*

The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0207p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

RICHARD SHANEBERGER,

 Petitioner-Appellant,

v.

KURT JONES,

 Respondent-Appellee.

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No. 07-2211

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 03-74452—Arthur J. Tarnow, District Judge.

Argued: March 3, 2010

Decided and Filed: July 16, 2010 

Before: BOGGS and NORRIS, Circuit Judges; ADAMS, District Judge.*

_________________

COUNSEL

ARGUED: Michael C. Merrick, DINSMORE & SHOHL LLP, Louisville, Kentucky,

for Appellant. Andrew L. Shirvell, OFFICE OF THE MICHIGAN ATTORNEY

GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Michael C. Merrick,

DINSMORE & SHOHL LLP, Louisville, Kentucky, Michael J. Newman, DINSMORE

& SHOHL LLP, Cincinnati, Ohio, for Appellant. Brad H. Beaver, OFFICE OF THE

MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. 

1
No. 07-2211 Shaneberger v. Jones Page 2

_________________

OPINION

_________________

ADAMS, District Judge. Petitioner Richard Shaneberger appeals from the

district court’s denial of his petition for habeas corpus filed pursuant to 28 U.S.C.

§ 2254. Shaneberger contends that the district court erred when it found that he failed

to demonstrate ineffective assistance of appellate counsel. We affirm.

I. FACTUAL BACKGROUND

On December 11, 1996, Shaneberger was convicted of felony murder, aiding and

abetting armed robbery, conspiracy to commit armed robbery, and aiding and abetting

kidnapping. Prior to his conviction, Shaneberger moved to suppress oral statements that

he made on December 30, 1995. Shaneberger contended that his statements were the

result of an interrogation conducted in violation of his right to counsel. The following

facts have been developed in support of this argument.

Detective Richard Rau was placed in charge of the investigation of the shooting

death of John East. On December 29, 1995, Detective Rau interviewed Shaneberger’s

co-defendant James Rowe. During that interview, Rowe admitted to being involved in

the robbery with Justin Gillette and a man named “Rick.” After further interrogation,

Detective Rau came to the conclusion that “Rick” referred to Shaneberger. Armed with

this information, Detective Rau returned the local police department the next day,

intending to interview Shaneberger. Unbeknownst to the detective, Shaneberger was

already present and being interviewed at the department on unrelated charges. Detective

Rau entered the interview room just as Shaneberger was receiving his Miranda

warnings. At that time, Shaneberger indicated that he wished to speak to his father

before answering questions and that his father would make any decision about obtaining

him an attorney. The detective conducting the questioning ended the interview at that

point, apparently concluding that Shaneberger had invoked his right to counsel.

Detective Rau, however, then made a statement to Shaneberger:
No. 07-2211 Shaneberger v. Jones Page 3

I told Shaneberger that... I don’t mind laying my cards on the table. I

asked him not to say anything but listen to what I had to say. I told him

that I had already talked to his partner Rowe, and Rowe [had implicated

him in the robbery].

Detective Rau then immediately left the jail without offering Shaneberger an opportunity

to respond to his statement. 

Sometime after Detective Rau left the jail, Trooper Michael Gutierrez was

instructed to transport Shaneberger to the county jail. From the record before this court,

it is unclear how much time elapsed between Detective Rau’s statement and

Shaneberger’s subsequent transport to the county jail. However, shortly after the trip

began, Trooper Gutierrez noticed that Shaneberger was crying and appeared

uncomfortable. Believing that Shaneberger’s handcuffs were too tight, Trooper

Gutierrez asked him whether he was “okay.” Shaneberger responded that he needed to

get something off his chest. Trooper Gutierrez then once again read Shaneberger his

Miranda rights and asked whether he understood them. Shaneberger responded in the

affirmative and indicated a further desire to talk. During the trip, Shaneberger told

Trooper Gutierrez, “Well, I didn’t kill anybody, I'm not a killer, I just want you to know

that.” Trooper Gutierrez continued to encourage him to talk during the trip and upon

arriving at the county jail, Shaneberger gave a full confession, implicating himself and

identifying Gillette as the individual that shot and killed East.

Prior to trial, Shaneberger moved to suppress his custodial statements. The trial

court denied the motion. In addition, Shaneberger’s counsel opposed the State’s motion

to consolidate his trial with Rowe’s trial. The motion was granted over the objection,

and Shaneberger’s counsel never sought thereafter to sever the trials. As a result,

Shaneberger was tried jointly with Rowe, and Rowe’s custodial statements were

introduced against Shaneberger. Shaneberger was convicted by a jury of the counts

detailed above.

