NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0732n.06 No. 10-1089 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
ROBERT WI L KENS, J R., Petitioner-Appellant,

v. BL AI NE L AFL ER, Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : BOG GS, SUHRHEI NRI CH, and COOK, Circuit Judges. COOK, C ircuit J udg e. State prisoner Robert Wil kens, J r., i mprisoned for crimin al s ex u al conduct in the f

irst deg ree , appea ls the denial of his habe as petition. He claims two constitutional violations: 1) t hat t he presence of uni formed D epar tment of Correc tions office rs i n the courtroom and discarde d shackle s left in the jury ’s view violated his Six th Amendment rig ht to a fair trial, and 2) that he rec eived ineffe ctive assistance of counsel beca use trial counse l fa i l ed t o move for the suppression of stateme nts obtained without a Miranda war ning. We AF FI RM.
I . Ba ckg round
One night, Wil kens drove up to M.C., a street prostitute, and propositioned her for sex. She enter ed his truck and he drove her to an empty field. After they undresse d, Wil kens held a butcher knife to M.C.’s throat and t h reatened to sodomiz e her if she ref used to fellate him. Once M.C.No. 10-1089

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arden complied, Wil kens dropped her off wher e he found her befor e, told her he would come back to pay her, a nd never returne d.
Sometime later, M.C. repor ted the incident to Detec tive Robert Peto of the Ypsilanti Police De p ar tment. Whil e investi g ating other reports of sexual assault on local prostit utes, Peto noticed simil arities betwee n M.C.’s assault and that of another prostitute, V.H. Both victims independe ntly identified Wil kens as their assailant, both independe ntly descr ibed Wil kens’s truck and li c e n s e plate, and both assaults involved a proposition on the street, a ride to a remote lot, and threa ts to sodomiz e while bra ndishing a

knife.
At trial, M.C. and Peto testified on behalf of the g overnme nt. Unable to locate V.H. for trial, the g overnme nt submitt ed parts of V.H.’s preliminary -examination transcr ipt as evidenc e. Wil kens elec ted to take the stand as well, prese nting a theory that M.C. and V.H. fabr icated the assault alleg ations to extort money from him. The jury found Wil kens g uilty of first-deg ree criminal sexual conduct. After unsucce ssfully moving for a new trial and exhausting state proce dures, Wil kens petitioned for a

writ of habea s corpus in f eder al district, which was de nied. Only a fa ir-trial c laim and an ine ffe ctive-a ssistance-of -counse l claim rema in on appea l.
A. Fa cts I nvolving the F air-T rial Claim
Wil kens protests t hat the trial-cour troom conditions violated his rig ht to an impartial jury under the Six th and Four

teenth Amendments. Although he attended his trial unshackle d and in plain

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arden clothes, two g uards in Depa rtment of Correc tions uniforms sat behind him beca use he was serving time f or other c onvictions. ( The parties dispute how near the g uards sat, and the last state court to comment on the issue simply noted that the g uards sat “nea r defe ndant.”) His trial counsel objected to the presence of t he guar ds in Depa rtment of C orre ction s u niforms and sugg ested that the j udg e permit the g uards to appe ar in plainclothes or county uniforms. The c ourt noted the objec tion but declined to a ct.
Whil e the jury

deliberated, trial counsel’s investigator approa ched the alterna te j uror, who
rema ined outside the jury room in a public waiting are a. Acc ording to trial counsel’s aff idavit, the alternate juror confide d to the investigator and the trial counsel that the jurors noticed t he Depa rtment of C orre ctions insignia on the guar ds near Wil kens, noticed sha ckles disca rded in the jury box , specula ted t hat W ilkens was in prison, and discusse d possible verdicts prior to the close of proofs. Using this information, trial counsel moved for a new trial, ag ain objecting to the prese nce of uniforme d g uards. The trial court de nied the motion.
On appeal , Wil kens shifted his argument, objecting to the “pre sence ” of “prison g uards” rathe r than their uniforms. The state appellate court acc ording ly ruled on whether the prison g uards’ “being in the co u rt room” denied Wil kens his fair- trial rig hts, concluding that it did not. The Michig an Supreme Court denied leave to appe al.
On habea s review , Wil kens shifts his objection back to the unifor ms. Be cause his de fense turned on pitting hi s cre dibilit y ag ainst the credibility of t he vic t i m s , he claims that any indicia of 3No. 10-1089

