*The Honorable Frank J. Magill, Circuit Judge of the United StatesCourt of Appeals for the Eighth Circuit, sitting by designation.1RECOMMENDED FOR FULL-TEXT PUBLICATIONPursuant to Sixth Circuit Rule 206ELECTRONIC CITATION: 2000 FED App. 0177P (6th Cir.)File Name: 00a0177p.06UNITED STATES COURT OF APPEALSFOR THE SIXTH CIRCUIT_________________CHRISTOPHERMACHACEK,Petitioner-Appellant,v.GERALDHOFBAUER, Warden,Respondent-Appellee.;>1No. 98-1815Appeal from the United States District Courtfor the Eastern District of Michigan at Detroit.No. 97-71761—Nancy G. Edmunds, District Judge.Argued: March 15, 2000Decided and Filed: May 26, 2000Before: MERRITT, DAUGHTREY, and MAGILL, CircuitJudges.*_________________COUNSELARGUED:Don Ferris, FERRIS & SALTER, Ann Arbor,Michigan, for Appellant. Laura Graves Moody, OFFICE OFTHE ATTORNEY GENERAL, HABEAS CORPUS2Machacek v. HofbauerNo. 98-18151The Honorable Nancy G. Edmunds, United States District Judge forthe Eastern District of Michigan.DIVISION, Lansing, Michigan, for Appellee.ON BRIEF:Don Ferris, FERRIS & SALTER, Ann Arbor, Michigan, forAppellant. Laura Graves Moody, OFFICE OF THEATTORNEY GENERAL, HABEAS CORPUS DIVISION,Lansing, Michigan, for Appellee.MAGILL, J., delivered the opinion of the court, in whichDAUGHTREY, J., joined. MERRITT, J. (p. 15), delivered aseparate dissenting opinion._________________OPINION_________________MAGILL, Circuit Judge. Christopher Machacek appealsthe district court's1denial of his application for a writ ofhabeas corpus following his conviction for first degree murderin a Michigan state court. At the district court level,Machacek argued that the Michigan trial court erred inadmitting an incriminating statement obtained in violation ofhis Fourth, Fifth and Sixth Amendment rights. The districtcourt denied Machacek's petition, finding his FourthAmendment claim barred byStone v. Powell, 428 U.S. 465(1970), and his other claims to be meritless. For reasons to bediscussed, we affirm.I. BackgroundOn December 30, 1986, petitioner Christopher Machacekand Steven Stamper, both sixteen years old at the time, tookMary Ann Hulbert, who was thirteen years old, into thewoods near Ann Arbor, Michigan, and shot her several times.Her body was found by two hunters on January 7, 1987. Anautopsy performed on January 8, 1987, revealed that MaryAnn had been shot seven times from both the front and back,with the death bullet penetrating her heart and lungs.No. 98-1815Machacek v. Hofbauer15________________DISSENT________________MERRITT, Circuit Judge, dissenting. I disagree withSection V of the Court’s opinion. As the Court’s quotation ofthe transcript sets out, the detective who interrogatedMachacek asked him to sign “directly below . . . a paragraphthat is called Waiver of Rights” which says “I have read . . .my rights, and . . . I waive them . . .” Immediately followingthis request for Machacek to sign the waiver, the detectivesaid “we’re not asking you to waive or give up any of yourrights or anything of that nature.” This latter statement wasfalse and in my opinion constitutes a blatant violation ofMiranda. The same detective then told Machacek the samething again, a second time: “[Signing the waiver] is notwaiving anything,” he said. Machacek then signed thewaiver. Although I am certainly not anxious to reverse thiscase, I do not see how we can say anything other than that wecannot sanction this classic violation ofMiranda.Maybe adetailed harmless error analysis could sustain the stateconviction, but I cannot go along with my colleagues’ viewthat no constitutional error happened. Machacek only signedthe waiver of rights after being twice told he was waivingnothing. In other words, he was falsely told that he could talkand get it off his chest without running the risk ofincriminating himself. I agree with the rest of the Court’sopinion.14Machacek v. HofbauerNo. 98-1815VI. ConclusionFor the aforementioned reasons, we affirm the districtcourt's denial of habeas relief to petitioner.No. 98-1815Machacek v. Hofbauer32We note that some of the audio recordings were made without theknowledge of the questioning officers.After the body of Mary Ann was discovered on January 7,1987, police went to Machacek's house and requested thatDiana McKenzie, Machacek's foster mother, bring him to thestation. Ms. McKenzie agreed and escorted Machacek to thestation. At the station, Detective Sergeant WilliamMcFarlane took Ms. McKenzie aside and told her that MaryAnn had been murdered. Ms. McKenzie then gave the policepermission to talk to petitioner.At 7:20 p.m., the formal interview began with Ms.McKenzie present. Because petitioner challenges theknowing and voluntary nature of his waiver of his Fifth andSixth Amendment rights, we quote excerpts from the audiorecordings of his interview at some length.2Detective Stamper: This is a statement of yourMirandarights. Number One: You have the rightto remain silent, which means you don'thave to talk to us if you don't want to.Do you understand that one?Machacek: Yes.Detective Stamper: Number Two: Anything you say can andwill be used against you in a courtof law.Do you understand that one?Machacek: Yes.Detective Stamper: Number Three: You have the right totalk to a lawyer and have him presentwith you while you are being questioned.Do you understand that one?Machacek: Yes.4Machacek v. HofbauerNo. 98-1815Detective Stamper: Number Four: If you cannot afford tohire a lawyer, one will be appointed torepresent you before any questioning, ifyou wish. Do you understand that?Machacek: Yes.Detective Stamper: Number Five: You can decide at anytime to exercise these rights and notanswer any question or make anystatements. Do you understand that?Machacek: Yes.Detective Stamper: Directly below is a paragraph that iscalled Waiver of Rights. It says, "I haveread the above statement of my rightsand I understand each of these rightsand having these rights in mind, I waivethem and willingly make a statement."We're not asking you to waive or give upany of your rights or anything of thatnature. Okay?Machacek: Yes.Detective Stamper: Can you read?Machacek: Yes.Detective Stamper: What I would like for you to do anddon't get offended when I ask thatbecause some people can't. What Iwould like you to do is read those overand make sure they read exactly the waythat I read them to you. Make sure youunderstand them thoroughly. Then ifyou do, I would ask you to sign it on thatline that says, Signature, and yourguardian-mother to sign underneath.No. 98-1815Machacek v. Hofbauer134The record shows that Machacek had extensive contacts with thejuvenile justice system and, thus, was not naive about the consequencesof waiving his Fifth and Sixth Amendment rights.Moran v. Burbine, 475 U.S. 412, 421 (1986) (quotingFarev. Michael C., 442 U.S. 707, 725 (1979)). "Whether a waiveris knowing and intelligent is determined by the particularfacts and circumstances of the case, 'including thebackground, experience, and conduct of the accused.'"SeeUnited States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir. 1990)(quotingJohnson v. Zerbst, 304 U.S. 458, 464 (1938)). Afterextensive hearings, the state trial court determined that bothMachacek and his legal guardian made the final decision towaive hisMirandarights freely and with full understanding.We agree with the Michigan court. Assuming thatDetective Stamper may have somehow mislead Machacekabout the consequences of signing the waiver card, police didnot treat the signing of the card as a waiver of Machacek'srights. Rather, after Machacek signed the waiver card,Detective Fulcher emphasized that Machacek's signaturemerely indicated his understanding of his legal rights. Afterconfirming that Machacek understood his rights, DetectiveFulcher specifically asked Machacek whether he wanted tomake a statement without an attorney being present.Machacek agreed and admitted his involvement in the brutalmurder of young Mary Ann Hulbert.4Based on the "totality of the circumstances" surroundingMachacek's waiver, we find that the Michigan courts'determination that Machacek knowingly and voluntarilywaived hisMirandarights was not an unreasonableapplication of Supreme Court precedent. The audiorecordings of Machacek's interview firmly convince us thatboth Machacek and his foster mother knowingly andintelligently waived his Fifth and Sixth Amendment rights.12Machacek v. HofbauerNo. 98-1815"unreasonable application" of Supreme Court precedent.Thus, we must reject petitioner's request for habeas reliefbased on an alleged violation of his right to counsel.V. Valid Waiver OfMirandaRightsIn his habeas appeal, petitioner also argues that theMichigan state courts erroneously found that DetectiveStamper's misleading statements about the significance ofsigning a waiver card did not render his waiver of FifthAmendment rights invalid. Although we agree that DetectiveStamper's statements were less than appropriate, we find theMichigan court's decision to be an "objectively reasonable"application of clearly established Supreme Court precedent,and, thus, affirm the district court's denial of petitioner'srequest for habeas relief.InMiranda v. Arizona, 384 U.S. 436 (1966), the SupremeCourt held that the privilege against self-incriminationprotects individuals from "informal compulsion exerted bylaw-enforcement officers during in-custody questioning."Id.at 461. Unless a suspect knowingly, voluntarily, andintelligently waives these rights, a court will excludestatements made as a result of an involuntary waiver.SeePennsylvania v. Muniz, 496 U.S. 582, 589 (1990). Indetermining whether a suspect has validly waived his rights,a trial court should consider the following factors:First, the relinquishment of the right must have beenvoluntary in the sense that it was the product of a freeand deliberate choice rather than intimidation, coercionor deception. Second, the waiver must have been madewith full awareness both of the nature of the right beingabandoned and the consequences of the decision toabandon it. Only if the "totality of the circumstancessurrounding the investigation" reveal both an uncoercedchoice and the requisite level of comprehension may acourt properly conclude that theMirandarights havebeen waived.No. 98-1815Machacek v. Hofbauer5Your signature is not an admission ofanything. It is not waiving anything. Itmerely indicates that you have been readyour rights and you do understand eachone of them.Mrs. McKenzie: Should . . . We're going to have to get alawyer then and should his mother benotified?Detective Fulcher: Are you his legal guardian?Ms. McKenzie: Right now, yes.Detective Fulcher: Are you indicating that you don't wanthim to talk to us without an attorneybeing present?Ms. McKenzie: Well, what do you suggest? I've neverbeen through this.Detective Fulcher: It's not up to me. It is one-hundredpercent yours and Chris' decision.. . .Ms. McKenzie: Well, does he have to sign that beforeour lawyer is here?Detective Fulcher: He doesn't have to sign anything. Weare asking him to sign it, if heunderstands his rights.Questioning stopped at this point and Ms. McKenzie leftthe room to talk to her ex-husband. Ms. McKenzie returnedto the room approximately five minutes later and thefollowing conversation took place.Detective Fulcher: Chris, we have talked about your rights.You have signed the form and you areindicating that you do understand your6Machacek v. HofbauerNo. 98-1815rights and you would like to talk to usabout the death of Mary.Machacek: Yes.Detective Fulcher: And Mrs. McKenzie, do you understandhis rights and you are allowing him totalk to us about that now?Mrs. McKenzie: Um-humm.Detective Fulcher: We haven't threatened anyone or madeany promises or anything of that nature?Ms. McKenzie: No, but I just want Chris to tell thehonest-to-god truth of what he knowsand you can take a lie detector's test andthat would maybe clear it.Detective Fulcher: Do you feel that we have threatened orintimidated you in any way to get you totalk to us, Chris?Machacek: No.At this point, Ms. McKenzie asked petitioner whether hetold anyone that he had access to her husband's Chevy Blazer.The officers discussed the issue with Ms. McKenzie beforecontinuing with the following conversation.Detective Fulcher: Chris, I would like to refresh youmemory about the rights. The blue formthat you signed – I will lay it in front ofyou. It indicates all those rights. Doyou recall reading me those rights to youa short time ago or Detective Stamper, Ishould say, reading the rights to you?Machacek: Yes.Detective Fulcher: Do you still understand your rights?No. 98-1815Machacek v. Hofbauer111522. Thus, even if we believe that a state court incorrectlyapplied federal law, we must refuse to issue the writ of habeascorpus if we find that the state court's decision was areasonable one. Given the facts of this case, we have littletrouble deciding that the Michigan court's decision was"objectively reasonable" in light of clearly established federallaw.Machacek argues that Ms. McKenzie, his legal guardian,invoked his right to counsel by making the following remark,"Should . . . We're going to have to get a lawyer then andshould his mother be notified?" In light of the SupremeCourt's decision inDavis v. United States, 