On appeal, Shaneberger’s appellate counsel did not challenge the trial court’s

ruling on his motion to suppress, nor did appellate counsel assert that trial counsel was

ineffective for failing to move to sever the trials. Appellate counsel instead raised seven
No. 07-2211 Shaneberger v. Jones Page 4

other issues, including challenges to the sufficiency of the evidence, the admission of

other acts evidence, the trial court’s ruling on another, distinct motion to suppress, and

alleged prosecutorial misconduct. Each claim was rejected and Shaneberger’s

convictions were affirmed. Following the Michigan Supreme Court’s refusal to accept

his discretionary appeal, Shaneberger moved for relief from judgment in the trial court.

In that motion, Shaneberger raised numerous issues, including the two issues presented

before this court. Relief with respect to that motion was denied at all levels of state

review.

On November 4, 2003, Shaneberger filed his § 2254 petition in the district court.

The petition was denied on September 6, 2007, and Shaneberger timely appealed.

II. STANDARD OF REVIEW

We conduct a de novo review of the district court’s decision to grant or deny a

habeas petition. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). Because

Shaneberger filed his habeas petition after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”),

we may grant the writ “with respect to a ‘claim that was adjudicated on the merits in

state court proceedings’ if the state court's decision ‘was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.’” Murphy, 551 F.3d at 493 (quoting 28 U.S.C.

§ 2254(d)(1)). “A state-court decision is contrary to clearly established federal law ‘if

the state court applies a rule that contradicts the governing law set forth in [the Supreme

Court’s] cases’ or ‘if the state court confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a

result different from [that] precedent.’” Id. at 493-94 (quoting Williams v. Taylor, 529

U.S. 362, 405 (2000)) (alterations sic). “A state-court decision is an unreasonable

application of clearly established federal law if it correctly identifies the governing legal

rule but applies it unreasonably to the facts of a particular prisoner’s case, or if it either

unreasonably extends or unreasonably refuses to extend a legal principle from Supreme

Court precedent to a new context.” Id. at 494 (quotation marks and citations omitted).
No. 07-2211 Shaneberger v. Jones Page 5

Both of Shaneberger’s claims turn upon his assertion that he received ineffective

assistance from his appellate counsel. The Supreme Court has held that “the

Constitution guarantees criminal defendants only a fair trial and a competent attorney.

It does not insure that defense counsel will recognize and raise every conceivable

constitutional claim.” Engle v. Isaac, 456 U.S. 107, 134, (1982). Accordingly,

ineffective assistance of appellate counsel claims are governed by the same Strickland

standard as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528

U.S. 259, 285 (2000). To prevail, Shaneberger must show that his counsel’s

performance was deficient and that he was prejudiced as a result. Strickland v.

Washington, 466 U.S. 668, 687 (1984). To show prejudice, Shaneberger must

demonstrate that, but for counsel’s poor performance, “there is a reasonable probability”

the result of his appeal would have been different. Id. at 694. Appellate counsel cannot

be found to be ineffective for “failure to raise an issue that lacks merit.” Greer v.

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Furthermore, the Strickland analysis “does

not require an attorney to raise every non-frivolous issue on appeal.” Caver v. Straub,

349 F.3d 340, 348-49 (6th Cir. 2003). 

III. LEGAL ANALYSIS

A. Motion to Suppress

Shaneberger asserts that his appellate counsel was ineffective for failing to

challenge the trial court’s denial of his motion to suppress his custodial statements.

Shaneberger’s primary contention focuses on his belief that detectives continued to

interrogate him following his request for counsel, in violation of Edwards v. Arizona,

451 U.S. 477 (1981). Shaneberger argues that the state court was incorrect in its

evaluation of trial counsel’s decision. We hold that the state court did not unreasonably

apply existing law when evaluating this argument.

In Edwards, the Supreme Court held that “an accused ... having expressed his

desire to deal with the police only through counsel, is not subject to further interrogation

by the authorities until counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or conversations with the police.”
No. 07-2211 Shaneberger v. Jones Page 6

Id. at 484-85. In denying Shaneberger relief, the state court concluded that he had

initiated further conversations with the police, thereby negating any claim that

Shaneberger’s right to counsel had been violated. We find no error in that conclusion.

The Supreme Court has found that “interrogation” refers “not only to express

questioning, but also to any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446

U.S. 291, 301 (1980) (footnote omitted). 

The latter portion of this definition focuses primarily upon the

perceptions of the suspect, rather than the intent of the police. This focus

reflects the fact that the Miranda safeguards were designed to vest a

suspect in custody with an added measure of protection against coercive

police practices, without regard to objective proof of the underlying

intent of the police. A practice that the police should know is reasonably

likely to evoke an incriminating response from a suspect thus amounts to

interrogation. But, since the police surely cannot be held accountable

for the unforeseeable results of their words or actions, the definition of

interrogation can extend only to words or actions on the part of police

officers that they should have known were reasonably likely to elicit an

incriminating response.

Id. at 301-02 (footnotes omitted; emphasis sic). While we do not focus on the intent of

the police, a practice that is subjectively intended to elicit an incriminating response will

very likely produce a finding that the police should have known that such a result would

occur. Id. at 301 n.7. Moreover, two Circuits have concluded that informing the

accused that he had been implicated in a crime by a co-defendant constitutes

interrogation under the Innis definition. See Nelson v. Fulcomer, 911 F.2d 928, 935 (3d

Cir. 1990); United States v. Szymaniak, 934 F.2d 434 (2d Cir. 1991). Neither of these

holdings supports reversal under the facts herein.

In Nelson, the defendant responded immediately to his co-defendant when

confronted with the fact that the co-defendant had confessed. In finding that

interrogation had occurred, the Nelson panel concluded that “[t]he ploy of confronting

a suspect with his or her alleged partner in crime and claiming that the partner has
No. 07-2211 Shaneberger v. Jones Page 7

confessed is indistinguishable from the types of police practices explicitly criticized in

Miranda and Innis.” Nelson, 911 F.2d at 935. In Szymaniak, the defendant confessed

after being approached three or four times by a government agent and being provided

with information gained from another interrogation. Concluding that a violation had

occurred, the Second Circuit noted as follows: “If Szymaniak’s statement was made

during one of these encounters, it was in response to interrogation outside the presence

of counsel and thus in violation of the fifth amendment in light of his refusal to waive

his right to counsel.” Id. at 439. 

There is little doubt that Detective Rau’s actions tread near the line between what

is acceptable and what violates Shaneberger’s right to counsel. Without the specific

portions of the statement discussed below, Detective Rau’s comment would fit squarely

within the category described by Innis as interrogation. However, Detective Rau did not

simply inform Shaneberger that a co-defendant had implicated him in a crime, as

occurred in Nelson. Instead, when Detective Rau informed Shaneberger that Rowe had

implicated him in the crime, Rau specifically informed Shaneberger not to respond to

him. Moreover, Rau left the room immediately after conveying the information to

Shaneberger.

While Detective Rau’s statements create a close question, this court does not sit

in independent judgment of the merits of Shaneberger’s underlying Innis challenge.

Instead, we must examine the merits of his claim under the AEDPA’s “highly

deferential” standard of review that “demands that state-court decisions be given the

benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (quotations omitted).

Based upon the facts detailed herein, we cannot say that the state court unreasonably

applied Strickland and Innis. We find that whether Detective Rau should have known

that his comments would elicit an incriminating response is a close question - a question

that could reasonably be answered by a state court in the negative. 

There is no dispute that Detective Rau informed Shaneberger that he had been

implicated by a co-defendant. Detective Rau, however, gave Shaneberger no

opportunity to respond and indeed directed him not to respond. Supporting the state
No. 07-2211 Shaneberger v. Jones Page 8

court’s decision is the fact that Detective Rau not only permitted no time for a response,

but no response was immediate. The record does not disclose the exact time that elapsed

between Detective Rau’s statement and Shaneberger’s subsequent decision to speak to

another law enforcement official. The record, however, does clearly depict that

Shaneberger chose to speak to an entirely different officer at a different location and

time, and an officer who had no prior knowledge of Detective Rau’s involvement with

Shaneberger. Accordingly, we find that it was not unreasonable for the state court to

conclude that these latter facts took Detective Rau’s statement outside the realm of

interrogation as defined by Innis. That is, it was reasonable to conclude that Detective

Rau would not have known that his statement was likely to elicit an incriminating

response. Based upon this conclusion, we cannot say that the state court was

unreasonable in holding that Shaneberger had failed to demonstrate ineffective

assistance of appellate counsel. This court, therefore, cannot reverse under the highly

deferential AEDPA standard of review.

B. Motion to Sever

Shaneberger’s argument for reversal on this ground is dependent upon a finding

that his statements should have been suppressed. Having concluded that Shaneberger

demonstrated no reversible error in the district court’s decision with respect to the

suppression issue, we adopt the thorough and detailed harmless error analysis of the

district court with respect to the severance issue.

IV. CONCLUSION

For the foregoing reasons, the district court’s denial of the habeas petition is

AFFIRMED.