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his incar cer ation inhere ntly prejudice d his case . He als o claims that he suffe red actua l prejudice , beca use an alternate juror confirme d that the jurors noticed the prison g uards and sh ac k l es and deduce d his incar cer ation from these clues. The g overnme nt responds that fairminded jurists could disag ree about whether the uniformed g uards and shackle s sufficie ntly aff ecte d the proce eding s to rende r the trial unf

air.
B. Fa cts I nvolving the I neff ective- Assistance Claim
Wil kens faults his trial counsel for failing to move t o suppress his statements t o Detec tive Peto reg arding his previous encounters with M.C. He c laims that such i ncompetenc e viol ated his Six th Amendment rig ht to counsel. During the investigations leading to Wil kens’ s ar rest, Peto and another detec tive visited Wil kens at his home. Shortly afte r Wil kens invited them in and consente d to a sear ch of his home, the three of them sat around his kitchen table and b egan to talk. Acc ording to Peto, Wil kens volunteere d, “I know what this is about. I t’s a woman. [M.] is her name,” and explained that he had paid her for se x , driven he r to a fie ld, and used he r ser vices.
Wil kens rec alls the s i t u ation differ ently
. Thoug h he acknow ledg es that he invited the detec tives in and that he signe d a consent sear ch form, he claims that the detec tives questioned him ag g ressively throug hout their kitchen-ta ble conver sation and ensuing sear ch, ref using to rele nt until he provided the answe rs they wanted. He purpo rt ed l y d enied any dealing s with M.C. or other
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arden prostitutes. Be cause of the alleg edly adver sarial nature of the questioning—the rapid-f ire
acc usations and the detect i v es ’ re fu sal to let him out of their sight or allow him to speak to his roommate—he argues that the detec tives should have advised him of his Miranda rig hts and that his counsel should have moved to suppress the state ments. Having failed on direc t appea l, he now raises the same argu m en t on habea s revie w, contending that the Michig an Court of Appea ls unrea sonably applied clea rly established fede ral law by concluding that the detec tives’ questioning and his counsel’s failure to move for suppression did not violate his constituti onal rig hts.

I I . Whether the Concur

rent-Sente nce D octrine A pplies
Be cause Wil kens curr ently serve s concur re n t s e n te n c e s f

o r o th e r c o n v ic ti o n s , th e g overnme nt
re q u es t s t hat we decline revie w of this case under the concur rent-se ntence doctrine. See Dale v. Haebe rlin , 878 F.2d 930, 935 n.3 (6th Cir. 1989) (“A ccor ding to this doctrine, acc epted by this court,
an appellate court may decline to hear a substantive challeng e to a conviction when the sentenc e on the challeng ed conviction is be ing serve d concur rently with an equa l or longe r sentenc e on a valid conviction.”)
. We apply this discretionar y doctrine o n l y t o t h o s e si tuations “whe re it is clea r t hat ther e i s n o co llatera l conseque nce to the defe ndant and the issue does not otherwise involve a signific ant question meriting consideration.” United States v. Hughes , 964 F.2d 536, 541 (6th Cir. 1992). Be cause the Michig an Parole Boa rd may consider the “numb er an d fr equenc y of prior criminal convictions” and m u s t consider the “number of prior convictions for sex offe nses” in 5No. 10-1089

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deter mining parole , see Mich. Admin. Co d e r. 7 9 1.7715(2)( a)( ii), 791.7716(3)( b)(v) , ref using to adjudg e the co n s t itutionalit y of Wil kens’s conviction may aff ect his parole opportunities. We there fore decline to a

pply the concur

rent-se ntence doctrine. Cf. United States v. Vargas , 615 F.2d 952, 959 (2d Cir. 1980) (consider i n g t h e ef fec t on parole as one potential collater al conseque nce counseling ag ainst application of the c oncurr ent-sente nce doc trine).
I I I . Fa ir-Tria l Claim
Wil kens ar g ues that the seating of g uards in Depa

rtment of Correc tions unifor ms ne ar him and presence of di scar ded shackles i n the j ury box cre ated such a probabi l i t y o f prejudice that his trial inhere ntly lacke d due proce ss, in violation of his Six th Amendment ri gh t t o a fair trial by an impartial jury . He a lso claims that these conditions actua lly prejudice d jury

deliberations.
A. Standard of Re view
“Unde r AEDPA, we may g rant habeas p et i t i ons for claims that the s tate court adjudicate d
on the merits if t h at ad

j u d i ca t i on ‘re sulted in a decision that was contra ry to, or involved an
unrea sonable application of, clearly established Feder al law, a s determined by the S upreme Court of the United States.’” Foust v. Houk , 655 F.3d 524, 533 (6th Cir. 2011) (q u o t i ng 28 U.S.C. § 2 2 5 4 (d )(1)). Wil kens urg es us to revie w Michig an’s adjudication de novo notwithstanding § 2254(d)( 1), for

two rea sons.

