NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0365n.06 No. 15-5609 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT SHANNON SHIELDS, Petitioner – Appellant,

v. UNITED STATES OF AMERICA, Respondent – Appellee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

OPINION

Before: BOGGS, BATCHELDER, and WHITE, Circuit Judges. BOGGS, Circuit Judge. Following a jury trial, Peti tioner Shannon Shields was convicted of (1) kidnapping resulting in the deat h of the victim, in violation of 18 U.S.C. § 1201(a); (2) carrying and using a firearm during and in relation to kidnapping, in violation of 18 U.S.C. § 924(c); and (3) attempted escape, in violation of 18 U.S.C. § 751(a). The district court determined that Shields was mentally reta rded and thus ineligible for the death penalty under 18 U.S.C. § 3596. Shields was sentenced to c onsecutive terms of life, ten years, and five years in prison, respectiv ely. Pursuant to 28 U.S.C. § 2255, Sh ields now asserts that even though trial counsel argued that Shield s’s confession “was not voluntar y” and that “coercive police activity overbore [his] will,” trial counsel provid ed constitutionally ineffective assistance by failing to argue in addition—before the very same trial judge—that Shields’s mental retardation prevented his waiver of his Miranda rights from being “knowing and intelligent.” A waiver of Miranda rights must be made “voluntaril y, knowingly, and intelligently.” Miranda v. Arizona , 384 U.S. 436, 444 (1966). Mental re tardation alone, however, does notNo. 15-5609, Shields v. United States

2 prevent a defendant from making a valid waiver of Miranda in order to confess to a crime. And even if Shields’s trial counsel had argued that it did, Shields cannot show a reasonable likelihood that the district court would have granted Shield s’s motion to suppress. We therefore affirm the denial of Shields’s motio n for post-conviction relief

. I The Kidnapping According to eyewitness testimony at tria l, at approximately 10:20 p.m. on May 19, 2004, Shields and his cousin Sonny a pproached a man named Jerrell Lott as he exited a grocery store in Memphis and got into hi s car. Either Shields or Sonny pointed a gun at Lott while the other demanded that Lott unlock hi s car and let them inside. Lo tt complied. The gunman kept the gun to Lott’s head as they drove away. Su rveillance video revealed that Sonny used Lott’s ATM card to withdraw funds from an ATM approxi mately one hour after the initial carjacking. Shields and Sonny then drove to the house of Sonny’s friend Lendzo Parker. According to Parker’s testimony, Shields and Sonny explained that they had robbed Lott and needed Parker’s help to get rid of the car. Parker an d Parker’s friend James St afford agreed to follow behind Shields and Sonny as they drove away in Lott’s car with Lott trappe d in the trunk. Two other witnesses testifie d to their departure. Parker testified that the men crossed into Arkansas, stopped at a gas station, and bought a gas can, which Stafford filled at the pump with gasoline. The men then resumed driving, first on a secluded paved road and then on an unpaved roa d. They parked by a field. Shields and Sonny got out of Lott’s car, opened Lott’s trunk, and directed Lott to get out. Lott begged for his life. When Lott attempted to run away, Sonny pulled a gun and fired at him. Shields grabbed the gun and ran after Lott, firing additional shots as he ran. Sonny followed. Parker testified that heNo. 15-5609, Shields v. United States

3 heard several more shots before Shields and S onny returned to the cars. The men then drove away in both cars, leav ing Lott’s body behind. After arriving in Memphis, however, Sonny no ticed that the cap to the gas can was missing, so the four decided to return to the field to find it. They were not successful, so they drove back to Memphis. They then looked for a pl ace to burn Lott’s car. Settling on a location near Hernando Street and Kerr Street, Shields parked the car in a field and lit it on fire, suffering burns to his arm and face in the process. Lott’s car was found by the police. Lott’s body was later found in Crittenden County, Arkansas, by the farmer who owned the field in which the body had been left. According to a medical examiner, Lott had been shot five tim es including once in the head, was wearing only his underwear, and was badly burned af ter having been set on fire. The Investigation Local television stations began airing survei llance-camera footage from the grocery store showing Shields and Sonny as they approached Lo tt’s car. On May 21, Sonny turned himself in to the Memphis Police Department, making statem ents that implicated himself, but largely blaming Shields. United States v. Shields , 480 F. App’x 381, 385 (6th Cir. 2012). Shields, meanwhile, went to his aunt’s hom e, where he explained that he had been working on a car and been injured in a car-battery fire. Shields changed clothes and shoes and asked for a ride to Grenada, Mississippi, where he could meet up with his girlfriend. Shields told his girlfriend that he had been injured in a barbecuing accident. His girlfriend took Shields to a nearby hospital, where he checked in under the pseudonym “Willie Oliver.” The hospital transferred him to a burn center in Greenville, Mississippi, where Shield s continued to use the pseudonym.No. 15-5609, Shields v. United States

4 Sonny told the police where to find Shields. Local law enforcement took Shields into custody in Greenville, and Memphis Police Detectiv e Joseph Pearlman and Sergeant Jasper Clay drove down to Greenville on May 24. When Pear lman and Clay arrived, Shields began to tell them, unprompted, that he was not a killer and that he wanted to tell them his side of the story. Clay stopped Shields and proceeded to go with him to the U.S. Marshals’ office at the federal courthouse in Greenville, where Sh ields was due to be arraigned. After giving Shields an opport unity to eat, Pearlman and Clay entered his holding cell and presented Shields with a Miranda -waiver form that lists the Miranda rights. 1 Pearlman testified that his practice was fi rst to turn the form over and ask the suspect about his education level, literacy, mental disabilities, and any r ecent pain-medicine or drug consumption, and then to ask the suspect to read the first line of th e form out loud and the remainder of the form silently. Pearlman testified that he followed this practice with Shields, who read the first line of the form aloud. Shields then said “I know my ri ghts, I’ve been arrested before , I know I don’t have to talk to you if I don’t want to.” Appellant’s Br. 9. P earlman testified that Sh ields then said, “I can stop talking any time I want to stop.” Shields also printed his name on the Miranda waiver form and signed it. According to Pearlman, Sh ields specifically stated “I understand my Miranda rights,” and he “was very cognizant and very aware a nd very eager to talk.” On the back of the Miranda waiver form, Pearlman had noted that Shields told him that he had been in special-educat ion classes in high school, that he had dropped out in the 11th

1 The waiver form articulated the rights as follows: (1) “You have the right to remain silent.” (2) “Anything you say can be used against you in court.” (3) “You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.” (4) “If you cannot afford a lawyer, one will be appointed for you before any questioning if yo u wish.” (5) “If you decide to answer questions now without your lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.”No. 15-5609, Shields v. United States

5 grade, and that he “could read some but was not that good at it.” Shields had also told the detectives that he had taken pa in medication for the burns he ha d suffered five days earlier. Shields then gave a 38-minute tape-recorded statement, which would be played for the jury at trial, implicating himself in Lott’s ki dnapping. Shields admitted, among other things, that he was at the scene of the carjacking, that he rode to the ATM, and that he was present when Sonny fired his gun at Lott and when Sonny set Lott’ s body on fire. Some of Shields’s statement sought to shift blame to Sonny: Shields said, for example, that he did not know that Sonny had a gun until the two were approaching Lott’s car, that Sonny threatened to kill Shields if he did not go along with the plan, that only Sonny fired the gun in the field, and that only Sonny was responsible for burning Lott’s body. 2
Shields’s Trial Shields stood trial in the United States Di strict Court for the Western District of Tennessee, with Judge Bernice Bouie Donald presiding. On August 19, 2008, Shields’s trial counsel moved to suppress Shields’s confession on the grounds that it was coerced and not voluntary. After this motion was made, and before Judge Donald ruled on it, Judge Donald held a pretrial hearing to determine whether Shields was mentally retarded so as to preclude the government from seeking the death penalty. Th e hearing spanned ten full days, including five days in November 2008 and five days in Ja nuary 2009. Shields and the government each called both expert and lay witnesses to testify to Shields’s mental cap acity and ability to function. Both parties submitted post-hearing memoranda. The parties stipulated to the definition of mental retardation in the Diagnostic and Statisti cal Manual of Mental Disorders (Fourth Edition–Text Revision) (DSM-IV-TR). According to the DSM-IV-TR, a finding of mental retardation has three requireme nts: (1) significantly subavera ge intellectual functioning as

2 Sonny and Shields each maintained that only the other of the two shot Lott.No. 15-5609, Shields v. United States

6 demonstrated by an IQ of approximately 70 or lo wer on an individually admi nistered IQ test; (2) concurrent deficits or impairment s in present adaptive functioning in at least two of various areas such as communication, self-care, work, and so on; and (3) onset of the mental retardation before age eighteen. On May 11, 2009, Judge Donald issued a 33-page order finding by a preponderance of the evidence that Shields was me ntally retarded and thus inelig ible for the death penalty. Among many other factors, Judge Donald considered Sh ields’s Wechsler-battery IQ scores, which are summarized as follows: 3
IQ Test Year Full Scale Score Verbal IQ Performance IQ WISC-R 1989 69 69 72 WISC-R 1992 73 68 82 WISC-III 1995 70 69 75 WAIS-R 1997 68 67 70 WAIS-III 2005 68 73 68

Judge Donald noted that when Shields was si xteen, “the Social Se curity Administration determined that [Shields’s] IQ scores were at the high end of the mentally retarded range and found several deficits in adaptive functioning,” qualifying Shields for Supplemental Security Income (SSI) payments. When Shields was tw enty-one, the Social Security Administration concluded that Shields was ment ally retarded but that he “d id not qualify fo r [additional] disability benefits because . . . there were occupational roles [tha t he] was capable of fulfilling.” Judge Donald also found that Shields had sporad ic employment history including jobs as a

3 Shields was born on May 6, 1981. The WISC is the Wechsler Intelligence Scale for Children; the WAIS is the Wechsler Adult Intelligence Scale. The “-R” suffix indicates a revised versio n; “-III” indicates a third edition. The Wechsler IQ tests gained widespread currency in the 1960 s. Although some of the IQ scores are over 70, Judge Donald considered that the scores were sufficiently lo w to satisfy the DSM-IV-TR standard. As part of her reasoning, Judge Donald considered the Flynn Effect, a phenomenon by which observed IQ scores generated by a given IQ test are said to increase, on average, by approxi mately three points for every ten years that the IQ test has been on the market. While Judge Donald declined to use the Flynn Effect to impose a mechanical downward adjustment of any of the IQ scores, the Flynn Effect could account for much of Shields’s four-point score increase between the 1989 and 1992 WISC-R test administrations.No. 15-5609, Shields v. United States

7 restaurant dish washer and a furniture mover, although “as an adult he has had no apparent ambition or goals in life” and “has alwa ys depended on a woman benefactor.” Only after this extensive inquiry into Shields’s mental capacity did Judge Donald return to a number of Shields’s pretrial motions incl uding his motion to suppress his confession. Judge Donald held an evidentiary hearing on the motion to suppress on August 13, 2009, and denied the motion four days later. No tably, although Shields’s motion sought to suppress his confession on the grounds that it was not voluntary , without arguing that it was not knowing and intelligent, Judge Donald specifically found not only that Shields confesse d of his own free will—i.e., voluntarily—but also that Shields had made a knowi ng an intelligent waiver under Miranda : After Defendant had eaten his lunch, the officers inquired of Defendant how he felt and whether he was in pain. Defendant responded that he was in some pain, but felt comfortable and well enough to talk to the officers. After the officers were satisfied that Defendant was both me ntally and physically able to make a statement, Sgt. Clay apprised Defendant of his Miranda rights. Defendant was not in cuffs or other restraints, but he was in a cell along with Detective Pearlman and Sgt. Clay. Defendant was alert and attentive a nd manifested no outward signs of being incoherent or otherwise incapabl e of giving a knowing, intelligent, and voluntary waiver of his rights. Using the term “ Miranda ” specifically, Defendant stated that he knew his right s and wanted to make a st atement. After being read his Miranda rights, Defendant signed a waiver of rights form. Detective Pearlman and Sgt. Clay witnessed Defendant’s signature at approximately 1:00 p.m. Defendant thereafter proceeded to make a statement about his involvement in the alleged offenses. Officers tape recorded their questions and De fendant’s answers. At a few points it was necessary to stop the tape briefly to inquire whether it was time for Defendant’s court appearance, but these pauses did not result in the omission of any material parts of Defendant’s interview.
In her order, Judge Donald “credit[ed] Detective Pearlman’s testimony that [Shields] did not manifest signs of being incapable of a knowing, intellig ent, and informed waiver of his rights” (emphasis added) when he agreed to spea k to Pearlman and Clay. Even though Shields’s defense counsel did not mention Miranda in his motion to suppress Shields’s statement, JudgeNo. 15-5609, Shields v. United States

8 Donald apparently conducted a full Miranda -waiver inquiry and conclu ded that nothing stood in the way of Shields’s making an effective Miranda waiver and confession. Jury trial commenced on October 19, 2009, and the jury returned a guilty verdict on October 23, 2009. Shields’s trial counsel did not object to the playing of Shields’s confession video at trial other than objecting to the use of portions of the vide o that were hard to understand, and to the accuracy of the captions superi mposed on the video during those portions. Shields , 480 F. App’x at 388 n.5. A panel of our court affirmed Shields’s c onviction, over Judge Clay’s dissent, in 2012. Id. at 381. Shields filed a motion to vacate hi s sentence on September 30, 2013. The district court denied Shields’s motion on April 8, 2015, and denied a cert ificate of app ealability. In 2016, noting that Judge Clay had dissented on the issue of whether Shields’s Miranda waiver was knowing and intelligent, we granted a certificate of appealability on the sole issue of whether trial counsel was ineffectiv e in failing to argue that the Miranda waiver was not knowing and intelligent.
II We review de novo a district court’s denial of a § 2255 motion to vacate a sentence for ineffective assistance of counsel. See Pough v. United States , 442 F.3d 959, 964 (6th Cir. 2006). To be entitled to relief, Shields has the bu rden of proving by a preponderance of the evidence that he received constitutiona lly ineffective assi stance of counsel. Ibid. Under Strickland v. Washington , a claim of ineffective assistance requires showing that “counsel’s representation fell below an objective standard of reasonableness,” 466 U.S. 668, 688 (1984), and that there is a “a reasonabl e probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694. “A reasonabl e probability is aNo. 15-5609, Shields v. United States

9 probability sufficient to undermine confidence in the outcome.” Ibid. “It is not enough . . . to show that the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693. Counsel’s errors must be “so serious as to depr ive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687; see also Harrington v. Richter , 562 U.S. 86, 112 (2011) (“The likelihood of a different result must be substantial, not just conceivable.”). A. Trial Counsel’s Performance Was Not Objectively Deficient An attorney’s performance is deficient under Strickland when, “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” 466 U.S. at 690. An atto rney is “strongly presumed to have rendered adequate assistance.” Ibid. An attorney’s action that “might be considered sound trial strategy” is not constitutionally deficient. Id. at 689. Shields argues that his trial counsel was ineffective for failing to move to suppress Shields’s confession on the grounds that Shields’s mental retard ation prevented Shields from making a knowing and intelligent Miranda waiver. True, Miranda has two dimensions: “voluntariness and comprehension.” Garner v. Mitchell , 557 F.3d 257, 263 (6th Cir. 2009) (en banc). And trial counsel attacked only the volun tariness of Shields’s Miranda waiver and not his comprehension of it. But mental retardation itself does not prevent a defendant from comprehending—and choosing to waive— Miranda rights, and Shields points to no case law to tell us otherwise. See
Garner , id. at 266 (where defendant with IQ of 76 “was not so mentally retarded that officers had reason to believe that he could not understand his rights,” a nd where his “conduct, speech, and appearance at the time of interrogation indicated that his wa iver was knowing and intelligent, notwithstanding his diminished mental capacity,” defendant’s confession to settingNo. 15-5609, Shields v. United States

10 house fire that killed five children was not obtained in violation of Miranda ). Shields has the burden to carry and we have never held that a mentally retarded person like Shields (i.e., a person with an IQ of 70 or below, with adapti ve deficits, whose mental retardation manifested itself by age eighteen) lacks the capac ity to make a knowing and intelligent Miranda waiver based on mental retardation alone. Cf. United States v. Macklin , 900 F.2d 948, 952–53 (6th Cir. 1990) (noting that the right to ma ke meaningful statements like c onfessions is based on the same free will that forms the basis “for the myriad valuab le rights of citizenship” like the right to vote, to testify, to contract, or to conduct a defense, a nd that defendants who have “the ability to avail themselves of the incidents of citizenship” should not be excluded from the rights or the responsibilities of citizenship “absent a compelling showing” that they are capable of exercising neither). Shields’s trial counsel therefore cannot be held to be de ficient for failing to argue that Shields’s mental retardation would intrin sically prevent him from making a valid Miranda waiver. Importantly, on direct appeal, even though the panel did not ha ve to consider the question of whether Shields’s confession was not knowing and intelligent (because trial counsel did not raise it), the panel nevertheless did consider the issue. Judge Merritt wrote for the majority: [E]ven absent waiver, Defendant’s claim fails on the merits. In Garner v. Mitchell , 557 F.3d 257, 264, 270–71 (6th Cir. 2009), this Court held that a defendant in the “‘borderline range of intelligence’” who also suffered from a troubled upbringing and poor education knowingly, inte lligently, and voluntarily waived his Miranda rights. Noting that “diminished mental capacity alone does not prevent a defendant from validly waiving his or her Miranda rights,” we reasoned that this factor must instead “be viewed alongside other factors, including evidence of the defendant’s conduct during, and leading up to, the interrogation.” Id. at 264-65. [. . .] Defendant’s cooperativeness and cohe rency thus demonstrate that he grasped both the nature of the charges against him and the consequences thatNo. 15-5609, Shields v. United States

11 could flow from his interactions with po lice to effectuate a knowing, intelligent, and voluntary waiver of his Miranda rights. See id. at 265. Shields , 480 F. App’x at 388–89. In his brief, Shields argues that if he has difficulty understanding things like “following multi-step recipes, paying bills, managing a checkbook, . . . the dangers of leaving a hot iron unattended, or how credit cards work” (although Shields appa rently understood enough to acquire and use credit cards in his own name even if he has not claimed responsibility for paying his credit-card bills), then “it is difficult to see how Shields could understand and appreciate complex abstract concepts like the full meas ure of his rights under [the] Fifth Amendment— much less what it means to ‘waive’ those rights or the dangers of doing s o.” Appellant’s Br. 32. In support of this argument, Shields relies on United States v. Betters , 229 F. Supp. 2d 1103, 1107 (D. Or. 2002); United States v. Robles-Ramirez , 93 F. Supp. 2d 762, 766 (W.D. Tex. 2000); and United States v. Aikens , 13 F. Supp. 2d 28, 34 (D.D.C. 1998). These cases are not the law in our circuit but w ould not help Shields even if they were. In Betters , the defendant’s Miranda waiver was held invalid where the mentally ill defendant was “highly intoxicated from alcohol, possibly under the infl uence of another drug, off her psychotropic medications, and likely in a manic state” when she purported to waive Miranda . In Robles-Ramirez , the defendant—who had an estimated IQ of either 66 or 72—spoke only Spanish, could neither read nor write, did not recognize the letters of the alphabet, functi oned at a second-grade level in arithmetic, and functioned at a pr eschool level in literacy. Th e defendant there also suffered from a neurological impairment and generally su ffered impairment in his ability to understand words. 93 F. Supp. 2d at 766. And in Aikens , the defendant was functionally illiterate, “did not know what the word ‘required’ meant,” 13 F. Supp. 2d at 32, and could not understand Miranda rights even when explained orally. What all these cases reflect is the general principle that theNo. 15-5609, Shields v. United States

12 validity of a Miranda waiver is based on the totality of such circumstances as the defendant’s background, education, and conduc t during the interrogation. See Garner , 557 F.3d at 264–65. But none of these cases help Shields make his case that he did not knowingly and intelligently waive Miranda , or that his mental reta rdation somehow precluded hi m from doing so. Instead, the facts indicate that Shields knew his Miranda rights, understood how to waive or invoke them, and—more than simply acquiescing to a law enfor cement officer’s invitati on to talk—asserted in considerable and correct detail hi s knowledge of the righ ts he wished to waive in order to make a confession. Thus, Shields has not carried his burden of proving that his trial counsel was constitutionally ineffective for failing to argu e that Shields’s mental retardation made his Miranda waiver unknowing or unintelligent. B. Shields Cannot Show Prejudice Moreover, Shields cannot pos sibly show prejudice as Strickland requires. Judge Donald’s eight-page order denying Shields’s moti on to suppress makes clear that Judge Donald did in fact consider not only the voluntariness of Shields’s confession but also whether it was knowing and intelligent under Miranda . To prevail, Shields would have to show a reasonable likelihood that if his trial counsel had simply thou ght to argue to suppress Shields’s statement as unknowing or unintelligent, Judge D onald would have suppressed it— and that the result of Shields’s trial would have been different. Bu t the likelihood that Ju dge Donald would have suppressed Shields’s confession if only Shields’s trial counsel had uttered one of the magic words “ Miranda ” or “knowing” or “intellige nt” is essentially nil in lig ht of the fact that Judge Donald—who knew all the facts concerning both Shields’s ment al faculties and his confession— expressly ruled that Shields’s conf ession was voluntary and knowing and intelligent. JudgeNo. 15-5609, Shields v. United States

13 Donald denied the motion to suppress only after holding both a ten-day evidentiary hearing on Shields’s mental capacity and a separate evidentiary hear ing on the motion to suppress. CONCLUSION In sum, the district court properly denied Shields’s moti on to vacate his sentence. We therefore AFFIRM

.No. 15-5609, Shields v. United States

14 HELENE N. WHITE, Circuit Judg e, concurring in the result. I concur in the result because Shields’s confession added little to the eyewitness testimony, and that testimony, toge ther with Shields’s burns, would have resulted in his conviction with or with out his confession. I would not conflate the issue whether Sh ields’s confession was voluntary—the issue decided at the suppression hearing—with the i ssue whether he was capable of waiving his Miranda rights.
I First, trial counsel was deficient in failing to argue Shields’s waiver was not knowing and intelligent. “A reviewing court must judge the reasonableness of counsel’s actions on the facts of the defendant’s case, viewed from counsel’s perspective at the time.” Higgins v. Renico , 470 F.3d 624, 631–32 (6th Cir. 2006). Following a ten-day Atkins hearing, the district court issued a thirty-three page order explaining in detail Shields’s mental limitations and concluding he is mentally retarded. Soon after the Atkins hearing, the district court held a hearing on trial counsel’s motion to suppress. Given the obvious connection between Shields’ s mental limitations and his capacity to knowingly and intelligently waive Miranda rights, trial counsel’s fa ilure to advance that argument is incomprehensible. Trial counsel filed his motion to suppress on August 19, 2008, after the government produced Sh ields’s recorded statement. Trial counsel did not supplement the motion to suppress to argue that Shields’s waiver of Miranda rights was not knowing and intelligent, even though the district court determined that Shields’ s functioning is that of a child in the range of eight to eleven years old, PID 5988, and he e xhibits “deficits or impairments in present adaptive functioning” in multiple areas including functional academic skills, homeNo. 15-5609, Shields v. United States

15 living, work, use of community resources, and self-direction. PID 5978, 5988, 5990–94. The court also observed that Shields lacks the abil ity to engage in “meaningful conversation,” and that although he may provide an swers to questions that sound plausible, further probing will show that “the answer origina lly given is . . . unreliable.” PID 5974. These findings provided strong support for the argument that Shields’s waiver of his Miranda rights was not knowing and intelligent. 4 Second, there was a reasonable probability that the district court would have granted a motion to suppress brought on the omitted grounds. The majority concludes that the district court’s purported finding that Shields’s Miranda waiver was knowing and intelligent evidences that there is no reasonable probability that the district court would ha ve granted a motion to suppress brought on those grounds. Maj. Op. at 12 (“the likelihood that Judge Donald would have suppressed Shields’s confession if only Shie lds’s trial counsel had u ttered one of the magic words “ Miranda ” or “knowing” or “intelligent ” is essentially nil in light of the fact that Judge Donald . . . expressly ruled that Shields’s confession was voluntary and knowing and intelligent.” (emphasis in original)). However, trial counsel’s motion to suppress Shields’s statement was brought solely on voluntariness grounds . The district court did not undertake the fact-specific inquiry required to determine wh ether Shields knowingly a nd intelligently waived his Miranda rights because the issue was not before it . Further, no part of the earlier Atkins hearing addressed Shield s’s ability to understand Miranda warnings. Cf. Maj. Op. at 7, 12. In ruling on the motion to suppress, th e district court simply observe d that Shields was “alert and attentive” and “did not manifest signs of being incapable of a knowing, intelligent, and informed waiver.” PID 6070. These statements do not in dicate or suggest that the court considered

4 Judge Clay concluded the same in his dissent in Shields v. United States , 480 F. App’x 381 (2012).No. 15-5609, Shields v. United States

16 whether Shields’s mental retardation contributed to an invalid waiver of Miranda rights. The inquiry would have differed had trial counsel argued Shields’s wa iver of his rights was not knowing and intelligent: whether the officers had reason to believe Shields comprehended the warnings and whether he had the actual mental abil ity to understand the warnings at the time of the interrogation. Garner v. Mitchell , 557 F.3d 257, 263 (6th Cir. 2009) (“while our primary focus must remain on what the interrogating o fficers could have concluded about Garner’s ability to understand the warnings, we may cons ider later-developed evidence of a defendant’s actual mental ability to understand the warnings at the time of the interroga tion. This is because, if it turns out by subsequent i nquiry that a defendant in his mind could not actually understand the warnings, the finder of fact may be more inc lined to determine in a close case that the police should have known that the defenda nt could not understand.”) Here, although Shields told Pearlman and Cl ay, the interrogating officers, that he had been in special educa tion classes, dropped out of high school , could read some but was not good at it, and that he had taken pain medicatio n that morning for the burns that Pearlman acknowledged were all over Shields’s face a nd arms, the officers explained none of the Miranda rights to Shields. PID 7400-01. Rather, Pearlm an had Shields read the first line of the Miranda rights form out loud, i.e., “You have the right to re main silent.” Pearlman testified that Shields said he knew his rights, had been arrested before, and knew that he did not have to talk to the officers if he did not want to. The officers did not follow up to determine whether Shields understood his remaining rights, particularly the righ ts to talk to a lawyer before being questioned and to have a lawyer present during questioning. No r did the officers follow up to determine whether Shields understood the warning that anything he said could be used against him in court. Had the issue whether Shields’s waiver of Miranda rights was knowing andNo. 15-5609, Shields v. United States

17 intelligent been before the district court, there is a reasonable probability that the district court would have concluded that there were strong grounds for finding an invalid waiver–definitely stronger than in Garner , 557 F.3d 257, on which the majority relies. Maj. Op. at 9–10. In
Garner , in stark contrast to the instant case, the interrogating officers “carefully read” Garner his Miranda rights and Garner “stated clearly . . . that he understood those rights.” 1 Id. at 265.
II Nevertheless, I concur in the result becau se I conclude the admission of Shields’s confession did not affect the outcome of the trial. As described in the majority opinion, Parker gave a detailed first-hand acc ount of Sunny’s and Shields’s acti ons. The only part he did not observe was who shot Lott in the woods. But Shields’s confession does not provide incriminating evidence on that poi nt, as Shields did not admit to being the shooter. Parker’s testimony and Shields’s burns, take n together, make it highly impr obable that suppr ession of the statement would have affected the outcome of the trial. On that basis, I concur.

1 Garner was nineteen, had a troubled upbringi ng, poor education, and an IQ of 76 that placed him in the borderline range of intelligence. Garner , 557 F.3d at 263. Unlike Shields, Garner completed 12 th grade and told the police that he could read. Id . at 276 (Moore, J., dissenting). Most importantly, unlike Shields’s interrogation, the officers in Garner confirmed that Garner understood each of th e rights and the consequences of waiving them by verifying each provision individually, “ Garner was carefully read his Miranda rights and stated clearly to officers that he understood those rights .” Garner , 557 F.3d at 265 (emphasis added).