*

The Honorable Frank J. Magill, Cir

Court of Appeals for the Eighth Circuit, 

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

CHRISTOPHER MACHACEK,

Petitioner-Appellant,

v.

GERALD HOFBAUER, Warden,

Respondent-Appellee.

Appeal from the United St

for the Eastern District of M

No. 97-71761—Nancy G. Edm

Argued: March 

Decided and Filed: M

Before: MERRITT, DAUGHTRE

Judges.

*

____________

COUNSE

ARGUED: Don Ferris, FERRIS Michigan, for Appellant. Laura GrTHE ATTORNEY GENERAL
2 Machacek v. Hofbauer No. 98-1815

1The Honorable Nancy G. Edmunds, United States District Judge for

the 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 which

DAUGHTREY, J., joined. MERRITT, J. (p. 15), delivered aseparate dissenting opinion.

_________________

OPINION

_________________

MAGILL, Circuit Judge. Christopher Machacek appeals

the district court's1 denial of his application for a writ of

habeas 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 by Stone v. Powell, 428 U.S. 465

(1970), and his other claims to be meritless. For reasons to bediscussed, we affirm.

I. Background

On December 30, 1986, petitioner Christopher Machacek

and 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. 98-1815 Ma

___________

DISSEN

___________

MERRITT, Circuit Judge, dis

Section V of the Court’s opinion. Athe transcript sets out, the deMachacek asked him to sign “direthat is called Waiver of Rights” wmy rights, and . . . I waive them . . this request for Machacek to sign said “we’re not asking you to wairights or anything of that nature.” false and in my opinion constituMiranda. The same detective then thing again, a second time: “[Swaiving anything,” he said. Mwaiver. Although I am certainly ncase, I do not see how we can say acannot sanction this classic violatdetailed harmless error analysis conviction, but I cannot go along that no constitutional error happenthe waiver of rights after being twnothing. In other words, he was faland get it off his chest withoincriminating himself. I agree wopinion.
14 Machacek v. Hofbauer No. 98-1815

VI. Conclusion

For the aforementioned reasons, we affirm the district

court's denial of habeas relief to petitioner.

No. 98-1815 Ma

2We note that some of the audio rec

knowledge of the questioning officers.

After the body of Mary Ann wa

1987, police went to Machacek's Diana McKenzie, Machacek's foststation. Ms. McKenzie agreed and station. At the station, DeteMcFarlane took Ms. McKenzie asAnn had been murdered. Ms. McKpermission to talk to petitioner. 

At 7:20 p.m., the formal int

McKenzie present. Because pknowing and voluntary nature of hSixth Amendment rights, we quotrecordings of his interview at som

Detective Stamper: This is a sta

rights. Numbto remain silehave to talk tDo you under

Machacek: Yes.Detective Stamper: Number Two: 

will be used agDo you under

Machacek: Yes.Detective Stamper: Number Thre

talk to a lawywith you while Do you under

Machacek: Yes.
4 Machacek v. Hofbauer No. 98-1815

Detective Stamper: Number Four: If you cannot afford to

hire 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 any

time 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 is

called 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 and

don'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. 98-1815 Ma

4The record shows that Machacek h

juvenile justice system and, thus, was noof waiving his Fifth and Sixth Amendme

Moran v. Burbine, 475 U.S. 412

v. Michael C., 442 U.S. 707, 725 (1is knowing and intelligent is detfacts and circumstances of thbackground, experience, and condUnited States v. Gaddy, 894 F.2d 1(quoting Johnson v. Zerbst, 304 U.extensive hearings, the state trial cMachacek and his legal guardian waive his Miranda rights freely an

We agree with the Michigan 

Detective Stamper may have somabout the consequences of signing not treat the signing of the card arights. Rather, after Machacek Detective Fulcher emphasized thmerely indicated his understanding confirming that Machacek undersFulcher specifically asked Machamake a statement without an Machacek agreed and admitted his murder of young Mary Ann Hulbe

Based on the "totality of the ci

Machacek's waiver, we find thdetermination that Machacek knwaived his Miranda rights w

application of Supreme Court recordings of Machacek's intervieboth Machacek and his foster intelligently waived his Fifth and 
12 Machacek v. Hofbauer No. 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 Of Miranda Rights

In his habeas appeal, petitioner also argues that the

Michigan 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. 

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme

Court 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 been

voluntary 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 the Miranda rights have

been waived. 

No. 98-1815 Ma

Your signaturanything. It imerely indicatyour rights anone of them.

Mrs. McKenzie: Should . . . W

lawyer then anotified?

Detective Fulcher: Are you his leMs. McKenzie: Right now, yeDetective Fulcher: Are you indic

him to talk tbeing present

Ms. McKenzie: Well, what do 

been through 

Detective Fulcher: It's not up to 

percent yours . . . 