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arden First, he argues that the Michig an Court of Appea ls failed to consider the lac k o f s t ate interests j ustify ing the prese ntation of guard s i n De partment of Correc tions uniforms (as opposed to plainclothes or county uniforms) when evalua ting the fair- trial cl ai m . But we cannot fault the court for ignor ing an arg

ument that Wil kens failed to raise on appea l. Thoug h Wil kens objected to the g uards’ uniforms during the trial, he omitted this argument in his state appellate briefs. R. 1-5, at 39–40 (protesting g ener ally to “pre sen[ce]” of prison g uards, without focusing on choice of clothing) ; R. 16-21, at 14 (ar g uing the same in motion for rec onsideration); R. 16-23, at 51 (ar g uing the same in brie f for

motion for rema

nd). Second, Wil kens contends t h at the state appellate court addre ssed only the state fair- trial claim on the merits, ignor ing the fede ral fair- trial claim. Be cause the state requirem en t o f “af firmative prejudice ” differ s from the fede ral standard articula ted in Holbrook v. Flynn , 475 U.S. 560, 572 (1986), which looks for actua l prejudic e o r an inhere ntly prejudicia l prac tice, Wil kens arg ues that the state court failed to “examine the Holbrook issue” and “foc used exclusively on actua l prejudice .”
Wil kens fa ils to rebut the presumption that the state c ourt adjudica ted the fe dera l claim on the merits. See Harrington v. Richter , 562 U.S. ___, 131 S. Ct. 770, 785 (2011) (“The presumption [t hat a state cour

t adjudicated a

claim on the mer its before denying r elief] may be over come whe n there is rea son to t h i n k s ome other explanation for the state court’s decision is more likely .”). Thoug h the Michig an Court of Appea ls cited no fede ral case s, it expressly identified the claim as a
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fede ral one, ref

err ing to “[t] he Six th Am en d ment g uara ntee of the rig ht to a fair trial” befor e addre ssing whether the discarde d shackle s and g uards prejudice d Wil kens. To the extent that Wil kens cr iticiz es the state c ourt for f ailing to e x amine the possibili ty of “inherent prejudice,” we construe this as a critique of the state court’s application of a rule contra ry to fede ral law, rathe r than its failure to adjudicate a claim. See Bell v. Cone , 535 U.S. 685, 694 (2002) (“A fede ral habea s court may issue the writ under the ‘contra ry to’ clause if the state c ourt applies a rule differe nt from the g overning law set for

th in our case s . . . .”); accord Fulcher v. Motley , 444 F.3d 791, 806 ( 6th Cir. 2006) (citing W

illiams v. Taylor , 529 U.S. 362, 405 (2000)) (treating application of a contra dictory rule as tri gger i n g t h e “contr ary to” analy sis of § 2254(d)( 1), rathe r than the “adjudicated on the merits” analy sis); see also 28 U.S
. C
. § 2254(d)( 1) (acknowledg ing that claims adjudicate d on the merits may y et result in a decision contra ry to clea rly established fede ral law, meriting habea s relief ).
I n any case , we discern no conflict betwee n t h e s t ate appellate court’s rea soning and Holbrook ’s instruction to consider inhere nt prejudice , and deem Wil kens’s excerpted rea dings of the state opinion insuff

icient to r ebut the presumption that the state cour t adjudicated the claim on the merits. See Early v. Pack

er , 537 U.S. 3, 8 (2002) (per curiam) (“A voiding these pitfalls [of rea ching
a result “contr ary to” clea

rly established fede ral law] does not require citation of our case s—indeed, it does not even require awa rene ss of our case s, so long as neither the rea soning nor the result of the state-c ourt decision contra dicts them.”). For one, though Wil kens faults the state court for citing to the state stand ar d o f “af

firmative[] prejudice ,” the state court explained that it was apply ing this standard to evalua te the “juror misconduct” claim—a claim not prese nted in this appea l. See R. 16- 8No. 10-1089

