1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ATION: 2004 FED App . 0283P (6th C ir.) File Name: 04a02 83p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
K EVIN M ARK A BELA , Petitione r-Appell ant,

v.

W IL LI AM M ART IN , Director, Michigan Department of Correct ions, Respondent-Appellee. X

- - - -
> , - - - - - N No. 00-2430

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 99-72095—Robert H. Cleland, District Judge.

Argued: April 21, 2004 Decided and Filed: August 27, 2004

Befor e: SIL ER, COLE, and CL

AY, Circu

it Judges.

_________________ COUNSEL

ARGUED: James Sterling Lawrence , Detroit, Michigan, for Appellan t. Wil l iam C. Campbell, OFFICE OF TH E ATTORNEY GENERAL, L ansing, Michigan, for Appellee. ON BRIE F: James Sterling Lawrenc e, D etroit, Michigan, 2 Abela v. Martin No. 00-2430

for Appellant. William C. Campbell, OFFICE OF THE ATTORNEY GENER AL, Lansin g, Michigan, for Appellee.

COL E, J., delivered the opinion of the court, in which CLAY, J., joined. SI

LER, J. (pp. 26-2 7), deliv ered a s eparat e opinion concurrin

g in par t and disse

nting in p art.

_________________ OPINION

_________________ R. GUY COLE, JR., Circuit Judg e. Petitioner Kevin Mark Abela, a f

orm er Michigan prisoner who was convicte d of manslaughter

and carry

ing 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 Ap ril 26, 1999. Pe titioner c ontends that: (1) hi s Fifth Amendmen

t rights were v iolated when police elicited statemen ts from him following his request for counsel and when they interrogated him while he was a lleged ly intoxicated, in pain, and on pain medicat ion ; (2) his due process and Sixth Amendment right s we re viola ted beca use of prosecutorial misconduct at trial; and (3) he was denied the ef fecti ve assistanc e of both t rial and appella te counse l. Resp on dent

contends that Abela’s claims are barred by procedural default.

Becau se we find that Abela ’s claims are not barred by procedural default , and that his Fifth

Amendmen

t c l aim
c oncerning

statemen ts elicite d after

he invoke d his rig

ht t o counse l i s meritorious, we REVERSE the district court’s judgment and RE MA ND to the distr ict cour t with instructions to gran

t the writ o f habea s corpus, unless the state electsto retry Abe la within ninety day s of the date

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

I. BACKGROUND

A. Factual Bac

kground

Abela’s convicti ons stemme d from t h e stabbing death of Stanley Underwood a

t a p arty in the ea

rly morning hours of May 19, 1990. A

bela ar rived at a party at the home of Allen Howard in Roches ter Hills, Michiga n, sometime

during t h e eveningo f 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 drive wa y o f the home. Abela confronted Sullivan and an argument en sued; i t turned in to a fistf ight. After the fight broke up, Sullivan ran into the house, where he told his older brother , Jerry , that some one had b eaten hi m up.
A secon d fight began when Jerry Sullivan and Allen Howard ran outsi de to conf

ront Abe la. Abela ’s nose wa s broken in the fight, which

ended with Howard

holding A

bela downon the ground. Howard promised Abela that hewould rele ase h im if he left the party immediate ly. Abela then lef t the part y with Wright

. Uponreaching their car, however, Wright realized that he had forgotten his jac ket at the party, a nd he returned to the house to retrieve it. Abela waited at the edge of thedr iv ew ay. Su dd en ly, however, several people from the party, including Stanley Underwood, attacked Abela, knocked him down, and surrounded

him. Abela was kic ked and punched in the face and body. Among the

grou p of a ttackers was Stanley Un derwood, who, during the course of the brawl, straddle d Abela’s chest. A

bela thereupon drew a knife from a sheath on h is belt and s tabbed U

nderwoo d in the chest and le ft arm three times. Und

erwood d ied a shor t time later from

the stab wounds.

Abela fled to a friend’s house, where he ca lled 911 and told the operator that he had stabbed someone. After me eting the police back

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

room for treatme nt. While at the emergency 4 Abela v. Martin No. 00-2430

room, but before being treated for hi s injuries, Oakland County Police Sergeant Michael McCabe began interrogating Abela about the events leading up to the stab bing. Ab ela responded

by stating, “ma

ybe I should talk to an attorney by the name of Wil liam E vans,” and he showed Sergeant McCabe Evans’s business card. Sergeant McCabe agreed to callEvans for Abela

and left the room, presuma

bly to contact Evans. Upon returning, McCabemade no mention of Evans, and procee ded to re ad Abela

his Miranda rights. Abela then signed a form waivi ng tho se righ ts and gave a statemen t to Sergeant McCabe. After being

treated at the hos

pital, Abe la
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 de fense. The statemen ts were admitted at trial and used by the prosecution against Abela.

B. Procedur

al History

Abela was cha rged w ithsecond degree murder a nd carry ing
a concealed weapon . P rior to tr ial in the O akland Co

unty Circuit Court, Ab ela’s co unsel filed a motion to dismiss the
conce aledw eapon 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 t h e concealed weapon charg e on September 12, 1990. On November

5, 1990 – ou

tside the f

ourteen -day

time limit prescribed

by Mich. Ct. Rule 2. 119 (F)(1) – the prosecution file d a motion for reconsideration of the dismissal. Abela’s counsel did

not obj ect to th is mo tion . On

June 3, 1991, the tria l judge g

ranted t he prose cution’s motion fo r reconsideration

and reinstated the concealed weapon charge.

The trial commenced in June 1991. During closing argume nts, the prosecutor presented a hy pothetical conversation

between Abe la and Ronald Wright. The prosecutor stated:No. 00-2430 Abela v. Martin 5

Do you think when

they [Abela an

d 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 thro wn out. They’ve been humiliated . They’ ve been embarrassed. Not only that, Ron Wright say s, “My damn coa

t’s b ack there. Let’s go g et 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 bac k.”

This statement is the basis for Abela’s pro secuto rial misconduct claim, which will be discussed below.

Abela was convicted by a jury

of v olunta

ry manslaug

hter and carry ing a concealed weapon on July 24, 1 991. He was sentenced to se ve n t o f

if te en ye ar s’ imprisonment for the voluntary manslaug

hter cou nt, and a concurrent

forty months t o five yea

rs of imprisonment for carry ing a conceale d weapon.
Abela appeale d his convi ctions, raising three issues in the Michigan Court of Appeals on February 17, 1992. The three issues were: (1) that his sentencewas dispr oportiona te 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 raise d in its case-in-chief. The Michigan Court of Appeals affirmed Abela’s conviction and sentence in an unp ubli shed disposition. People v

. Abela , No. 144005 (M ich.Ct.Ap p. July 22, 1994). The Michigan Supreme C ourt 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).

InAugust 1996, Abela filed a mot ion fo r relief from judgment in the Oakland County Circu i t Court, ra

ising six claims: (1) that h is statement at the hospital was unconstit u tion ally elicited and admitted because Sergea nt McCabe ignored

Abela’s request for an attorney ; (2) that his 6 Abela v. Martin No. 00-2430

statement at the hospital was involun t ary bec ause he was injured, under the influence of alcohol, a nd on pain medicationat the time of questioning; (3) that the trial court improper ly granted the prosecution’ s un timely motion to reconsider

the dismissal of the concealed weapon charg e; (4) that the prosecut

or unfai r ly p rejudiced Abela by presentingwitness testimony inhis closing argument that was unsupported

by t he record; (5) that A

bel a’s trial counsel provided ineffe ctive as sistance ; and (6)that Abel a’s appe llate counsel provided ineffective assistance, constituting “g ood cause” for Abe la’s fai lure to ra ise the other claim s in his direct appeal. The motion was denied “for lack of mer it on the groun ds 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 Appea ls, whichlikewise

denied hi s petiti on “ for lack of merit in the grounds presented.” People v . Abela
, No . 200930 (Mich.Ct.App. Ju ly 22, 1997). On August 9 , 1997, Ab ela again raised these six issues in hi s d el aye d application for leave to appeal to the Michigan Supreme Court, which denied his petition ina summary disposition, stating: “Def endant has failed to meet the burden of

establish ing enti tlement to relief under M.C.R. 6.508(D). People v . Abela , 457 Mich. 880, 586 N.W.2d923 (Mich. 1998). On August 3, 1998, Abela filed a petition for certiorari with the U.S. S upr eme Court, which
wa s deniedon October 19, 1998. Abela v. Michigan , 525 U.S. 948 (1998).

Abela was released

to parole status on March 16, 1998, and discharged

from par ole on March 16, 2000, which terminated his seven to fifteen y

ear sentence for

manslaughter. His three to five year

sentence for carry

ing a concealed weapon

ended
onOctober

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, ra

ising mos t of the same

claims as

were in h

is mo tion for relief from judgment (except f

or his cla im that the

tr ial court er

red in reconsidering

its dismissal of

the concealed weapon charg e). Sp ec if ic al ly, Abela a sserted

that: ( 1) his statement to policeNo. 00-2430 Abela v. Martin 7

at the hospit

al w as unconstitutionally elicited and admitted because he had invoked his right

to counsel; (2) his statement at t he hospital was involuntary and ina dmissible because he
was injured, intoxic a ted, and on pain med ication a t the time of questioning; (3) the prosecutor enga ged in miscond

u ct during closing argume

nt; (4) trial counsel was ineffective for fai ling 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 pr eceedi ng clai ms.
The district cou rt denied the petition for habeas relief on Octob er 31, 2000. It held that Abela’s claims wer e n o t procedu rally defaulted, but that they were without merit. This Courtgranted

a certificate of appealability onApril 20, 2001, and onOctober 30, 2002, denied the petition as untimely, and
ac co rd in gl y, decline d to addre ss the merit s. 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 judgmen t, holding t

hat Abela ’s habea s petition was timely

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

nded to this pa nel for consideration of the procedural default question and the merits, which we turn to
now.
II. ANALY SIS

A. Jurisdiction and Mootnes s
W e reaffi rm our prior determ inati ons co ncerni ng bot h subject matter jurisdiction and mootness. Abela , 309 F.3d at 3 43-44. This Court has subject matter ju risdiction ove r Abela’s habeas pet ition, pursuant to 28 U.S.C. § 2254(a), becaus e Abela was “in custody ” at the time he filed t

h e petition with the di strict co urt o n April 26, 1999. Jones v. Cunningham
, 3 71 U.S. 236, 242 (1963) (holding that petitioner who was on pa

role was still “in custody” for ha

beas purposes). Abela’s

releas e from custody and the subse quent conclusion of his pa role term, after the filing of his habeas 8 Abela v. Martin No. 00-2430

petition, do n ot re nder moot his appeal from the district court’s denial of the petition. He continues to satisfy Article III’s “case or contro ver sy” require ment because of the continuing collateral consequences to a wrong ful criminal conviction. Spencer v. Kemna , 523 U.S. 1, 8 (1998).

B. Whether

Abe la P roc edu ral ly D efa ulte

d on t he C laim s in His Habeas Petition Respo ndent

contends that because the claims raised b y Abela in his habeas petition were raised for the f irst ti me in his state post-conviction

motion for relief from judgement – and not on direct appeal – federa l review of his cla

ims is barred by proc edural de fault. It is well-settled that when a state pri soner ha s “defa

ulted his f

ederal claims in state court pursuant t o an independent and adequate state proce dural ru le
, federal habea s review of the claims is barred” unless the petitioner can show cause for the default and pr ejudi c e because of it, or a fundamental miscarriage of jus tice. Coleman v. Thompson , 501 U.S. 722, 750 (1991).

For the doctrine of procedural default to apply, there m

ust be a state procedu ral rule applica ble to the pet

itioner’ s claim, and the petiti oner must

have fa iled to comply

with that rule. Warner v. Un it ed States , 975 F.2d 1207, 1213-14 (6th Cir. 1992), cert. denied, 507 U.S. 932 (1993). In ad dition , the state court must have enforced the state proce dural rule to bar the petitioner’s claim. Specifically , the last state court from whichthe petiti oner soug ht revie w must have invoked the state procedu

ral rule as a basi s for it s deci sion to reject reviewing the petitioner’s federal

claims. Coleman
, 501 U.S. at 729-30. Lastly , the state proceduralrule must constitute an “ad equa te and indep endent” state g round on w

hich the s tate
can rely to forec lose review of a

federa l constitut ional cla im. Maupin v. Smith
, 785 F.2d 135, 138 (6th Cir. 1986). Astate procedural rule is “adequate” if it is firmly established and regula rly followed at the time it is applied. Willia ms v. Coyl e , 260 F.3d 684, 693 (6th Cir. 2001). A state pro cedura l rule is
an “ independent” ground for prec luding fede ral habeas revie wNo. 00-2430 Abela v. Martin 9

if the state courts a ctually relied on the rule

to bar the

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

and adequa te state g round only

if the state court rendering judgment in the case clearly and ex pre ssly stated that its judgment rested on a procedural bar.” Simpson v

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

Wheth er a p etitioner’s federal habeas claim is barre d 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. 1 991) . The last state court fromwhich Abe la sough t review, the Michigan Supre me Court, denied relief in a standard order s tatin g that: “Defe ndant

has faile d to meet the burden of estab lishin g entitle ment

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 provis ion set forth in M.C.R . 6.508(D )(3). M. C.R. 6.508 ( D) broadly per

tains to motions for relief from judgmen t, and sta tes in rel evant pa

rt: (D) Entitlement to Relief. The defendant has the burden of establishing entitlem ent to the relief requested. The court may not gr

ant relief to the defendant if the motion (1) seeks r

elief from a judgment of conviction and sentence that still is subj ect to challenge on appeal pursuant to subchapter 7.200 or subchapter 7.300; (2) allege s grounds for re lief whic h were d ecided a gainst the defenda

nt in a prior appeal or proce eding u

nder this subchap te r, un less the d efenda nt establi shes that

a retroact ive change in the law has undermined the prior decision; (3) allege s ground s for relief, other than jurisdictional defect s, whichcould have been raised on appeal from the 10 Abela v. Martin No. 00-2430

convictionand sente

nce or in a prior moti on u nder this subchapter, unless the defendant demonstrates (a) good ca

use for f ailure to raise such grounds on

appeal or in the prior motion, and (b) actual prejudice from thea lleged irregularities that support the claim for relief. . . .

As noted a

bove, our task is to de

termine w

hether t he state court “clearly and expressly stated that its judgment re sted on
a procedur al ba r.” Sparkman , 94 F.3d at 202. Here, the Michigan Supreme Court

only referenced M.C.R. 6.508(D), gen e ra ll y, as the basis for deny ing Abela leave to appeal the judgment of the Mic

higan Co urt of App eals. As s een just above, M.C.R. 6.508(D) states that “[t]he defen dant has the burden of establishing entitlement to the relief requested.” Alth ough 6.508(D)(1), (2), and (3) list specific proce dural grounds for denying

a defen dant rel ief from

judgmen t, these procedural grounds are n ot the exclusive grounds for which
a court may deny

relief pursuant to M.C.R. 6.508(D). A court may deny relief f rom judg ment unde

r 6.508(D ) for th e non

procedural reason

that the defe ndant simp ly f

ailed to me et his burden of “esta blishing entitleme

nt t o the relief requested.” As such the Michigan Supreme Court ’s cita tion to M.C.R

. 6.508(D) inits order denying Abela leave to appeal does not demonstr ate that that court denied him leave to appeal on the basis of a procedura l default, much less on the procedural ground describ ed in M.C.R. 6.508(D)(3), which Respondent urges o n 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 defen dant “fa iled to ‘meet the burden of establishing entitlem ent to relief under M.C.R. 6.508(D)’” constituted

invocation of

“an inde pendent a nd adequ ate state procedural rule” sufficient to prevent federal habeas review. Simpson , 238 F.3d at 407-08. Inthat case, the petitioner filed two motions for

collateral review in the state court followingNo. 00-2430 Abela v. Martin 11

his direct appeal. The trial court granted partial relief on the first motion and the petitioner never appe a led the a dverse portion of that

ruling. The state

trial judg e explicitl

y denied the second m otion on procedural grounds, noting that Simpson raised no issues th at h ad not been p reviousl y addressed by t he trial c ourt and t

he Michig an Co urt of Appeals. Id. at 403. In addition, thecourt briefly addr

essed and rejected Simpson ’s argu ments on the merits. Simpson thenfiled an application for leave to appeal to the Michigan Courtof Appea

ls, raisin g the sa me claims he raised in the second motion for collateral review before the trial court. He also conteste d the tria l court’s proce dural de fault determination. The Court of Appea ls denied that application
onthe basis

of M.C.R. 6. 508(D). Si mpson then applied for leave to appeal to the Michigan Supreme Court, based on the
same issues he had raised in the Court of Ap peals. Th is 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 t rial court denied post-con viction re lief both on th e merit s and on the ground of procedural de faul t, and subsequently, both the Michigan Court of Appeals and

the Michig

an Supre me Court denied Burroughs’s application for leave to appe al, s tating that he faile d to establish

“entitle ment for r elief under M.C.R. 6.508(D).” Burroughs , 282 F.3d at 412.

But the Simpson an d Bur roughs rationa le is inapp licable here. In ou

r case, th e la st reasoned state court judgment before the Michigan Supre me Court’s order – which was the Michigan Court of Appeals’ decision deny

ing 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, thetrial court had previous ly

denied the motion for post-conviction re lief “for lack of merit onthe grounds presented.” People v . Abela , No. 90-101083 (Oaklan

d 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 ba r here, but rather repeat edly ruled on the merits. The procedural circumstances inthis case

are, the refore , materia

lly d iffere nt from th ose i n Simpson and Burroughs, where the lower sta te court s actual ly invoked a procedural bar, making it clear er that the Michigan Supreme Court was also invoking such a bar when it referred to M.C.R. 6.508(D). But give n that all o f the lowe r state court s adjudica

ted Abela ’s case

on the mer

its, it is not a

t al l clear that the Michigan S upre me Court’s summary order relies on a procedural bar , a s opposed to the non-procedural
reason that Abe la simply failed to meet his burden of “establishing entitleme

nt to the re lief req

ueste d .” Indeed, given the line of pr

ior merit s determinations in Abela’s case, it is just as reas onable to

presume that the Mi chigan

Supreme Court’s refer

ence toM.C.R. 6.508(D) signaled its agreement with the lower

courts’ merits de

terminat ions as it is

to presume that the r

efere nce sig naled, f or the fir st time in thi s case, the invocation of a procedural ba r.
Inshort, the procedural facts of Simpson and Burroughs are distingu ishable from our case. The fa cts in Simpson and Burroughs inspired

great er cer tainty th at the Michigan Supreme Court actual ly rel ied on a pr ocedura l bar in rendering its judgment. No such clarify ing indic ators are present here. Moreover, Simpson and Bur roughs do not purport to eviscerate our Circuit’s rule that a state proce dural rule is an“independent and adequate” state ground only

if the state court re

ndering judgme nt 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 ho ld that we should divine procedural default from any an d all references to M.C

. R. 6.508(D) where such default may actually h ave occurred, but where the proce dural history raises genuine questions as to the state court’s actual reliance on a proc edural b ar. To su gges t that those

cases di d so hold is to ac ce pt th at th ey i nv er t t he in qu ir y i nto whet her federal review of the ha beas cla ims is perm

itted. Tha t is, pursuant to Maupin v. Smith , 785 F.2d 135 (1986), whether thepetitioner actu ally fai led to comply with a proce dural rule is only theNo. 00-2430 Abela v. Martin 13

predicate, notthe ultimate, question b efore u s. The ulti mate legal questions are whether the court relied on and expr

essly invoked that proc edural b ar and w hether i tis an “independent and adequa te ” g round for precluding review. See Williams

v. Coyle
, 260 F.3d 68 4, 693 (6th Cir. 2001). If a state cour t is slurrin g its wor ds, our job

is not to guess what it might be saying, but rather to d emand th at it en un ci at e m or e c le ar ly. Here, because of num er ous fact ors – the M ichiga

n Supreme Court’s refer

ence on ly to M.C.R. 6.508(D), the absence of a clear and expre ss invocation of a procedural bar, and the pl au si bi li ty, based on

the prior state co urts’ mer its ruling s, that the Michigan Supre

me Court, too, grounded its decision ina non-procedural reason based on Abela’s failure to“esta bli sh [] entitlement to relief” – we cannot find that M.C.R. 6.503(D)(3), the state procedura l ru le urged by Responde nt, was actu

ally relied o n by

the Michigan Supre

me Courtinthis case. For the same reasons, we cannot find that M.C.R. 6.503(D) con sti tutes an adequate and independent basis for the state supreme court’s decision here.

Ac co rd in gl y, we hold that the claims raised by A bela in hi s habeas petition were no t 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. S tovall , 212 F.3d 940, 942 (6th Cir. 2000). However, federal review of the state court’s decision is governed by

the Antiterrorism and EffectiveDeath Pe nalty 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

onthe merit s in the state co

urt unles s the adju

dic at ion: “(1) resulted in a decisionthat was contrary to, or inv olved an unrea sonable applicationof, clea

rly established Federal law, as determined by the Supreme Court

of the United

States; or (2) res ulted in
a decision that was based on an unreasonable deter mination of the fac ts in light

of the ev

idence prese nted in t he State 14 Abela v. Martin No. 00-2430

court proceeding.”28 U .S .C . § 2 254 (d) (1) -(2 ). In Williams

v. Taylor , 5 29 U. S. 362 (2000), the Supreme Court determined that a

state court’s

decision is contrar y to clearly established

federal law

when it fa

ils 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. Indefining

“clear ly e stablishe d law,” the Supreme Court held that “rules of law are sufficien t ly clear f

or habeas purposes even whe

n th ey are

e xpressed in terms of a generalized standard rather than a s a bright-line rule.” Id. at 382. The Willia ms court further held t hat a state court
unreasonably

ap plies clearly e stablished Supreme Court precedent when i t corr ectly ide ntifi es the go vernin g legal principle in the case, but unreasonably applies that princ iple 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 Abel

a’s Statement

s Were Elic

ited in Violation of His Fifth Amendment Right to Counsel

Abela’s first cla

im conce rning hi s st at ements is that they should have be en suppre ss ed bec ause the y w ere elic ited in violation o f his Fif

th Amendme

nt right to counse l.

The Fifth Amendment to the U.S. Constitution guarantees that “no person . . . shall be compelled in any criminal case to be a witness a

gainst h imself.” Althoug

h the Fif

th Amendment

does not g

uarante e a rig

ht to counsel, in Miranda

v. Arizona , 384 U.S. 436 (1966), the Supreme Court held that incertain pretria l stage s – namely

, custo dial interrogation – the privilege against self– in crimination includes an implied rightto counsel. This rig ht is trig gered

when a su spect is interrogated

while “in custody ” or “otherwise

deprived of his freedom in any signific ant way.” Miranda , 384 U.S. at 444; California

v. Beheler , 463 U.S. 1121, 1126 (1983) (hol ding that suspec t’s voluntary appea rance and departure at police station for

questioning was not custodial interrogation). TheNo. 00-2430 Abela v. Martin 15

Supreme Court has broadly def

ined “interr ogat ion” as any police questioni

ng of a suspect i ncustody “reasonably

likely to elicit an inc rim inating response.” Rhode Is land v. In nis , 446 U.S. 291, 301 n.7, 302, n.8 (1980).