Ms. McKenzie: Well, does he 

our lawyer is 

Detective Fulcher: He doesn't ha

are asking understands h

Questioning stopped at this poi

the room to talk to her ex-husbandto the room approximately fivfollowing conversation took placeDetective Fulcher: Chris, we hav

You have sigindicating tha
6 Machacek v. Hofbauer No. 98-1815

rights and you would like to talk to usabout the death of Mary.

Machacek: Yes.Detective Fulcher: And Mrs. McKenzie, do you understand

his rights and you are allowing him totalk to us about that now?

Mrs. McKenzie: Um-humm.Detective Fulcher: We haven't threatened anyone or made

any promises or anything of that nature?

Ms. McKenzie: No, but I just want Chris to tell the

honest-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 or

intimidated you in any way to get you totalk to us, Chris?

Machacek: No.

At this point, Ms. McKenzie asked petitioner whether he

told 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 you

memory 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. 98-1815 Ma1522. Thus, even if we believe thapplied federal law, we must refuse corpus if we find that the state reasonable one. Given the facts otrouble deciding that the Michi"objectively reasonable" in light of law.

Machacek argues that Ms. McK

invoked his right to counsel by mak"Should . . . We're going to have should his mother be notified?" Court's decision in Davis v. Uni(1994), we reject petitioner's arguheld that a suspect "must unambiId. at 459. Thus, "if a suspect attorney that is ambiguous or equiofficer in light of the circumstanconly that the suspect might be invour precedents do not require the Id. The Court ultimately held tha"Maybe I should talk to a lawyer," police were allowed to continue Id. at 462. 

In light of Davis, the Michigan 

McKenzie did not invoke the "objectively reasonable." Her equiended as if she were asking the poMcKenzie ambiguously suggestcounsel present during questionstopped questioning Machacek anclarify whether she was invoking MMs. McKenzie's response indicuncertain about whether she wantecontinuing the questioning, police leave the room and discuss the maUpon her return, she unequivocallwithout having a lawyer present. Gwe cannot say the state trial cou
10 Machacek v. Hofbauer No. 98-1815

(d) An application for a writ of habeas corpus on

behalf 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, or

involved 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. See Williams 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. See id. 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. See id. Because none of Machacek's claims implicatethe "contrary to" clause of this provision, we will evaluate hisclaims under the "unreasonable application" prong.

In Williams, the Court held that an "unreasonable

application" 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 the

Court failed to specifically define "objectively reasonable," itobserved that "an unreasonable application of federal law isdifferent than an incorrect application of federal law." Id. at

No. 98-1815 Ma

3A Walker hearing is a hearing hel

outside the presence of the jury, to detervoluntarily made. See People v. Walker, Machacek: Yes.Detective Fulcher: Having those 

want to make attorney being 

Machacek: Yes.

After agreeing to make a st

Machacek described the murder Steven Stamper as the one who putold police how the two boys took blindfolded her, placed her up agnumerous times as she ran tryiabductors. After shooting and Machacek helped Stamper drag Mawoods and dump her in some bush

II. Procedural 

In determining whether to 

incriminating statements, the MiWalker hearing3 and listened to Machacek's interview. The trial c

In this case, Defendant MachacMiranda rights in the presencDiana McKenzie. It is clear thathose rights. She was given the these rights and whether or nocalled with her ex-husband. DurMachacek was not being questiowhether he wanted to proceed. Tfinal decision was made freely w
8 Machacek v. Hofbauer No. 98-1815

On 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 first

degree 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 habeas

corpus 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. 98-1815 Ma

III. Stone v. Powell Bars Petition

Claim

Petitioner's Fourth Amendment 

habeas petitioner may not seek hillegal arrest if he had a full and faclaim in state court and presentathwarted by any failure of the stateStone v. Powell, 428 U.S. 465, 

v.Gray, 674 F.2d 522 (6th Cir. 1982inquiries a court must perform whpetitioner may raise a claim of action. First, the "court must deprocedural mechanism, in the opportunity to raise a fourth amencourt must determine whether prein fact frustrated because of a failu

at 526. Because Machacek concprocedural mechanism which opportunity to raise his Fourth Amestablish that a failure of thasomehow prevented him from litig

In this case, the record reflects 

present his Fourth Amendment claand that these claims were carefulat the trial level and on appedisappointed with his inability tcourts that his statement was the pbut the record clearly shows that he was due. Accordingly, any claims his arrest are not cognizable on doctrine of Stone v. Powell. 

IV. Failure To Invoke R

Machacek filed his petition afte

Antiterrorism and Effective Death U.S.C. § 2254(d). Thus, the dlimited to the standards of review follows: