*

The Honorable Thomas B. Russell, United States District Judge for

the Western District of Kentucky, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0112P (6th Cir.)

File Name: 04a0112p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ROBERT HENRY KETCHINGS

JR.,

Petitioner-Appellee,

v.

ANDREW JACKSON, Warden,

Respondent-Appellant.

X

-

-

-

-

>

,

-

-

-

-

N

No. 03-1054

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-73141—Nancy G. Edmunds, District Judge.

Argued: March 17, 2004

Decided and Filed: April 19, 2004 

Before: KRUPANSKY and GILMAN, Circuit Judges;

RUSSELL, District Judge.*

2 Ketchings v. Jackson No. 03-1054

_________________

COUNSEL

ARGUED: Debra M. Gagliardi, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

Phillip D. Comorski, Detroit, Michigan, for Appellee.

ON BRIEF: Debra M. Gagliardi, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

Gerald Lorence, Detroit, Michigan, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Robert Henry

Ketchings Jr. was tried by a jury in a Michigan state court and

convicted of second-degree murder, assault with intent to

inflict great bodily harm less than murder, intentional

discharge of a firearm at a dwelling, and the use of a firearm

in a felony. The charges arose from Ketchings’s involvement

in a drive-by shooting in Detroit. After exhausting his statecourt remedies, Ketchings petitioned the district court for a

writ of habeas corpus. He argued, among other things, that

the length of his sentence was unlawfully extended because

of his refusal to admit that he was guilty of the offenses for

which he was convicted. Ketchings contended that his

sentence was therefore imposed in violation of his right

against self-incrimination, a right enshrined in the Fifth

Amendment to the United States Constitution.

The district court concluded that the state court had

unreasonably applied the relevant holdings of the United

States Supreme Court regarding the Fifth Amendment. It

therefore granted a conditional writ of habeas corpus, to

become effective unless Ketchings is properly resentenced by

another state trial judge. Michigan now appeals. For the
No. 03-1054 Ketchings v. Jackson 3

reasons set forth below, we AFFIRM the judgment of the

district court. 

I. BACKGROUND

A summation of the material facts is provided by the

Michigan Court of Appeals:

At trial, the evidence established that defendant’s

friend had been robbed the night before the drive-by

shooting in question. The next day, defendant, along

with three other persons, sought revenge for the robbery.

They set out in a car in search of “Rick,” the alleged

robber. Defendant was armed with a .380 automatic and

the other persons in the vehicle were likewise armed with

an AK-47 and a 9 millimeter semi-automatic pistol.

They stopped in front of a house looking for Rick, and

unable to find him, emptied a barrage of gunfire at the

house, outside of which children were playing. Although

testimony at trial indicated that defendant’s gun jammed,

witnesses testified that defendant raised himself out of

the driver’s side window of the car as he fired at the

house. Spent shell casings were later found at the scene

belonging to both defendant’s .380 automatic and the

codefendant’s 9 millimeter weapon. A nine-year-old girl

who was playing outside of the house was shot and killed

as a result of the gunfire.

People v. Ketchings, 1999 WL 33437836, at * 3 (Mich. App.,

Aug. 20, 1999) (per curiam) (unpublished). The drive-by

shooting took place on October 29, 1994. Ketchings was 19

years old at the time. The forensic evidence established that

the victim was killed by a 9 millimeter bullet, which did not

come from the gun used by Ketchings.

On April 30, 1997, Ketchings was convicted on a number

of charges arising out of his involvement in the drive-by

shooting. He was sentenced to concurrent terms of

imprisonment of 40 to 80 years for second-degree murder, 5

4 Ketchings v. Jackson No. 03-1054

to 10 years for assault, and 2 to 4 years for the discharge of a

firearm, and to a consecutive 2-year term for using a firearm

to commit a felony. The sentence imposed on the seconddegree murder count was nearly twice the maximum

recommended by the Michigan Sentencing Guidelines, which

establishes a relevant range of 10 to 25 years’ imprisonment.

In his appeal to the Michigan Court of Appeals, the last

court in Michigan to address the merits of his case, Ketchings

presented the following six claims:

1. that the trial court abused its discretion in admitting

other-acts evidence;

2. that the trial court erred in failing to instruct the jury

on the cognate lesser included offenses of voluntary and

involuntary manslaughter and careless, reckless, and

negligent use of a firearm with death resulting;

3. that the trial court abused its discretion when it

denied Ketchings’s motion for a mistrial;

4. that Ketchings was denied his right to a speedy trial;

5. that the trial court improperly took Ketchings’s

failure to admit guilt into account at sentencing;

6. that his sentence of 40 to 80 years for second-degree

murder violates the principle of proportionality.

The Michigan Court of Appeals rejected all six claims.

(Although the appellate court found that the trial court had

erred when it admitted into evidence certain other bad acts,

this error was determined to be harmless.) 

Ketchings sought habeas relief in the district court after

exhausting his state-court remedies. In a 51-page opinion, the

district court denied habeas relief with respect to all but the

fifth of Ketchings’s claims: that the trial court improperly

took Ketchings’s failure to admit guilt into account at
No. 03-1054 Ketchings v. Jackson 5

sentencing in violation of his Fifth Amendment rights. The

district court concluded that the Michigan Court of Appeals’s

application of United States Supreme Court precedent in

evaluating Ketchings’s fifth claim was objectively

unreasonable. Ketchings’s petition for a writ of habeas

corpus was therefore conditionally granted, subject to an

appropriate resentencing by a state trial judge other than the

one who originally imposed the sentence. The state appeals.

II. ANALYSIS

A. Standard of review

Ketchings filed his petition for a writ of habeas corpus after

the effective date of the Antiterrorism and Effective Death

Penalty Act of 1996, principally codified at 28 U.S.C.

§ 2254(d). Habeas relief may be granted only if the state

court’s decision either (1) “resulted in a decision that was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States; or (2) resulted in a decision that

was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(1)-(2).

The Supreme Court explained these concepts in Williams

v. Taylor, 529 U.S. 362, 412-13 (2000):

Under the “contrary to” clause, a federal habeas court

may grant the writ if the state court arrives at a

conclusion opposite to that reached by [the Supreme

Court] on a question of law or if the state court decides

a case differently than [the Supreme Court] has on a set

of materially indistinguishable facts. Under the

“unreasonable application” clause, a federal habeas court

may grant the writ if the state court identifies the correct

governing legal principle from [the Supreme Court’s]

decisions but unreasonably applies that principle to the

facts of the prisoner’s case.

6 Ketchings v. Jackson No. 03-1054

State-court findings of fact must be accepted unless

rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). We review the district court’s legal conclusions

de novo. Hudson v. Jones, 315 F.3d 212, 215 (6th Cir. 2003).

B. The state court’s decision involved an unreasonable

application of Supreme Court Precedent

The Michigan Court of Appeals’s entire discussion of

Ketchings’s Fifth Amendment claim is contained in the

following paragraph:

Defendant’s next claim of error on appeal is that the

trial court improperly took defendant’s failure to admit

guilt into account at sentencing. We disagree. A

sentencing court cannot, in whole or in part, base its

sentence on a defendant’s refusal to admit guilt. People

v. Yennior, 399 Mich. 892; 282 NW2d 920 (1977). See

also People v. Adams, 430 Mich. 679, 687, n 6; 425

NW2d 437 (1988). However, evidence of a lack of

remorse may be considered in determining an

individual’s potential for rehabilitation.Peoplev.Wesley,

428 Mich. 708, 711; 411 NW2d 159 (1987) (opinion of

Archer, J.). As previously explained by this Court in

People v. Calabro, 166 Mich.App 389, 396; 419 NW2d

791 (1988), “[A] defendant’s lack of remorse may be

considered by a court in imposing sentence. It is

undeniable that when a defendant is remorseful, it is

urged in mitigation by him or on his behalf, and it is

healthful to ventilate the process from both perspectives

rather than to sanction the use in amelioration while

condemning it in aggravation.” See also People v.

Houston, 448 Mich. 312, 323; 532 NW2d 508 (1995). In

this case, it is clear from our review of the full comments

made by the sentencing judge that the court was merely

addressing the factor of remorsefulness in the context of

defendant’s rehabilitative potential and avoidance of

responsibility for his actions. There is no indication in

the record that defendant’s sentence was improperly
No. 03-1054 Ketchings v. Jackson 7

influenced by his failure to admit guilt or that the court

was attempting to punish defendant for exercising his

constitutional right to maintain his innocence. Wesley,

supra; People v. Stewart (On Remand), 219 Mich.App

38, 44; 555 NW2d 715 (1996); People v. Drayton, 168

Mich.App 174, 178; 423 NW2d 606 (1988). We

therefore find no error.

People v. Ketchings, 1999 WL 33437836, at * 7 (Mich. App.,

Aug. 20, 1999).

The Supreme Court has held that a defendant’s Fifth

Amendment right against self-incrimination “is fulfilled only

when a criminal defendant is guaranteed the right ‘to remain

silent unless he chooses to speak in the unfettered exercise of

his own will, and to suffer no penalty . . . for such silence.’”

Estelle v. Smith, 451 U.S. 454, 468 (1981) (quoting Malloy v.

Hogan, 378 U.S. 1, 8 (1964)). This guarantee extends to the

sentencing phase of the trial. Mitchell v. United States, 526

U.S. 314, 328-29 (1999) (“In accordance with the text of the

Fifth Amendment, we must accord the privilege the same

protection in the sentencing phase of ‘any criminal case’ as

that which is due in the trial phase of the same case.”). 

In its brief, the state “does not dispute . . . that a petitioner

retains the privilege against compelled self-incrimination

through the sentencing phase of criminal proceedings.” The

state instead argues that the “trial court never attempted to get

Ketchings to admit his guilt.” Indeed, the Michigan Court of

Appeals found “no indication in the record that defendant’s

sentence was improperly influenced by his failure to admit

guilt or that the court was attempting to punish defendant for

exercising his constitutional right to maintain his innocence.”

Ketchings, 1999 WL, at * 7.

A state court’s findings of fact are binding in a federal

habeas proceeding unless they are rebutted by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1). The record in

this case provides such clear and convincing evidence. An

8 Ketchings v. Jackson No. 03-1054

objective review of the transcript makes clear that the

sentencing judge was not, as the Michigan Court of Appeals

found, “merely addressing the factor of remorsefulness in the

context of defendant’s rehabilitative potential . . . .”

Ketchings, 1999 WL, at * 7. To the contrary, the relevant

portion of the sentencing-hearing transcript reads as follows:

THE COURT: The first thing I have to say is that you

indicate to the Court that you’re not guilty. And as your

lawyer will tell you and I’ll tell you one of the things the

Judge considers in sentencing, in determining what the

sentence should be is whether a person can be

rehabilitated. But if you don’t think you did anything

wrong to start with and you don’t accept what a jury says

–

DEFENDANT KETCHINGS: But –

THE COURT: I’m just giving you my thinking now.

Can I talk? I didn’t interrupt you.

DEFENDANT KETCHINGS: I understand.

THE COURT: How can you be rehabilitated? How

can you ask me to put you back in the community? How

do I know you’re not going to go back out and do

something else like this and say, hey, judge, I didn’t do

it. I wasn’t part of it.

We have and I don’t know if you’re ever heard me say

this, but the jury system, you, know, sometimes I like it

and sometimes I don’t. But we’re one of the very few

countries in the world that has a jury, a judge of their

peers. They’re people like you. They judge you. And

I’m sort of upset that you don’t acknowledge that you did

something wrong at this point.

. . . .
No. 03-1054 Ketchings v. Jackson 9

You see, to me, young people like you the key to

rehabilitating is say, hey, I did something wrong. I’m

sorry, man. I was in the car, it went over and shot an

innocent child along with other people.

. . . .

All right. It’s an awesome power of a judge to

sentence somebody. . . . And it’s a heavy responsibility

and it’s not what I particularly like, but it has to be done

and it has to be done to punish and protect society, to

rehabilitate you which is why I said the statement I did in

the beginning. One of the issues we discussed here is

can you be rehabilitated? And you can’t be rehabilitated

if you say you didn’t do anything. You were here for this

trial.

As the district court found, “the [sentencing] judge referred

negatively directly and indirectly to [Ketchings’s] continued

assertion of his belief in his innocence and implied that

[Ketchings] would be sentenced more leniently if he accepted

the jury’s verdict, that is, if he gave up his Fifth Amendment

privilege to . . . refuse to admit guilt.” Further contradicting

the Michigan Court of Appeals’s characterization that the

sentencing judge was concerned only with Ketchings’s lack

of remorse and not with his unwillingness to admit guilt is the

fact that Ketchings made a lengthy statement expressing his

remorse immediately prior to the sentencing judge’s

comments quoted above. The relevant portion of the

sentencing-hearing transcript reads as follows:

THE COURT: Okay. We’ve heard from everybody

except you, Mr. Ketchings. Is there anything you want

to tell me before the Court imposes sentence?

DEFENDANT KETCHINGS: Yes. I do have remorse

for the family. I do like to apologize for the things that

had happened and I am truly sorry. But I still feel that

I’m not guilty of this crime that I’ve been charged

10 Ketchings v. Jackson No. 03-1054

with. . . . And the prosecutor, she don’t know me. She

really don’t. She can’t even see what type of character I

am in the world. It’s just a bad situation that did happen.

I didn’t, you know --

THE COURT: Don’t use that expression.

DEFENDANT KETCHINGS: I’m sorry. 

Everybody saying I’m just this awful person that I’m

really not. And I’m quite sure if she knew me in the

world, she would be part of the persons who said I was

always a true friend to her and to the victim’s family.

And I feel that giving me 20, 40 years of incarceration

that’s not going to bring the family members back or to

pay back with my heart. And I can’t feel how the family

members feel for losing their child, but I can sympathize

because I would hate for that to happen to my son. And

I can only imagine how they feel. I know that she’s truly

upset, you know.

When this crime happened, my son was just born three

days prior to this case. And I was very truly upset, you

know, to find out what had happened. And I just looked

at my son, and, you know, tears came from my eyes.

And I do, really do feel in my heart that I’m truly sorry

for the family members at what happened. And, you

know, I do have a strong family background even though

I made some wrong decisions in my life, you know. And

my parents always taught me to be respectful to others,

you.

But, you know, I just can’t say nothing more. I’m

truly sorry.

The fact that the sentencing judge criticized Ketchings for

his failure to admit guilt even after he made the above-quoted

remarks clearly contradicts the Michigan Court of Appeals’s

finding that the sentencing judge concerned himself only with
No. 03-1054 Ketchings v. Jackson 11

remorsefulness and not with the admission of guilt. In sum,

whether evaluated as “an unreasonable application of

[] clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or

as “an unreasonable determination of the facts in light of the

evidence,” 28 U.S.C. § 2254(d)(2), the Michigan Court of

Appeal’s opinion does not withstand constitutional scrutiny.

The state, as a final point, raises the possibility that on

remand a sentence of 40 to 80 years for second-degree murder

might again be imposed based on other factors. That

outcome, although possible, is far from certain in light of the

Michigan Sentencing Guidelines. In addition, such a

possibility does not affect the appropriateness of resentencing

before another judge as the remedy for the Fifth Amendment

violation that occurred in this case.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court.