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2 1 , at 2 (“ T o o btain a new trial based on juror misconduct, the defe ndant must show that the misconduct ‘af

firmatively prejudice d the defe ndant’s rig ht to a trial befor e a fair and impartial jury ’ [citi ng a state c ase].”). By contra st, the state court’s analy sis of the limit ed claim befor e us—reg arding the prejudicia l eff

ect of g uards and discarde d shackle s—beg an by quoting the g ener al federal principle that “one acc used of a crime is entitled to have his g uilt or innocenc e deter mined solely on the basis
o f t h e evidenc e introduced at trial, and not on the g rounds of officia l suspicion, indi ct m en t , continued custody , or ot her circumstanc es not adduce d as proof at t rial.” See Taylor v. K entuck y , 436 U.S. 478, 485 (1978). (I ndeed, Wil kens’s own analy sis in the state appellate briefs venture d no further , citing Holbrook only for this g ener al principle and conclusoril y s t ati ng , “Violations are prejudicia l per se ,” without distinguishing its inher ent-pre judice and actua l-prejudice arg uments.) The court then contra sted the prac tices targ eted in Wil kens’s complaints to what Holbrook deeme d a quint essential ex ample of an “inherently prejudicia l prac tice”—pr esentinga shackled defendant befor e a jury

—and conclude d that no case law supported trea ting the use of shackle s and g uards in W i l kens’s trial in the same fashion. See Holbrook , 475 U.S. at 568–69. Then, the state court observe d that Wil kens “[a]ddit ionally ” failed to show “how he was prejudice d by the shackle s being
seen n ea r h i m ”— addre ssing the lack of actua l prejudice
. Thoug h that court never mentioned the terms “ Holbrook ,” “inher ent prejudice ,” or “ac tual prejudice ,” the opinion’s a naly sis sug g ests that it ap p l i ed t h e co rre ct rule, touching on both ty pes of analy sis require d under Holbrook
. We thus

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conclude that the state court did not “appl[y ] a rule differ ent from the g overning law set forth in [t he Supreme Court’s] case s,” Cone , 535 U.S. at 694, or fail to adjudicate the fede ral claim on the merits.
Be cause Wil kens fa ils to show the applicability of de novo re view, we now turn to the last
avenue rema i n i n g under § 2254(d)( 1) for habea s relief on this claim: whether the state decision involved an unre asonable application of c lear ly established fe dera l law.
B. A Fa irminded J urist Could C onclude That Wi lkens Rece ived A F air Tr ial.
A state decision involves an unrea sonable application of clearl y es t abli shed fede ral law if “‘f airminded jurists could disag ree that [t he a r g uments or theories that could have supported the state court’s decision] are inconsistent with the holding in a prior decision o f [ t h e Supreme Court] .’” Cullen v. Pinholster , 563 U.S. ___, 131 S. Ct. 1388, 1402 (2011) ( quoting Harrington , 131 S. Ct
. at 7 8 6 ). As a fundamental liberty secur ed by the Four teenth Amendment, the Six th Amendment rig ht to trial by an impartial jury applies to state proce eding s. Estelle v. W illiams , 425 U.S. 501, 503 (1976). A petitioner may show that a s t at e p ro ce dure violated his rig ht to a fair trial either by identify ing an inhere ntly prejudicia l pr actice or by demonstrating actua l pr ejudice. Holbrook , 475 U.S. at 572.
1. No I nhere nt Prejudice
A proce dure “involves such a probability that prejudice will result th a t it is d eeme d inhere ntly lacking in due proce ss” if it prese nts “an unacc eptable risk
. . . of impermissible fac tors coming into 10No. 10-1089

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arden play .” Id
. at 570 (interna l quotation marks and citations omitted). The S uprem e C o u rt h as y et t o addre ss whether placing uniformed prison g uards n ea r a defe ndant during his trial inhere ntly prejudice s him. The closest analog ues that the Court rec og nizes as “inher ently prejudicia l” involve “compe lling an acc used to wear jail c lothing,” W illiams , 425 U.S. a

t 504, or “the sight of shackle s and gag s” on the accused, Illinois v. All en , 397 U.S. 337, 344 (1970); De ck v. Missouri , 544 U.S. 622, 626 (2005) ( reiter ating that shackling , absent spec ial need, inherently prejudice s defe ndant). But the Court a lso r ecog nizes that some practice s fall short of “inher ent prejudice ”: the place ment of four uniformed troopers in the first row of specta tors, for example, does not brand the defe ndant with an “unmistakable m ar k of g uilt.” Holbrook , 475 U.S. at 571 (quoting W illiams , 475 U.S. at 518).
This case falls somewher e betwee n th es e two poles. On the one hand, Holbrook ’s
rea s suranc e that jurors will simply trea t these g uards as safe ty office rs for the court rathe r than “r em inders of the defe ndant’s specia l status,” id
. at 569, no longe r applies when the uni fo rm s identify the g uards as prison office rs rathe r than peac e office rs. On the other hand, the prese nce of uniformed prison g uards ne ar Wilkens prese nts a subtler i ndication of incar cer ation than s hackle s
or prison g arb on a defe ndant. See id
. at 571 (contra sting shacklin g and prison clothes, as “unmistakable indications of the need to separ ate a defe ndant from the community at larg e,” ag ainst the pre sence of four

office rs quietly

sitti ng in close proximi ty to the defe ndant, a more ambig uous i n d i ca t i on possibly too subtle to notice or open to multipl e interpre tations). For example, a fairminded jurist could conclude t hat m ost jurors would overlook the detail o f t h e i n s i gnia on the 11No. 10-1089

