card was in his wallet, which

was in another room. He said that McCabe left the room after

he told him about the card, but McCabe did not say anything

about the card nor the attorney after that. Sgt. McCabe

testified that Abela pulled out a business card from his wallet

and showed it to McCabe, but McCabe did not say anything

about leaving the room with the card to phone the attorney.

Therefore, I would find that the facts determined by the

district court below were not clearly erroneous, and I would

uphold the decision by the district court that no Miranda

violation occurred. 

In sum, I would affirm the decision of the district court in

denying the writ of habeas corpus.