In Edw ar ds v. Arizona , 451 U.S. 477, 484-85 (1981), the Supreme Court esta

blished a bright- line rule t hat once a suspect is in custody and

invok es the right to counsel, law enforcement

may not furth er inter

rogate him until counsel has been made ava

il ab le, or unless the suspect initiates further conversations or exchanges with t he polic e. 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 r eference to an attorney that is amb iguous or equivoc al in that a reasona ble officer in li ght of the circumstances would have understood only that the su spect 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 inter

rogati on at the hospital when he expressed a d esire t o speak to

his attorney , William Eva ns, and then showed Serg eant McCabe Evans’s business card. Although, at that po int, Abela had not y

et been r ead his Miranda warnings, the Fifth Amendmen t’s implied ri ght to counsel was trigg ered be cause Abela wa s being s

ubjecte d to
cus todi al in te rr og at io n b y Se rg ea nt Mc Ca be . A cc or di ng ly, this case differs from those in w hich a request for counsel preceeding Miranda warning s is deeme d ineffe ctiv e. Se e, e.g., Burket v. Angelone , 208 F. 3 d 172, 198 (4th Cir.), cert. denied
, 530 U.S. 12 83 (2000)(reque st for a la wyer whe

n suspect was not in c ust ody

and was t

old that he

was fre e to leave did not render subsequent admissions inadmissible).

Bu t the p arties do

dispute whether or

not Abela ’s reque st for counsel was clear and

unambiguous such that the Edwards protections were tr

igge red and t he police were c ompelled

to
cease questioning immediately. I n 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 q

uestionin g, and he waive d those ri ghts. Davis , 512 U.S. at 454. However, approxima telyone-and-ahalf hours into the interview, the defendant stated, “Maybe I should talk to a lawye

r. Id. at 455. Inve stigators immedia tely inquired whether the defendant was “asking for a lawyer,” or whether he was “just

making a comment about a lawy er,” and the defendant responded: “No, I ’mnot asking for a lawy er . .

. No, I don ’t want a lawyer.” Id. (internal quotation marks omitted). On appeal, the defenda nt arg ued that he had invoked his right to counsel and that, therefore, pol ice questioning should have ceased. But the Supreme Court concluded that the defendant’s statement – “May be I should talk to a lawyer

” – was ambiguous, and not sufficie ntly clear suchthat a reasonable police off icer in the circumstances would have unde rstood th e statement to be a request for an at to rn ey. Id. at 462; see also Ledbetter v. Edwards , 35 F.3d 1062, 1070 (6th Cir. 1994) (h o lding that the defendant’s statement that “it would be nice” to have an attorney wa s not
a clear and unambiguous request for c ounsel). Furthermore, the investigators’ questions had helped clarify that Davis was not, in f a ct, requesting an attorney

. Id. at 461. (“Clarify ing questions help protect the rights of t he sus pect by ensur

ing that he gets an

attorne y if he wants one, and will minimize the chanc e of a confession being suppressed due to subseque nt judicial second-guessing as to the mea ning of the suspect’s statement regarding counse l.”). Respondent

contends

that Abela’ s case is

identica l to Davis , because, when Sergea nt McCabe began q

uesti oning Abela, he r espondedby stating, “ma ybe I should talk to an attorney by t he name of William Evans.” Respondent argues that Abela’s use of t

h e wor d “ma yb e” isdispo sitiv e. We disagree, because in this case, unlike in Da vis , the circumstances surrounding the sta tement were such that “a
reasona ble office r would ha

ve understood” th at Abela was clearly and uneq

uivocall y in vokin g the rig

ht to couns el. Abela did not merely say

, “May be I shou ld talk to an attorney,” as did the defendant in Davis. Rather, A bela named the specific individual with whom he wanted to speakNo. 00-2430 Abela v. Martin 17

and the n sho wed Serg eant McCa be the at torney ’s busine ss card. M cCabe sa

id he woul d call Abe la’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 reasona ble offic er would

understa nd Abela’ s statement to be a clear request for counsel.

The events surround

ing Abe la’s stat

ement sha rply contras t with the facts in Davis , where the sus pect fol lowed his purported request for counselwith a statement indicating that he was not a skin g for coun sel. I n our cas e, the ev ents
surroun d ing Abela’s request corroborate the une quivocal nature of that

request. Accordingly, we reject Respondent’s contentionthat the word

“maybe” be viewed in isolation, and
as disposi tive of the question before us. Moreover, as we have de terminedin other c ases, la nguag e that mig

ht be less thanclear, when viewed in isolation, can become clear and unambiguous when th e immedia telysu rroundin g circu mstances render them so. See Kyger v. Carlton , 146 F.3d 374, 376 (6th Cir. 1998) (finding an unequivo cal req

uest for counsel where the defendant stated that “I woul d just as
soon have an attorney ,” in r esponse to an officer’s asking him: “Would you an swer some of our questions, without an attorney present?”). We note that a court’s use of surrounding circumstances to evalua

te the clarity of a

suspect’s request for counsel neither is precluded by nor alters the Supreme Court’s decisiondeclining to adopt a rule requiring off icer s to ask clarifying questions inthese circumstances. Davis , 512 U.S. at 461-62.

After Abela requested

counsel, the police were re quired to
cease questioni

ng him unt

il he had a

lawy er pres ent. The pol ice’s failure

to cease questioni

ng Abel a – that is, both (1) Serge ant McCab e’s retu r ning to A

bela, re ading h

im his Miranda rights, and proc eeding to inte r rogate him at the hospital, and (2) the police questioning that continued in the morni ng, at the police station, after Abela was released from the hospital – violated Abela’s right to counsel, the contours of which are cle arly

established

by f ederal law and Su

preme 18 Abela v. Martin No. 00-2430

Courtprecedent. Minnick v. Mississippi , 498 U.S. 146, 153- 54 (1990). Furthermore, b e cause Abela’s statements were self-incriminatingan d am ong the most significant evidence
mars haleda gainst h

im by the state , we do not

find their admission i

nto evide nce har mless.

Fi na ll y, our

decisio n is not altered by the fa ct that, after requestingcounsel, Abela wa s read his Miranda rights, signed
a waiver of them, and proceeded to m a ke a statement at the hospital and at

the police station (where, although not re-read his Miranda rights, he was asked whether he “remembere d” them). As j us t discusse d, when a suspect i nvokes his

Fifth Amendment

right to counsel, police qu estioning must cea se unt il counsel i s presen

t. A suspe ct may

waive his Fift h Amendment

right to counsel and the Ed wards protections after counsel has been requested, but only if the suspect himself has initiated the conversation or discussions with the authoriti es. Minnick, 498 U.S. at 155-56. The evidence here shows that

Abela did not initiate conversation with the police. Rathe r, he gave a statement only after Sergeant McCab e returned to the roo m, read h

im his Miranda righ ts, and resumed questioning. In Arizona v. Roberson
, 486 U.S. 675 (1 988 ), the Supreme Court explained that the bright-line, prophy lactic Edwards rule protects against the inheren tly compelling pressures of cus todi al int errogat ion b y creating a presumptionthat a

ny s ubseque nt waiver

of the rig

ht to counsel at the au

thorities ’ behest

was coe rcive a nd not pure ly
vo lu nt ar y. Id. at 685-86. Moreov er, the Supreme Court expressly reje ct ed the contention that the fresh issuance of M iranda warnings, after the suspect reque sted counsel, woul d
overcome the pressures created by the custodial nature

of the situation. Id. at 686; see also Unite d States v . Hall , 905 F.2d 959, 961, 964-65, (6th C ir. 1990), cert. denied, 501 U.S. 1233 (1991) (holding that once an accused expresses a desire to deal with police only throug h counsel, a presumpt io n is created that

any subsequent wa

iver of the right to counsel at the au th or it ie s’ be he st is co er ci ve an d n ot pu re ly v ol un ta ry; invoking Roberson in re

jecti ng the proposition

that “a f resh set of Miranda warning s would ‘reassure’ a suspect who hadNo. 00-2430 Abela v. Martin 19

been denied c ounsel” t

hat “his r

ights wo uld rema

in untrammeled.”).

Accor ding ly, because

we find that Abela ’s Fifth Amendment

right to c o unsel wa s violated and the st

ate
cou rts’ orders r

ejecting this claim

are con trary to clear ly established

fe der al law, a s determi

ned by the U.S. Sup

reme Court, we gra

nt Abela’ s reques t for hab eas rel ief on this ground.

2. W heth er Abela’s Statements Were Unknowing and Involuntary

Due to His Physical and Mental Condition

Inaddition to

arguin g that hi s statements to the police were inadmissib le because they were elicited in vi o lation of h is Fifth Amendmen

t-based right to c ounsel, Abela also contends that the state ments wer

e unknowi

ng and i nvoluntar y be cause he was intoxicated, in pain, and on pain medi cation during poli ce ques tion ing.

Th e sta te bears the burden of proving that a de fendant “v ol un ta ri ly, knowingly, a nd intellig ently

waived h is right to silence and counsel.” United States v. Bentley , 726 F.2d 1124, 1126 (6th Cir. 1984). This Court uses a “totality of the circumst ances” to determine whether a pe titioner’s statemen ts
were involuntary. Brown v. I ll inoi s , 422 U.S. 590 (1975). The Supreme Court

has state d that, in conducting this test, a court should consider factors such as: (1) police coerci on; (2) length of interrogation; (3) lo cation of interrogation; (4) co nt in ui ty o f i nt er ro ga ti on ; ( 5) th e s us pe ct ’s ma tu ri ty; (6) the suspe ct’ s edu cation; (7) the suspect’s phy sical condition and mental health; and (8) whether

the suspect was advised of Miranda rights. With row v. Wi l liams , 507 U.S. 680, 693-94 (1 993). Coe rcive po lice ac tivity

is a n ecessary element for f in di ng th at a c on fe ss io n w as in vo lu nt ar y. Colorado v

. Connelly , 479 U.S. 157, 167 (1986). 20 Abela v. Martin No. 00-2430

When Abela arrived at the hos pital, he was injured; sp ec if ic al ly, his nose w as b r oken. I n addition , Abela contends that he drank alcohol in large quantities the night before. Howeve

r, th ere i s no evidence in the record that he

w as still drunk during his interrogations or that his mental faculties were in any

ot he r respect impaired during questioning as a res

ult of alco hol or medication. Still, the record makes cl ear tha

t Abela w as physically

uncomfor

table

– indeed, his tape d intervi ew at the police station had to be stopped briefly because Abela wa s vomiting

from the e ffects of the pr evious nig

ht’s alcohol.

Abela has failed to demonstrate that the state cou r t decisions rejecting this claim were contrary to, or involved an
unr eas onable

application of, clearly

established federal law, as determined

by t he U.S. Supreme Cour

t. As a preliminary matter, he has pre se nted no evidence of police coercion. More impor tantly, although we are sympa

thetic to Abela’s uncomfor table sta te in the hospital an

d police s tation, Ab ela has not shown that the facts of this case are equival ent t o those in Mincey v. Arizona , 437 U.S. 385 (1978), or Beecher

v. Alabama , 389 U.S. 35 (1967), where t he U .S. Supreme Co u rt hel d i nvo lu nt ary t he s tat eme nt s of wou nde d m en. In those cases, the petitioners’ injuries were m ore severe and t here was cle ar e vi den ce o f a c oer civ e en vi ron men t. In Mincey , the petitioner was seriously wounded after being shot by police during a narcotics raid on his apartment. He arrived at the ho spital “depressed almost to the point of coma,” according to his attending phy sician. Mincey , 437 U.S. at 398. In addition, at the time of his inter ro gation, 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 t he record demonstra ted t hat 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, h e was “lying on his back on a hospital bed, encumbered

by tubes, needles, a

nd [a] breathing ap pa ratus”No. 00-2430 Abela v. Martin 21

that a nurse testified was reserv ed for on ly the “mor e critic al” patients.

Beecher involved anAfrican-American petitioner accused of raping and killing a white woman. He had f led into an openfield and was chased by po li ce, who f

ired a bu llet into his right le g. One officer then pressed a loade d gun to the petitioner’s face while another office r pointed a rifle a gainst the side of hi s head. The first officer then asked him whether he had raped and

killed a white woman. When the petitioner
res ponded

that he had not, the officer called him a liar an d said, “If y

ou do n’t tell t

he truth I am going

to kill you.” Beecher
, 389 U.S. at 36. The other of ficer then fire d his rifle next to the pet

itioner’ s ear an

d the peti t ioner imme diately confessed. Five day s later, in a pri so n hospital, petitioner’s leg had bec ome so swo llen that he requir ed an inje cti on of morphine every f

o u r hours (the leg eventually had to be amputated). Less than

one hour after one of the se injec tions, t wo Alabama

investig ators visi

ted Bee cher in t

he priso n hospital. The medical as si stant in charge told the petitioner to “coope rate” a nd, in the p etitioner ’s prese nce, asked the investigators to inform him if the petitioner did not “tell them what t hey wante d t o know.” Id. In t he co ur se of a n in et yminute se ss ion, the investigators prepared two detailed statemen ts similar to the confession the petitioner had given five days ear

lier at gunpoint. As the Sup reme Court explained, “[s]till in a ‘kind of slumbe r’ from h

is last morphine injection, feverish, and in intense pai n, the petitioner signed the wri tten confessions thus prepared for him.” Id. at 37. Havingstudied the record on appeal with respect to Abela’ s physical and mental state during questioning, we do not find his situation s

ufficie ntly an alogous to the grave medical conditions and coe

rcive e nvironme nts in Mincey and Beecher to warrant

relief. We therefore deny this claim. However, as discussed above, we find A

bela ’s statements impro perly admitted on the ground

that they were

elicited in violation of his Fifth Amendmen

t right to counsel. 22 Abela v. Martin No. 00-2430

E. Prosecutorial Misconduct

Inh is n ext claim for relief, Abela contends that he was deprived of his rig ht to a fair trial and due process pursuant to the Sixth and Fourteen th Amendments because the prosecutor, in his closing argument, invented a conversation between Abel a and Ronald Wright. Specifically, the prosecutor

stated that, pr ior to Wright’s return to Allen Howard’s hous e t o retrie ve his jac

ket, Abe la told Wrig

ht: “Ronni e, better take this [knife] when we go back. Ain’t nobody going t o kick our ass anymor e. Let’s go ba

ck.” No testimony offered at trial shows that

Abela a ctually made this statemen t.

Inorder to prevail on a

claim of prose cutoria

l miscondu

ct,
a habeas petitioner must demonstrate that the statem en ts of the prosecutor “so infected the tri al with unfa irness a s to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 6 43 (197 4). In determining whether

a petitioner’s due process rights were violated, this Court looks at the totality of the ci rcumstan ces, inclu ding:

the degree to which the remarks c omplained of have a tendency to mi slead the jury and pre judice the accused; whether they are isolated or

extensive; whether

they were deliber ately or accidentally

plac ed before the jury , and the streng th of the c ompetent

proof to e stablish the guilt of the accused. Kincade v. Sparkman , 175 F.3d 444, 446 (6th Cir. 1999). It is improper for a prosecutor to arg ue facts no t in evidence. Berger v. United

States , 295 U.S. 78 (1935). Here, the prosecutor

presented a hy

pothetical conversation between Abela and Ronald Wright in an attempt to explain why the two might have returne d to the pa rty after b eing tol d to leave. At trial, Abela’s theory

of self- defense

was pitte d again st

the prosecution’s the or y t hat Abela and Wrig

ht purpose fully instigated the viole

nt brawl t

hat resu lted in Stan leyNo. 00-2430 Abela v. Martin 23

U nderwood’s death. As such, the prosecutor’s hy pothetica l
was crucia

l to the pri

mary theme of its closing argument and the theory of the c ase supporting the jur y ’s verdi ct. Ac co rd in gl y, and because evidence of Abe la’s guilt was not
ov er wh el mi ng , w e m us t s cr ut in iz e t he st at em en t c ar ef ul ly.

We would be highly c oncerned if the prosecutor presented the conversation

as fact ual. But
, here, the prosecutor prefac ed t his part o f his arg

ument by advising the jury : “and exa

ctly what was said probably we’ll never know but probably went something like this

. . . .” Because of this prefac e, we are persuad edthat the ju

ry would not h ave bee

n misled int

o believing that t

he prosecutor was quoting from an actual conversation, but that he wa s rather presenting beliefs he would have the jury inf

er from the evidenc e prese nted at tr ial. Byrd v. Collins , 209 F.3d 486, 536 (6t h C ir. 200 0). In addition, when charging the jury , the tr ial judge reminded jurors that they “ca

nonly consider the e

vidence that has been properl y admitted in the case” and that “[e]vidence includes only the sworn

testimony of the witnesses” and a ny admitted exhibits, but that “ [t]he lawy ers’ sta tements a nd arg uments are not evidence.”

Taken together, the s e factors persuade us that the prosecutor’s statement, when v iewed in light of the entire trial, did not depri ve 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 pr o secution’s motion for reconsideration, whi ch s ought to reinstate the
conce aled weapon c

harge , previou sly

dismissed by th e tria l 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 performanc e prejudiced

him. Strickland

v. Washington
, 466 U.S. 668, 687 (1984). 24 Abela v. Martin No. 00-2430

OnNovembe

r 5, 1990 –

more tha n fifty days afte r the trial court dismissed the concealed weapon count – the prosecutor filed a motion for re c onsideration of the dismissal order, seekingto reinsta

te the charge. Mich. Ct. Rule 2.119(F)(1) provides that:

Unless another rule provides a diffe rent procedure for reconsideration

of a decision . . . , a motion for rehearing
or r econsi deration of the decision on a motion must be served and filed not later than 1 4 day s after entry of an order disposing of the motion.

Becau se the pr osecution filed its motion for reconsideration welloutside th e time limit prescr ibed by Michiga n law, Abe la contends that his counsel’s failure to object to the u ntime ly motion constituted deficient performance.
However, M.C.R. 2.119(F)(2) states that “N o resp onse to the motion [for reconsideration] may be filed. . . .” In other words, the Michigan

Court Rule s did

not permit Abela’s trial counsel to filean oppo sition to the state’s motion for reconsideration. Accord ingly, we can

not say that A be la’s trial counsel was consti tutionally defic ient f

or failin g to oppo se the state’s motion for reconsideration. I t was incumbent

on the tria

l court to reject the motion as un ti me ly, if it saw fit to do so.

G. Ineffective Assistance of Appellate Counsel

Las tl y, Abela contends tha t h is appellate counsel was ineffective for failing to raise on direct appea l in t he state court the full set of claims presented in his habeas petition – that is, the cla

ims we hav e discuss ed to this p oint. Abe la points to the alleged ineffective assistance o f appell ate counsel as “cause” for any procedu ral def ault of his claims in state court. See Murray v. Carrier , 477 U.S. 478, 488 (1986) (holding that i f a peti tioner can show that he received ineffective assistance of appellate couns el, th is may excuse his procedural default of claims in the state court).No. 00-2430 Abela v. Martin 25

We ne ed not det

ermine w hether t he alleg ed ineff

ecti v e assistance of appellate counsel would constitute “cause” for any procedural default because, a s we d etermine d i n P art II, B. above, Abela’s habeas claims were not procedu

rally defaulted in the state courts.

III. CONCL USION

Onthe basis of our determinations above – (1) that we are notprecluded

from considering Abela’s claims on the g round of procedural default and (2) that statemen ts made by

Abela and admitted at trial were unconstitutionally elicited by police after he invoked his right to co uns el – we REVERSE the districtcourt’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 day s of the date of th is op in io n’ s e nt ry. 26 Abela v. Martin No. 00-2430

______________________________________________ CONCURRING IN PART, DISSENTING IN P ART

______________________________________________ SIL ER, Circuit Judg e, conc

urring in part a nd dissent

ing in part. I concur in a

ll of th e c on cl us io ns by t he ma jo ri ty, except those conclusions that the petitioner, Kevin Mark Abela, was denied his constitutional right to counsel unde r the Fifth Am endment, and that a

writ of ha

beas cor pus should

issu e unless the st ate ele cts to ret ry Abela for the same

charg es. The constituti o n al violation which the majority finds is the introduction at trial of a statement allegedly made in violation of Miranda v. Ar izon a , 384 U.S. 436 (1966). I would find that there was no constitutional violation. Therefore, I would affirm t he distric t court in d

eny ing the w rit.

Abela’s statement to the officers before he was advised of his Miranda rights was “may be I should talk to an attorney by the name of William Evans.” Sgt. Michael McCabe offered to call Eva

ns or anot

her atto rney, but bef

ore Sgt. McCabe attempted to call Evans or anyoneelse, he procee ded to advise Abela of his Miranda rights. It was at this point when Abela said that he would te ll them eve ry thing, a nd did not a sk for the right to consult with Evans or an y ot he r a tt or ne y. As the district court found, Abela’s statements do not constitute
anunequivocal request for counselas required under Davis v. United States , 512 U.S. 452, 458-59 (1994 ). In Davis , the accused made a si

m ilar r equest th at “may

be I should tal

k to
a lawy er.” Th e Court he ld that wa s n ot an una mbiguous request for

counsel. I would not hold that a specific naming of an attorney in this ca se distinguishes the facts sufficient to find a Mirand a violation. See Ledbetter v. Edwards
, 35 F.3d 1062, 1070 (6th Cir. 1994) (holding that the statement that “It
wo uld be nice” to have an attorney was not a clear and unambiguous request for counsel). Althoug h the majo rity opinion relates

that A bela ha nded Sgt . McCabe a busines s card for Evans and that McCabe left the room with the card to phone the attorney, the district court did not find those fa

cts.No. 00-2430 Abela v. Martin 27

Instead, Abela testified that the card wa s in his wallet, which
was in another room. He said that McCabe left the room after he told him abo

ut the ca rd, but Mc Cabe did

not say any

thing about th e c ard nor the attorney after that. Sgt. McCabe testified that Abela pulled out a business card from his wallet and showe d it

to McCabe, but McCabe did not say any thing abo utleaving

the room w

ith the ca rd to phone

the att orney

. Therefore, I would f

ind that the facts determined by the districtcourt below were not clearly erroneo us, andI wou

ld uphold the deci si on by

the district court that no Miranda violation occurred.

Insum, I would af firm the d ecision o f the distr

ict cour t in deny ing the w rit of hab eas cor

pus.