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g uard uniforms or infer nothing from them, espec ially s i n ce jurors might not know enoug h about courtroom proce dures to think that the pre sence of g uards from the Depa rtment of Correc tions a

re aty pical in crimi n al p ro ceeding s. (Wilkens’s alleg ation that the particula r jurors in this case did notice the insignia rela tes to the “ac tual prejudice ” analy sis, rathe r than the “inher ent prejudice ” analy sis.) Simi larly , the discarding of shackle s in the jury box at some point during the trial prese nts
a smaller risk of becoming a “consta nt reminder of the acc used’s conditio n ” o r a “c ontinuing influence throug hout the trial,” see W illiams , 425 U.S. at 504–05, than the shackling of a defe ndant throug hout the trial as a phy sical re straint.
Given these differ ence s, fairminded jurists could conclude that the prese nce of a few g uards
near Wil kens with Depa

rtment of Correc tions insignia fa i l s t o cre ate an “inher ently prejudicia l” circ umstance or an “unac cepta ble risk” of aff

ecting the jury delibera

tions. Rather than articula ting specific rules for identify ing unacc eptable risks , t he Supreme Court simply entre ats judge s to use
common sense: Holbrook calls for a case -by -ca se approa ch, 475 U.S. at 569, and W illi ams emphasizes scrutiny “base d on rea son, principle, and common human experience ,” 425 U.S. at 504. Absent more specific g uidance from the Supreme Court , fairminded jurists could vary widely in assessing various details and risks, espec ially since the closest Su p re me Court analog ues involve easily distinguishable circ umstances. See Renico v. Lett , 559 U.S. ___, 130 S. Ct. 1855, 1864 (2010) (“[T]he more g ener al the rule at issue—and thus the g rea ter the potential for rea soned disag ree ment among fair- minded judge s—the more leewa y state courts have in rea ching outcomes in case -by -ca se

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d et er m i nations.” (interna l quotation marks, alterations, and citations omitted)). We thus reje ct Wil kens’s inher ent-pre

judice ar g ument.
2. No Actua l Prejudice
Since Wil kens cannot rely on inhere nt prejudice , he must show actua l prejudice
. See Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (e quating the term, “ actua l prejudice ,” to the Kotteakos standard courts ty

pically use for the harmless-e rror analy sis on collater al revie w: demonstrating an
err or’s “substantial and injurious eff ect or influence in deter

mi n i n g the jury ’s verdic t” (quoting Kotteakos v. United States , 328 U.S. 750, 776 (1946)))
. Wil kens’s sole evidenc e of actua l prejudice consists of an aff idavit from trial counsel para phrasing hear say from an alternate juror that, p ri o r t o the close of proofs, the jury noticed shackle s left in the jury box , discussed the prese nce of the Depa rtment of Correc tions office rs, and specula ted that Wilkens was in prison. Acc ording to trial counsel’s a ffidavit, his investigator and the alternate juror discussed these matters in a public waiting are a while the jury deliberated, and trial counsel himself interviewe d the alternate juror afte r the rea ding of th e v er d i ct
. But rathe r than prese nt an aff

idavit of the juror’s statements, counsel provided a g ener al para phrase only , based on counsel’s acc ount of the investigator’s repor t, leaving scant rec ord of what the alternate juror might have actua lly said—whethe r the jurors specula ted about the g uards in passing and q u i ck ly forg ot about t hem, or whether the i ndicia of incar cer ation beca me a run n i n g theme throughout t heir preproof discussions. 13No. 10-1089

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Moreove r, Wil kens’s brief repe atedly claims that the jury “ac tually discu s s ed [W ilkens’s possible imprisonment] in connec tion with possible verdic ts,” but, notably , the trial counsel’s aff idavit fails to asser

t any “co n n ec t i on” betwee n the jury ’s observa tions about the g uards and shackle s and their deliberations on the verdic t. And even if the jury noticed t h e shackle s and
rec og nized the g uards as prison staff, an alternate juror who sat outside with counsel’s investigator during delibera

tions would have no knowledg e of the actua l discussion in the jury room or how prominently the jurors’ ear lier observations of the shackle s and g uards fig ured into their verdic t, if at all.
L acking other evidenc e, Wil kens urg es us to a ssume prejudice beca use the trial pivoted on
a cre dibilit y contest betwee n Wil kens, on the one hand, and M.C. a nd Peto, on the other. Be cause the trial judg e instructed the jury that it could consider M.C.’s criminal hi story in deter mining her
cre dibilit y , Wil kens contends that the jury probably considere d the indicia of his incar cer ation while weig hing his cre dibilit y , as well. But this is specula tion. Wil kens also argues that the state court’s adjudication “re sulted in a decision that was based on an unrea sonable deter mination of the fac ts in l i gh t of the evidenc e prese nted in the State court proce eding ,” beca use “the appellate court ’s reje ction of actua l prejudice is objectively unrea sonable.” But in doing so, he mere ly faults the leg al conclusion that the state appella t e co u rt draw s from the fac ts; he points to no err oneous deter mination of fa ct
. W i t h nothing more than an aff idavit based on hear say , and no evidenc e illumi nating what the jury actua lly discussed in the jury room, a fairminded jurist need not conclude that the g uards a

nd shackle s had a “ substantial and injurious effe ct or influenc e” on the verdic t. 14No. 10-1089

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I n the alternative, Wil kens asks for an opportunity to s upplement the state rec ord with a habea s evidentiar

y hear ing under 28 U.S.C. § 2254(e) (2), claiming that he dil ige ntly reque sted an evidentiar y hear ing at eac h stag e of the state proce eding s but failed to obtain one. The g overnme nt
corr ectly notes that Pinhols t er p ro h i b i t s this relief
. See 131 S. Ct. at 1398 (“We now hold that revie w under § 2254(d)( 1) is limit ed to the rec ord that was befor e the state court that adjudicate d the claim on the merits.”). Thoug h Wil kens cit es Sheppard v. Bagley , 657 F.3d 338, 343 (6th Cir. 2011), whe re one post- Pinholster panel considered gr anting an evidentiary hear ing to supplement its § 2254(d)( 1) revie w, we cannot overturn prior p an el s rec og nizi ng that Pinholster limit s § 2254(d)( 1) revie w to the fac ts befor e the state courts. See, e.g. , Bray v. Andrews , 640 F.3d 731, 737 (6th Cir. 2011) (citing Pinholster , 131 S. Ct. at 1 3 9 8 , 1400); see also Salmi v. Sec’ y of Health & Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985) (“The prior decision rema ins controlling authority unless an inconsistent decision of the United States Supreme Court re q u ires modification of the decision or this Court sitti ng en banc overr ules the prior de cision.”).
I V. I neff ective A ssistance of Counsel Claim
Under Strickland v. W

ashington , a defe ndant claiming ineffe ctive assistance of counsel must show that “counse l’s repr esenta tion fell below an objective s t andard of rea sonablene ss” and demonstrate prejudice
. 466 U.S. 668, 687–88 (1984). Wil kens argues that his counsel should have moved to suppress his statements to two detec tives reg arding his previou s en counter s with M.C. beca use the detec tives obtained the statements afte r p l ac i n g him in “custody ” without a Miranda
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war ning. See Miranda v. Arizona , 384 U.S. 436, 478–79 (1966) (holding that police cannot question
an individual under custody befor e notify ing him of the rig ht to rema in silent, t h e ri gh t t o an attorney , and the possible le g al conseque nces of speaking ). Fa iling to do so violated his Six th and Four teenth Amendment rig ht to counsel, he contends, beca use re gardless of whether the motion would have ultimately succe eded, any rea sonable counsel would have at least attempted to suppress the evidence as sufficie ntly constitutionally suspect. See Combs v. Coyle , 205 F.3d 269, 286 (6th Cir. 2000) (h o l d ing that counsel rende red ineffe ctive assistance by failing to object to a “constitutionally suspect” use of evidenc e). The g overnme nt responds that fairminded jurists could disag ree . A. No Def

icient Perfor

mance
When combined with AEDPA defe renc e, our revie w of trial counsel’s perf ormanc e become s “doubly defe rential” : we evaluate “whe ther there is any rea sonable argument that counsel satisfied Strickland ’s defe rential standard.” Foust , 655 F.3d at 533– 3 4 (i nterna l quotation marks omitted) (quoting Pinholster , 131 S. Ct. at 1403; Richter , 131 S. Ct. at 788). Wil kens argues that we should revie w this prong of the ineffe ctive-a ssistance claim de novo beca use the state appellate court failed to deter mine Wil kens’s noncustodial status from an objective person’ s viewpoint. The lang uag e of the state opinion direc tly contra dicts this asser tion. See R. 16-21, at 4 (noting that deter mination of custody “does not depend on the subjective view of the
. . . defe ndant” and proce eding from the view of “a rea sonable pe rson in the def endant’ s position”). AEDPA def ere nce a pplies.
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arden Although his conver sations with the detec tives occur red at home, Wil kens maintains that the objective circ umstances of the encounte r—the prolong ed and acc usatory rapid-f ire questioning, the detec tives’ insistence that he direc t them from room to room, and his inability to speak to his
ro o m m ate—tra

nsformed his home to a custodial environment, trig g ering his rig ht to a Mir a n d a
war ning. See Stansbury v. C aliforni a , 511 U.S. 318, 324 (1994) (“[T] he only rele vant i nquiry [i n deter mining custody ] is how a rea sonable man in the suspect’s position would have understood his situation.” (quoting Berke mer v . McCarty , 468 U.S. 420, 442 (1984))) ; Orozco v. Tex as , 394 U.S. 324, 327 (1969) (dee ming a suspect “in custody ” when police confine d him to his bedroom during questioning, beca

use Miranda require s war nings whene ver police deprive suspect of “ his free dom of action in an

y s i g nificant way ” (quoting Miranda , 384 U.S. at 477 (empha sis added in Orozco ) (inte r n a l q u o ta ti o n ma rks omitted))). The Michig an Court of Appea ls disag ree d, concluding that “[a]
rea sonable pe rson in defe ndant’s position would have fe lt free to leave.”
Wil kens exagg era

tes the favor ablene ss of the state rec ord on habea s appea l, arguing that two detec tives rele ntlessly interrog ated h i m u n til he g ave them the answe rs they wanted. The actua l
rec ord reve als a more modera te course of events. Two detec tives “re quested that [he] consent to a
sear ch of [hi s] home,” and Wil kens consente d. After rec eiving this consent but prior to the sear ch, Detec tive Peto sat with W ilkens at hi s kitchen table a nd said, “L et’s talk a little bit, y ou know, try
an d rela x a li ttle bit.” Acc ording to Wil kens, t he conversation eventually beca me “intense,” wi t h b oth detec tives “throwing questions at [ him] one after another” and every one “talkin’ at t he same

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time.” He complains that Peto becam e co n fu s ed as a result of the disorg anized conver sation and misrecor ded his statements in the police r eport.
But a fairminded jurist could conclude that counsel acte d rea sonably in choosing not to move for suppression, g iven the wea k evidenc e sug g esting that Wil kens was in custody at the time he made these statements. At best, the rec ord reve als that Wil kens participa ted in an unpleasa

nt conver sation with the detec tives and that, after the fac t, he felt dissatisfied with the detec tives’ cha rac terization of his statements. I n o t h er words, Wil kens’s testimony throug hout criticizes the detec tives’ inaccurac y , rathe r than their coer civene ss. Nothing sug g ests that this tableside conver sation, though antag onistic, was involuntary : Wil kens provides no evidenc e that the detec tives preve nted him from moving elsewhe re or from termin at i n g t h e conver sation. The detec tives enter ed the home upon Wil kens’s consent; the conver sation occur red in a casua l setting, at Wil kens’s own kitchen table; and Detec tive Peto fra

med the conver sation as an occa sion to “talk a littl e bit” and “re lax a bit,” though the conve rsation eve ntually prog resse d to a more “ intense” e x chang e.
Given the conver sation’s mild beg inning, a rea sonable person woul d have felt fre e to stop the conver sation or to excuse himself from the kitchen if he sensed that the conver sation had become too rankling
. See Stansbury , 511 U.S. at 322 (“[T]he ultimate inquiry is simply whether there was
a formal arr est or restra int on fre edom of movement of the deg ree associate d with a formal arr est.” (interna l quotation ma

r k s , a lt e r a ti o n s , a nd citations omitted)). Wil kens’s and Peto’s testimonies both acknow ledg e that Peto g leane d the statements at issue during the course of this conver sation, prior
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to the detec tives’ sear ch of the house. There fore , the statements that W i l k en s n o w wishes to suppress occur

red in a noncustodial setting, and a fairminded jurist c ould c onclude that Wil kens’s counsel acte d competently in declining to pursue a suppression motion with such a low probability of succ ess. Additionally , Wil kens maintains that “[he] was questioned repe atedly by both det ec t ives” dur i n g t h e s ea rc h, as well. But here , too, Wil kens exagg erates the streng th of his case . As a preliminary matter, he fails to identify which of the incriminating statements the detec tives obtained
as a result of the mid-sear ch questioning, as opposed to the pre- sear ch kitchen-ta ble conver sation. Fur thermore , in char acte rizing this sear ch as a coer cive event in which the detec tives “for the most part [ did] not let[] him out of their sig ht,” he g losses over the consensua l backdr op of t he search. Wil kens’s subjective impression that “[he] wa s n o t allowed to fre ely walk around [hi s] home” is irrele vant: a rea sonable person in defe ndant’s position would not fee l imprisoned by the very sear ch to which he consente d. His elabor ations in the aff idavit reve al that the detec tives merel y “w o u ld direc t [hi m] to a room that they intended to sear ch and stay [] with [hi m] for most of the sear ch.” The fac t that the detec tives g ener ally ref raine d from sear ching rooms without Wil kens’s prese nce and oversig ht may just as well evince their respect for his ownership of the house, rather than a desire to confine a

suspect. More over, Wilkens’s own attestation of the events belies his the ory : the fac t that the detec tives would stay with him for “most” of the time, rathe r than all, sug g ests that Wil kens left the de tectives’ pr esenc e fr om time to ti me and that nobody stopped him.

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arden Finally , Wil kens argues t h at o n e o f the detec tives “blocke d” and “prohibited him” from talking to his roommate, thus “cut[ting] off W i l k ens’s only source of moral support” and
exacer bating the custodial nature of the situation. But Wil kens’s aff idavit—the sole evidenc e in the
rec ord reg arding these mid-sear ch interac tions—merely decla res that he attempt ed t o talk to his roommate at one point during the sear ch, and that one of the detec tives “told
. . . [hi m] that he wanted to talk to her first.” A detec tive’s reque st to speak to the roommate first does not amount to blocking or prohibiting con t ac t , o r “cutting off” Wil kens from moral support. Wil kens does not alleg e that he tried to contac t t h e ro ommate l ater or t hat t he detectives prohibit ed him from doing so. Nor does he attempt to connec t this fact to the relevant st andar d: whether a re asonable person would fee l that the detec tive deprive d him of “his fre edom of action i n any signific ant way ” by asking to speak to the roommate first. Be cause a court sitti ng in habea s must limit its revie w to the state rec ord under these circ umstances, see Pinholster , 131 S. Ct. at 1398, Wil kens cannot supplement an inade quate a ffidavit with exag g erations in t he brie f.
Given the dear

th of rec ord evidenc e sug g esting custody , a fairminded jurist could conclude that Wil kens’s counsel acte d competently in focusing his eff orts elsewhe re. See Richter , 131 S. Ct. at 788 (explaining that Strickland re q u i re s a showing of “incompete nce under ‘pre vailing profe ssional norms’” (quoting Strickland , 466 U.S. at 690)).

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B. No Prejudice
Wil kens fa i l s on the prejudice factor as well. He urg es t hat we revie w t his fac tor de novo beca use the state appellate court decide d his ineffe ctive-a s s i s t ance claim solely on the defic ientperf ormanc e prong . See W

iggins v. Smith , 539 U.S. 510, 534 (2003) (re viewing prejudice fac tor of ineffe ctive-a ssis t an ce h ab eas claim de novo beca use state court peg g ed its decision solely on defic ient perf

ormanc e); but see Richter , 131 S. Ct. at 784 (re quiring habea s petitioners to show “no
rea sonable basis for the state court to deny relief ” and observing that “[t] his is so whether or not the state court reve als which of the elements in a multipart claim it found insufficient, for § 2254(d) applies when a ‘cla im,’ not a component of one, has been adjudicate d” (empha sis added) ). We need not deter mine what level of defe renc e to apply , howeve r, beca use even under the de novo standard Wil kens fa ils to demonstrate prejudice
. “To establish prejud i ce , a defe ndant must show a rea sonable probability that, ‘but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.’” McCalvin

v. Y ukins , 444 F.3d 713, 722 (6th Cir. 2006) (citin g S t r i ck l a nd , 466 U.S. at 694); Strickland , 466 U.S. at 694 (“A rea sonable probability is a prob abil ity sufficie nt to undermine confide nce in the outcome.”)
. L ike the petitioner in McCalvin , Wil kens fails to demonstrate a probability of chang ed outcome “suff

icient to undermine confide nce” beca use, even if his counsel had filed the motion to suppress, the trial court would have almost c erta inly denied it as meritless. Given the alre ady slim

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likelihood that the district court would have suppressed Wil kens’s statements, we need not examine what pre judice he mig ht have a

voided if he ha d succe eded in a motion to s uppress.
V. Conclusion
We affir m the district court’s de nial of Wilkens’s habea s petition.

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