* The Honorable Thomas B. Russ ell , Uni ted St ates Dist ric t Ju dge f

or the Western District of Kentucky, sitt ing by designati on. 1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206 ELECTRO NIC CIT

ATION: 2004 FED App . 0112P (6th C ir.) File Name: 04a01 12p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ R OBER T H ENRY K ETCHINGS J R ., Petitioner-Appellee,

v.
ANDREW J ACKSO N , Warden, Responde nt-Appel lant. X - - - -> , - - - - N No. 03-1054

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-73141—Nancy

G. Edmunds, District Judge. Argued: March 17, 2004 Decided and Filed: April 19, 2004 Befor e: KRUPAN SKY and GI LMAN , Circuit Jud

ges; RUSSELL, District Judge. * 2 Ketchings v. Jackson No. 03-1054

_________________ COUNSEL ARGUED: Debra M . Gagli ardi, OFF ICE OF THE ATTORNEY GEN ER AL, Lansing, Michiga n, for Appellan t. Phillip D. Com ors ki, Detroit, Michigan, for Appellee. ON BRIE F: Debr a M. Gagliardi, OFFICE OF THE ATTORNEY GENER AL, Lansin g, Michigan, for Appellan t. Gerald Lorenc e, Detroit, Michigan, for Appellee.

_________________ OPINION

_________________ RON ALD LEE GI

LMAN, Ci rcuit Judge. Robert Henry Ketch ings Jr. was tr ie d b y a jury in a Michig an state court and convicted of second -degr

ee murde r, assau lt with inte

nt to infl i ct great bodily

harm less than murder, intentional disch arge of a firearm

at a dwelling, and the use of a firearm ina felony . The cha

rges a rose fromKetchings’s involvement ina drive-by

shooting in Detroit. Afterexhausting his statecourt remedies, K e tchings petitioned the district court for a writ of habeas corpus. He arg ued, among othe r thin gs , that the length of his sentence was unlawfu lly e xtended be cause of his refu sal to admi

tthat he was guilty

of the offenses for whichhe was convicted. Ketchings contend ed that hi s sentence was theref

ore imposed in violation of his right againstself-incrimination, a righ t enshrined in the F ifth Amendment to the United States Constitution.
T he district court concluded that the state court had unr eason ably

applied the relevant holdings of the United States Su pre me C our t re gar di ng t he F ift h Am end men t. It therefore gran ted a con

ditional w

rit of hab eas cor

pus, to become effective unless Ketchings is properly resentenced by another statetr ial judge. Michigan now appeals. F or theNo. 03-1054 Ketchings v. Jackson 3

reasons set forth below, we A FFIR M the judgment of the district court. I. BACKGROUND A summation of the material facts is provided by the Michiga n Court of A

ppeals: At t ria l, the evidence established that defendant’s friend had been robbed the night before the drive-by shooti ng in question. The next day, defenda nt, along with three other

persons, sought

re ve ng e f or th e r ob be ry. The y s et 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 lik ewisearmed wi

th anAK-47 and a 9 millimeter semi-automat i c pistol. They stopped in front of a ho use lo oking for Rick, and unable to find him, emptied a barrage of gunf ire at the house, outs ide of

which child ren wer e playing. Alth ough testimony at trial indicated

that defendant’s gun jammed, witnesses testifie d that def endant r aised hims e lf out of the driver’s side window of the car as he fire d at the house. Spent shel l casings were later found at the scene belonging to both defendant’s .380 automatic and the codefendant’s 9 millimeter weapon. A nine-yea r-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) ( pe r 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, wh

ich did not come fr om the gu n used by Ketching s. On April 30, 1997, Ketchings was convicted on a number of charg es a

ri sing out of his involvement in the drive-by s hootin g. He was sentenced to concurrent ter ms of imprisonment of 40 to 80 years for second-degree

murder, 5 4 Ketchings v. Jackson No. 03-1054

to 10 years for assaul

t, and 2 to 4 years for the discharge of a firear m, and to a consecutive 2-y ear term for usinga firearm to commit a fel ony. The sentence imposed on the seconddegreemurder c ount was nearly twice the maximum recommended

by the Michiga

n Sentencing Guidelines , which establishes a relevant range of 10 to 25 ye ars’ impr isonment.
Inhi s appe al to the Mi chigan Court of A

ppeals, t he last court in Michig an to addr

ess the merit s of his case, K etchi ngs present ed the fo llowing s ix claims: 1. that the trial court ab used its dis cretion

inadmitting other-acts evidence; 2. that the trial court er red in fa iling toinstruct the jury onthe cog

nate lesser included offenses of voluntary and inv o luntary

manslaughter and careless, re ckless, and neglige nt us e of a fi rearm w ith d eath re sult ing; 3. that the trial court abused its discretion w hen it denied K etching s’s motion f

or a mistr ial; 4. that Ketching s was den

ied his right to a speedy

trial;
5. that the trial court improperly took Ke tchings’s failu re to ad mit gu ilt i nto ac count at sen tenci ng; 6. that his sente nce of 40 to 80 years f

or second-degree mu rd er vi ol at es th e p ri nc ip le of pr op or ti on al it y. The Michi gan Cour t of Appe als reje cted all s ix claims. (Alth ough the appellate court found that the trial court had erred when it admitted into evidence certain oth er bad a cts, this error was determined to be harmless.) Ketch ings s ought habeas relief in the district court after exhausting his state-c ourt reme dies. In a 51-pag e opinion, the districtcourt denied habeas rel ie f with respect to all but the fifth of Ketch ings’s c laims: tha

t the tr ial c ourt impro

perly t ookKetchings’s failure to admit guilt into account atNo. 03-1054 Ketchings v. Jackson 5

sentencingin violation of his Fifth Am endment rights. The districtcourt concluded that the Michigan Court of Appeals’s applicationof United

States Supr

eme Court

p recede nt in evaluatingKetch ings ’s fifth c laim was objectiv ely unreasonable. Ketchings’s petition for a writ of habeas corpus was t

he refore conditionally

granted, subject to an appropr iate resent encin g by a state trial judge other than the one who originally imposed the sentence. The state ap

peals. II. ANALY SIS A. Standard of review Ketch ings filed

his petition for a writ of habeas corpus after the eff ective d ate of th e Antiter

rorism an d Effective Dea

th Pena lty Act of 19 96, princ ipally codifie d at 28 U.S. C. § 2254(d). Habea s relief may be gra nted only if the sta

te court’s decision eithe r ( 1) “resulted in a decision that was contrary to, or invo lved an un

reaso nable application of, clearly established Federal law, as determined by the Supre me Courtof the United States; or (2) resulted in a decision that wa s based on

an unrea sonable d

etermina tion of the

facts in light of the ev idence presente d in

the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The Supreme Court explained t hese concepts in Williams v. Taylor , 529 U.S. 362, 412-13 (2000): U nder the “con trary to” clau se, a fe deral ha

beas c our t may grant the writ if the state c ourt a rrives a t a co nclusionopposite t

o that re ached by [the

Supreme Court] on a question of law or if the state court dec ide s a case d iffere ntly than [the Su

preme Cou

rt] has on a set of materially indistinguishable f acts. Under the “unrea sonable

application” clause, a federal habeas court may grant t he writ if the state court identifies the correct go ve rning legal principle from [the Su

preme Cou

rt’s] decisions but unreasonably a pplies 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 unles s 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 cou r t’s deci sion involve d an unreason able applicatio n of Suprem e Court P recede nt The Michigan Court of Appeals’s entire discussion of K etchings’s Fifth Ame

ndment cl aim is cont

ained in t

h e following paragraph: Defendant’s next claim of err or on appeal is that the trial co u rt imprope

rly took defe

ndant’s f ailure to admit guilt into account at sentencing. We disag ree. A sentencingcourt cannot, in whole or in pa rt, base its sentence on a defe

ndant’s r efusal to admit gu ilt. People v. Yennior, 399 Mic h. 892; 282 NW2d 920 (1977). See also People v

. Adams, 430 Mich. 679, 687, n6 ; 425 NW2d437 (1988 ). H owever, evidence of a lack of remorse may be c onsi dered in determining an ind ividual’s potentia

l for rehabilit ation. People v. 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 c onsidered

by a court in im

posing se

ntence. It i s undeniab le that when a defendant is remor sefu l, it is urged in mitigati on by

him or on hi s behalf

, and it is healthful to ventila

te the pr ocess from both perspectives rather than to sa

nction th e use in ame lioration while condemningit

in a ggravation.” 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 addressingthe factor of remorsefulness in the context of defendant’s rehabilitative potential and avoidanc e of responsi bility for his act ions. The

re is no in

dication in t he record that defendant’s sentence was improper l yNo. 03-1054 Ketchings v. Jackson 7

influenced

by his failure to ad

mit gu ilt or that the court was attempting to punish defen dant for exer cising h is constitutional right to main tain his innocence. Wesley, supra; Peo

p le v. S tewar t (On Re mand), 219 Mich.App 38, 44; 555 NW2d

715 (1996 ); People v. Drayton, 168 Mich.App 174 , 178; 423 N W2d 60 6 (19 88). We therefore find no error. People v. Ketchings , 1999WL

33437836, at * 7 (Mich. App., Aug. 20, 1999). The Supreme Court has held t hat a def endant’ s Fifth Amendment

right a gainst self-inc rimination “is fulfille d only when a criminal defendant is guaranteed the right ‘to rema in silentunless he

chooses t o speak in the unfettered exercise of his ownwill, and t

o suffer no penalt y . . . for such silence.’” Estelle v. Smith , 451 U.S. 454, 468 (1 981) ( quot ing Malloy v. Hogan , 378 U.S. 1, 8 (1964)). This guarantee extends to the sentencingphase of the t

rial. M itchell v. United States , 526 U.S. 314, 328-29 (1999) (“In a ccordancewith t

he textof the Fifth Amendment, we must accor d th e privile ge the s ame protection

in the sen tencing 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 ret ains the privil ege a

gainst c ompelled

self-inc riminati o n throu gh the sentenc ing pha se of criminal proceedings.” The stateinstead argues that

the “trial court never attempted to get Ketch ings to admit hisguilt.” Indeed, the Mic higan Court of Appeals found “no indication in the record tha t defendant’s sentence wa s i mp ro pe rl y in fl ue nc ed by h is f ailure to admit guilt or that the court was attempting to punish defendant for exercising his constit

utional ri ght to maintain his innocence.” Ketchings , 1999 WL, at * 7. A state court’s findings of fact are bind ing in a federal habeas procee ding unle ss t he y are r ebutted by clea

r and convincingevidenc e. 28 U.S. C. § 2254(e)(1). The record in this case provides such c lear a nd convincing evidence. An 8 Ketchings v. Jackson No. 03-1054 objective re view of the transcript makes clear that the sente ncing j udge was not, as the Michigan Court of A

ppeals found, “merely a

ddressingthe factor of re

morsefu lness in the context of defendant’s rehabilitative potential . . . .” Ketchings , 1999 WL, at * 7. To the contrary , the relev ant portionof the sentencing-hearing transcript reads as follows:
THE COURT: The first thing I have to say is that you indicate to the Courtthat you’re

not guilty. And as y

our lawyer will tell y

ou and I ’ll tell

you one of

the things the Judge considers in sente

ncing, in deter

minin g what the sentence should be i s whethe r a pers o n can be rehabilitated. But if you don’t think y ou did anything wrongto start

with and you

do n’ t a cc ep t w ha t a ju ry s ays

– DEFEND ANT KETCHING S: But – THE COURT: I’m

just giving y ou my thinking now. Can I talk? I didn’t interrupt y ou. DEFENDANT KETCHI

NGS: I understand.
THE COURT: How can you b e reh abilitated? How can you ask me to put y

ouback in the community? How do I know you’re not go in g to go back out and do so mething else like

this and sa

y, hey , judge , I did

n’t d o it. I wasn’t pa

rt of it.
We have and

I don’t know if y

ou’re ever heard me say this, but the jury

sys tem, you , know, sometimes I like it and sometimes

I don ’t. But w e’re one of th e very f e w countries in the world that has a jury, a judge of the ir peer s. Th ey’ re pe op le li ke you . T he y ju dg e yo u. An d I’m sort of upset that you don’t acknow ledge that you did something

wrong a t this point.

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

You see, to me, yo ung peo

ple like y

ou the key

to rehabilitatingis say , hey , I did someth ing wrong. I ’m so rr y, man. I

was in th e c ar, it went over and shot an innocent child along with other people.

. . . . All right. It’s an awe some pow er of a j udge to sentence somebody. . . . An d it’s a he avy responsi bility and it’s not what I particularly like, butit has to be done and it has to be

done to pu

nish and pr

ote ct societ y, t

o rehabil itate you

which is w

hy I said the s tatement

Idid in the beginn ing. One of

the issue s we discu ssed her e is can you be rehabilitated? And you can’t be rehabilitated if you say you didn’t do a

nyt hing. Yo u were here for

this trial. As the dist rict c ourt f

ound, “the [ sente ncing] judge referred negati vely directly and indir ectly to [Ketchings’s] continued assertion of his bel ief in

his innocence and implied that [Ketching s] would be sentenced more leniently if he accepted the jury ’s verdi ct, that is, if he gave up his Fifth Amendment privilege to . . . refuse to admit guilt.” Further contradicting the Michigan Court of Appeals’s cha racterization that the sentencingjudge w as co ncerned only with Ketchings’s lack of remorse and not

with his unwillingness to admit guilt is the fact th at Ke tc hi ng s m ad e a le ng th y statem ent expre ssing his remorse immediately prior to the sen t encing judge’s comments

quoted above. The relevan t po rtion of the sentenc ing-he aring t

ranscr ipt read s as follow s: THE COURT: Okay. We’ve he ard fro m everybody except you, Mr. Ke tchings. Is there a nything y ou want to tell me before the Court imposes sentence? DEFENDANT KETCHI

NGS: Yes. I do have rem

orse fo r the famil y. I do like to a

pologize for the th in gs tha t had happened and I a

m truly sorr

y. Bu t I s till feel that I’m not guilty of this crime that I ’ve been char ged 10 Ketchings v. Jackson No. 03-1054

with. . . . An d the prosecutor, she don’t know me. She really don’t. She can’t even see what ty pe of character I amin the world. It’s just a bad situation that did happen. I didn’t, y ou know -- THE COURT: Don’t use that expression. DEFENDANT KETCHI

NGS: 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 al wa ys a tru e friend to he r a nd to th e v ic ti m’ s f am il y. And I feel that giving me 20, 40 y

ears of incarceration that’s not going to bring the family members back or to pay back with my hea

rt. And I can’t fee l how the f

amily members feel for losing their child, but I ca nsy mpath ize because I would hate for

that to happen to my son. And Ican only imagine how they fee l. I know that she’ s truly upset, you know. When this crime

happene d, my

son was just bornthree da ys p rior to this case. And I was ve ry truly upset, you know, to find

outwhat had happened. And I just looked at my s on, and, y

ou know, te ars came from my eyes. And I do, really

do fe e l in my heart that I ’m truly sorry for the family members a

t what happened. An d, yo u know, I do have a strong

famil y backgroun d even thou gh Imade some wrong decisions in my life, you know. And my parents alw ays tau ght me to

be respe ctful to ot

hers, you. Bu t, you know, I

just can’t say nothing

more. I’ m tr ul y so rr y. The fact that

the se ntenc ing ju dge 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 se ntenc ing ju dge concer ned himse lf only

withNo. 03-1054 Ketchings v. Jackson 11

remorse fulnessand

not with the

admission o f guilt. In su m, whether evaluated as “an unreasonable application of [] clearly established Fede

ral law, ” 28 U.S.C. § 2254(d)(1), or as “an unreasonable determination of the facts in light of the evi dence,” 28 U.S.C. § 2254(d)(2), the Michigan Court o f Appeal’s opinion does not withstand constitutional sc ru ti ny. The state, as a final poi nt , raises the possibility that on remand a sentence of 40 to 80 years f or second-degree murde

r might again b e imposed

based on

oth er f actors. That outcome, although possible, is far from certain in light of the Michigan Sentencing Guideline s . 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. CONCL USION For all of the reasons set forth ab ove, we AFFIRM the judgment of the district court.