512 U.S. 452(1994), we reject petitioner's argument. InDavis, the Courtheld that a suspect "must unambiguously request counsel."Id.at 459. Thus, "if a suspect makes a reference to anattorney that is ambiguous or equivocal in that a reasonableofficer in light of the circumstances would have understoodonly that the suspectmightbe invoking the right to counsel,our precedents do not require the cessation of questioning."Id.The Court ultimately held that the suspect's statement,"Maybe I should talk to a lawyer," was equivocal, and, thus,police were allowed to continue questioning the suspect.Id.at 462.In light ofDavis, the Michigan court's finding that Ms.McKenzie did not invoke the right to counsel was"objectively reasonable." Her equivocal statement began andended as if she were asking the police a question. After Ms.McKenzie ambiguously suggested that she might wantcounsel present during questioning, police immediatelystopped questioning Machacek and asked Ms. McKenzie toclarify whether she was invoking Machacek's right to counsel.Ms. McKenzie's response indicated that she was veryuncertain about whether she wanted counsel present. Beforecontinuing the questioning, police allowed Ms. McKenzie toleave the room and discuss the matter with her ex-husband.Upon her return, she unequivocally consented to proceedingwithout having a lawyer present. Given the facts of this case,we cannot say the state trial court's determination was an10Machacek v. HofbauerNo. 98-1815(d) An application for a writ of habeas corpus onbehalf of a person in custody pursuant to the judgment ofa State court shall not be granted with respect to anyclaim that was adjudicated on the merits in State courtunless the adjudication of the claim–(1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearlyestablished Federal law, as determined by the SupremeCourt of the United States . . . .28 U.S.C. § 2254(d). After we heard oral arguments in thiscase, the Supreme Court resolved some confusion among thecircuits by holding that section 2254(d)'s "contrary to" and"unreasonable application" clauses have independentmeanings.SeeWilliams v. Taylor, 120 S.Ct. 1495, 1519(2000). With respect to the first of the two statutory clauses,the Court held that a state court decision can be "contrary to"clearly established federal law if the state court arrives at aconclusion opposite to that reached by the Supreme Court ona question of law.Seeid.A state court decision can also be"contrary to" Supreme Court precedent if the state courtconfronts facts that are materially indistinguishable from arelevant Supreme Court precedent and arrives at an oppositeresult.Seeid.Because none of Machacek's claims implicatethe "contrary to" clause of this provision, we will evaluate hisclaims under the "unreasonable application" prong.InWilliams, the Court held that an "unreasonableapplication" of clearly established federal law established bySupreme Court precedent occurs if "the state court identifiesthe correct governing legal rule from [the Supreme Court's]cases but unreasonably applies it to the facts of the particularstate prisoner's case."Id.at 1520. Thus, "a federal habeascourt making the 'unreasonable application' inquiry should askwhether the state court's application of clearly establishedfederal law was objectively reasonable."Id.Although theCourt failed to specifically define "objectively reasonable," itobserved that "an unreasonable application of federal law isdifferent than an incorrect application of federal law."Id.atNo. 98-1815Machacek v. Hofbauer73AWalkerhearing is a hearing held in the Michigan state courts,outside the presence of the jury, to determine whether a confession wasvoluntarily made.SeePeople v. Walker, 374 Mich. 331 (1965).Machacek: Yes.Detective Fulcher: Having those rights in mind, do you stillwant to make a statement without yourattorney being present now?Machacek: Yes.After agreeing to make a statement to the officers,Machacek described the murder of Mary Ann, implicatingSteven Stamper as the one who pulled the trigger. Machacektold police how the two boys took Mary Ann to the woods,blindfolded her, placed her up against a tree, and shot hernumerous times as she ran trying to escape from herabductors. After shooting and killing the young girl,Machacek helped Stamper drag Mary Ann's body through thewoods and dump her in some bushes.II. Procedural HistoryIn determining whether to exclude Machacek'sincriminating statements, the Michigan trial court held aWalkerhearing3and listened to the tape recordings ofMachacek's interview. The trial court concluded:In this case, Defendant Machacek was informed of hisMirandarights in the presence of his foster mother,Diana McKenzie. It is clear that he and she understoodthose rights. She was given the opportunity to discussthese rights and whether or not an attorney should becalled with her ex-husband. During this time DefendantMachacek was not being questioned and could reflect onwhether he wanted to proceed. The record shows that thefinal decision was made freely with full understanding.8Machacek v. HofbauerNo. 98-1815On appeal, the Michigan Court of Appeals affirmed the trialcourt's ruling, finding that:Our review of the record, which includes audio tapesmade without the knowledge of the officers questioningdefendant, leaves us convinced that defendant's statementwas voluntarily made, that his rights were scrupulouslyhonored, and that both he and his foster motherknowingly and intelligently waived his right to remainsilent and to have an attorney present during thequestioning. We therefore find the remainder ofdefendant's claims regarding the admissibility of hisstatement to be without merit.On September 14, 1988, a jury convicted Machacek of firstdegree murder. He was sentenced to a mandatory lifesentence without possibility of parole. On April 4,1989,Machacek filed a claim of appeal with the Michigan Court ofAppeals challenging the trial court's refusal to suppress theincriminating statement he made to police on January 7, 1987.Machacek also appealed the trial court's finding that officershad probable cause to believe that he was guilty of murder.On February 17, 1993, the Michigan Court of Appealsaffirmed Machacek's conviction. The Michigan SupremeCourt denied his application for leave to appeal the appellatecourt's decision.On April 21, 1997, Machacek filed for a writ of habeascorpus with the United States District Court for the EasternDistrict of Michigan, arguing that the Michigan court erred inallowing an incriminating statement obtained in violation ofhis Fourth, Fifth and Sixth Amendment rights to beintroduced into evidence at trial. On June 30, 1998, thedistrict court denied his petition for a writ of habeas corpus.This appeal followed. For reasons to be discussed, we affirmthe district court's ruling in its entirety.No. 98-1815Machacek v. Hofbauer9III.Stone v. PowellBars Petitioner's Fourth AmendmentClaimPetitioner's Fourth Amendment claim is not reviewable. Ahabeas petitioner may not seek habeas relief on a claim ofillegal arrest if he had a full and fair opportunity to raise theclaim in state court and presentation of the claim was notthwarted by any failure of the state's corrective processes.SeeStone v. Powell, 428 U.S. 465, 494-95 (1976). InRileyv.Gray, 674 F.2d 522 (6th Cir. 1982), we set forth two distinctinquiries a court must perform when determining whether apetitioner may raise a claim of illegal arrest in a habeasaction. First, the "court must determine whether the stateprocedural mechanism, in the abstract, presents theopportunity to raise a fourth amendment claim. Second, thecourt must determine whether presentation of the claim wasin fact frustrated because of a failure of that mechanism."Id.at 526. Because Machacek concedes that Michigan has aprocedural mechanism which presents an adequateopportunity to raise his Fourth Amendment claims, he mustestablish that a failure of that procedural mechanismsomehow prevented him from litigating his claims.In this case, the record reflects that petitioner was able topresent his Fourth Amendment claims to the Michigan courtsand that these claims were carefully considered and rejectedat the trial level and on appeal. Machacek may bedisappointed with his inability to persuade the Michigancourts that his statement was the product of an illegal arrest,but the record clearly shows that he received all the process hewas due. Accordingly, any claims concerning the validity ofhis arrest are not cognizable on habeas review under thedoctrine ofStone v. Powell.IV. Failure To Invoke Right To CounselMachacek filed his petition after the effective date of theAntiterrorism and Effective Death Penalty Act (AEDPA), 28U.S.C. § 2254(d). Thus, the district court's review waslimited to the standards of review set out in the AEDPA asfollows: