NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 14a0532n.06 

# FAIE No. 13-5870 rjJ 

## 2 12014 UNITED STATES COURT OFAPPEALS 

## FORTHESIXTHCIRCUIT PEBORAHS.HUNT,Clerk PERRY AVRAM MARCH, 

## ) ) Petitioner-Appellant, 

## ) ON APPEAL FROM THE 

## ) UNITED STATES DISTRICT v. 

## ) COURT FOR THE MIDDLE 

## ) DISTRICT OF TENNESSEE GERALD MCALLISTER, WARDEN, 

## ) ) Respondent-Appellee. 

## )

BEFORE: KEITH, CLAY, and McKEAGUE, CircuitJudges DAMON J. KEITH, Circuit Judge. On August 17, 2006, in the Criminal Court for Davidson County, Tennessee, Perry A. March was convicted ofmurdering his wife Janetnearly

a decade prior. In this habeas appeal, Petitioner March, initially proceeding pro Se, and later retaining counsel, makes three challenges to the admission of certain of his incriminating statements on grounds that they were obtained in violation ofthe Fifth and Sixth Amendments. On two ofhis three claims, we assume without deciding the existence ofconstitutional error, only to conclude that in light ofthe significant evidence adduced against March, any errors would be harmless. As to March’s third challenge, although the facts present a close legal question, we are unable to conclude that the Tennessee appellate court unreasonably applied federal law, and accordingly we rejectthis claim as well. Accordingly, we AFFIRM the district court’s denial ofMarch’s writ ofhabeas corpus.March v. McAllister, 13-5870 I. March and his wife were married in 1987 and thereafter took up residence in Nashville. March enrolled at Vanderbilt Law School, with full financial support from the victim’s parents (the “Levines”), andwas eventually employed as an attorney at aNashville law firm. The couple undertook marriage counseling in 1991 or 1992, and the record reflects that the two were experiencing marital problems thereafter. Marchbegan to see apsychiatrist, whose sessions into whichthe victimjoined in 1996. The victim’s mother, Ms. Levine, testified that atthatpointthe situation had seriously deteriorated. March confided in her his fears that a divorce was imminent. Eventually, the situation was so bad in 1996 that the victim demanded that March find alternative housing. 1 Ms. Levine had planned on accompanying the victim to see a divorce lawyer on August 16, 1996. However, around midnight on August 15, 1996, March called the Levines to inform themthatthe victimhad leftthe house after an argument. The victim was never seen again. The events that followed pertaining to the victim’s disappearance were described as highly uncharacteristic. A non-exhaustive list ofunusual circumstances include: abnormalities as to the victim’s computer usage; handwriting; credit card usage; the lack ofan itinerary and otherwise detailed instructions as to her absence; the victim’s repeated absence away from herchildren, for whom she had made birthday and school plans; and vehicular inconsistences. In short, the trial testimony establishedthat apermanent change ofscenery was antithetical ofthe victim’s habits, customs, and ethos.

Ms. Levine testifiedthat March stayed in ahotel for approximately six to eightnights before the victim’s disappearance. 2March v. McAllister, 13-5870 Memorial services were eventually held for the victim, which March did not attend. March initially moved the children to Chicago, and then in May 1999, moved the family to Mexico. With regards to evidence as it relates to March, much ofthe testimony established at trial detailed him as volatile and hostile, making sundry threats to the victim’s friends, family members, and confidants, as well as exhibiting similar behavior towards investigators, police officers, and psychiatrists. March’s demeanor, especially when approached by authority figures, is detailed as having been frequently impatient, frustrated, and irritated. Certain anomalies and facts inconsistent with the victim’s purported voluntary disappearance include, but are not limited to: the house having been cleaned the morning after the incident but before the housekeeper arrived; March’s presence at 1:00 am the night ofthe incident walking a bicycle down aparking lot where the victim’s car was later discovered; ripping out his computer’s hard drive; turning white and shivering when the police arrived; commenting that “Fucking Janet ruined my life”; purchasing new tires and wiping disinfectant in his car; asking victim’s long time friend Diane Saks ifshe could believe a scenario in which he would put the victim in the back ofhis vehicle, leave the children home alone while they were sleeping and thenreturn and pretend “like nothing ever happened”; penning a manuscript portraying the murder ofa young woman; telling Mexicanbusinessmen that ifhe did not help him “he would do away withus the way he did with his wife”; and the victim’s discovery ofevidence ofa sexual harassment suit filed againstMarchby aparalegal athis law firm, as well as evidence thatMarch’s settlement of that suithadrenderedMarchin arrears. Arthur March, the Defendant’s father, played an instrumental role in both the victim’s disappearance and the subsequent plot to murder the Levines. He was deposed, and the 3March v. McAlliste, 13-5870 corresponding videotape ofthe deposition was played before thejury. Arthur March arrived in Nashville three to four days after the victim’s disappearance. He testified that his son admitted to him that the victim had died in an “accident” after an argument. March asked his father to dispose ofhis computer’s hard drive, whichhe did. March also asked his fatherto dispose ofthe victim’s remains, which he also did: after following March’s instructions, his father bought a shovel and Clorox bleach and, after following directions provided to him, unearthed a large leaf bag containing the victim’s remains located in a wooded area. Arthur March stated that he saw certainbones inthe bag andthatthebag weighed approximately fifty or sixty pounds. March and his father drove northwards to Chicago, where Arthur March disposed ofthe victim’s body and clothes underneathbrush. March moved to Mexico, and, after nine years on the lam, was arrested there on August 3, 2005. March was transported to a jail in Los Angeles, California, where he waived extradition. Detectives Pat Postiglione and Bill Pridemore of the Metro Nashville Police Department escorted March from Los Angeles to Nashville via plane on August 12, 2005. Detective Postiglione, to whom March spoke to most frequently, informed March that he understood that Defendant was an attorney 

### and that he had no intention ofinterrogating him. Although Postiglione conveyed that March was under no obligation to speakto him, Postiglione did not provide March a Miranda warning. He also said that he would “certainly listen” 

### and relay whatever March had to say to the appropriate authorities. Postiglione testified that he was

aware thatMarchwas representedby counsel.

4March v. McAllister, 13-5870 Generally, March indicated a willingness to plead guilty to murder, but was persistently inquisitive with Postiglione. Postiglione, although generally reserved in conversation, 2 held steadfast in reminding March he did not have the authority to negotiate a plea deal, made the following statements duringthe flightto Nashville: 1) “[S]ometimes things happenthat some people mayperceive one way when, in fact, itis something totally different. I used as an example—amoment ofanger instantly regretted. I gave the scenario ofsomeone killing someone elseby accidentcompared to walkingup behind someone and shootingtheminthe backofthe head—and said thatthere is a stark differencebetweenthe two”; and 2) inresponse to March’s statementthathe intensely lovedthe victim, “sometimes people hurtpeoplethey love in amoment ofanger.” March was held at the Davidson County Criminal Justice Center, where he met Russell Nathaniel Farris, an inmate who was unable to make bail. March was under the mistaken assumption that Farris was imprisoned for first-degree murder—accordingly, March solicited Farris’ help in a plot to murder the Levines. In return, March offered the possibility that he would raise the money to secure Farris’ bond. March and Farris discussed the murderplot every day for aboutone month. Farris grew concerned about his role in the murder plot, the details ofwhich had grown in-depth and particular. In September 2005, Farris contacted his mother and his attorneys about the plot in an attempt to disassociate himselfwith the murderplot. Eventually, the details ofthe plot were forwarded to Sergeant Postiglione. Postiglione met with Farris on October4, 2005 at the District Attorney’s office, at which point Farris officially withdrew from the conspiracy and agreed to participate in ajailhouse investigation. Farris consented to the placement ofa digital

2 further told him that we would not pressure him in any way or try to interview him or get any sort of a statement; but I invited any questions or comments he may have, to feel free to share that with us, ifhe wantedto.” 5March v. McAllister, 13-5870 recorder in Farris’ cell. At the behest ofthe authorities, Farris returned to his cell and informed March that he would be able to make bond. March began to finalize the planto kill the Levines, involving an impressively elaborate plan in which Farris was to meet with Arthur March who would help facilitate the hit and then provide safe haven in Mexico. Farris telephoned March multiple times after his release in an attempt to finalize the plot. Eventually Arthur March was arrested, andbroughtPostiglioneto the location where the victimwas buried, thoughthe remains

were never found. While still incarcerated, at differenttimes, March was housedin a cell adjacentto the cell of Cornelius King and Reno Martin. While he spoke to King, he detailed the circumstances preceding the murder. According to King, March stated that there was an argument, that the victim wanted a divorce, and that March was “not going to allow that.” A physical altercation ensued and March struck the victim over the head with a wrench. In a conversation with Martin—with whom March was friends—March discussed his ongoing custody battle with the Levines. March said “that it should have beenthemthat [I] tookcare ofinstead of.

. .“ atwhich pointMarch “wentcompletelypale,” and “losthis expression onhis face.” On August 17, 2006, after a nine day trial, March was convicted by ajury ofseconddegree murder, destruction ofevidence, and abuse ofa corpse. In a separate case arising out of March’s attempts to kill the victim’s parents—thereby precluding the admission of their potentially damaging testimony—March was also convicted ofconspiracyto commitfirst-degree murder. Combined, Marchwas sentencedto atotal offifty-six years’ imprisonment. March filed his pro se petition for the writ ofhabeas corpus in the Eastern District of Tennessee on February 3, 2012. The case was transferred to the Middle District ofTennessee, 6March v. McAllister, 13-5870 which denied his habeas petition in a forty-eightpage Memorandum Opinion issued on June 19, 2013. March v. Sexton, 3:12-CV-272, 2013 WL 3147222 (M.D. Tenn. June 19, 2013). Nevertheless, the district court granted a Certificate of Appealability to each of his claims addressed in his petition. March appeals. II. We review the District Court’s decision to dismiss the writ ofhabeas corpus de novo. Ruimveldv, Burkett, 404 F.3d 1006, 1010 (6th Cir. 2005). Because March appeals from a state court proceeding, his petition is subject to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and the “Supreme Court opinions interpreting it.” Jones v. Bagley, 696 F.3d 475, 482 (6th Cir. 2012). The AEDPA standard is “highly deferential.” Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011)reh’gdenied, 131 S. Ct. 2951 (U.S. 2011). The deferential standard is formidable. Under the AEDPA, we may not grant a habeas petition unless the state court decision “(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). A state court decision is contrary to clearly established federal law ifthe state court applies a rule that contradicts the governing law set forth by the United States Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision will also be contrary to clearly established federal law if the state court confronts a set of facts that are materially indistinguishable from a decision ofthe United States Supreme Court and nevertheless arrives at 7March v. McAllister, 13-5870
a result different from that decision. Id. at 406. A state court decision unreasonably applies federal law “ifthe state court identifies the correct governing legal principle from the Supreme Court’s decisions but unreasonably applies that principle to the facts.” Id. at 407-08. A federal court making the “unreasonable application” inquiry should ask whether the state court’s application of clearly established federal law was “objectively unreasonable.” Id. at 409. To obtain relief, “a habeas petitioner must show that the state court’s ruling on the claim being presented in federal court was so lacking injustification that there was an error well understood and comprehendedin existing lawbeyond anypossibility for fairminded disagreement.” Bagley, 696 F.3d at483 (internal quotations and citations omitted). III. A. The In-FlightStatements March challenges the introduction of statements he made during his post-arrest flight from Los Angeles to Nashville on August 12, 2005. March argues that the introduction ofthis evidence violates bothhis FifthAmendment privilege against self-incrimination, as per Miranda

v. Arizona, 384 U.S. 436 (1966), and his Sixth Amendment right to counsel under Massiah v. UnitedStates, 377 U.S. 201 (1964). In light ofthe significant evidence ofguilt adduced against March at trial, we assume without deciding that the admission of these statements was constitutional error. 3

We findthe following statements by Detective Postiglioneto be the mosttroubling: a) “[S]ometimes things happenthat somepeople mayperceive one way when, in fact, itis somethingtotally different. I used as an example—amoment ofanger instantly regretted. I gavethe scenario ofsomeone killing someone else by accident comparedto walking up behind someone and shootingthem in the backofthe head—and saidthatthere is a stark difference between the two”; and b) inresponse to March’s statementthathe intensely loved Janet, “sometimes people hurtpeople they love in amomentofanger.” However, because we holdthat any errorwas harmless, we need not determine whether the statements constituted functional interrogation. 8March v. McAllister, 13-5870 Under Brecht v. Abramhamson, error is not harmless in a habeas case when it had substantial and injurious effect or influence in determining thejury’s verdict. 507 U.S. 619, 637 (1993); see Fry v. Filler, 551 U.S. 112, 120 (2007) (adopting Brecht standard and eschewing the “harmless beyond reasonable doubt” standard). “Under this standard, habeas petitioners may obtain plenary review oftheir constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice.” Brecht, 507 U.S. at 637 (internal quotations omitted). The burden for showing an errorto be harmless is on the government. See O’Neai v. McAninch, 513 U.S. 432, 436 (1995); Ruelas v. Wolfenbarger, 580 F.3d 403, 413 (6th Cir. 2009). Thus, we must decide whether the admission ofthe disputed statements subjected Marchto actualprejudice in his second-degree murderconviction. In Tennessee, second degree murder is defined as a “knowing killing ofanother.” Tenn. Code Ann. 

## § 39—13—210(a)(1). Knowingly “meansthat aperson acts with an awareness that his.

. . conduct is reasonably certainto cause the death ofthe alleged victim.” State v. Page, 81 S.W.3d 781, 788 (Tenn. Crim. App. 2002); see also T.P.I.-Crim. 7.05(a) (7th ed. 2002). Significant evidence exists which would support a conviction of second-degree murder as defined by the Tennessee statute. We emphasize that a) March’s statement that the victim died in an “accident” after an argument; b) Arthur March’s destruction ofthe computer hard-drive at his son’s request; c) ArthurMarch’s disposal ofthe victim’s remains; 4 d) March’s admissionthat

Arthur March testified via deposition that he saw some ofthe victim’s bones in the leafbag and thatthe bag weighed approximately fifty or sixty pounds. At trial, the government’s expert testified that, under the circumstances in this case, the victim’s skeletal remains would weigh approximately fifteenpounds. March asserts that Arthur March’s testimony violates the “physical facts rule,” which states that the testimony ofa witness that is opposed to the laws ofnature or which clearly conflicts with principles ofscience cannot be given any probative value by ajury. See Harris v. General Motors Corp., 201 F.3d 800, 803 (6th Cir. 2000). “In examining a claim of insufficiency ofevidence in habeas corpus, a federal court must presume that thejury’s findings in evaluating the 9Marchv. McAllister, 13-5870 he murdered the victim to Reno Martin, Cornelius King, and Jose Pulido; and e) March’s statement to the Mexican businessmen that he would “do away with them the way he did with his wife,” concretely support a finding that the trial evidence supported a murder conviction againstMarch. The significant and extensive background evidence illustrating discontentbetweenMarch and the victim, particularly the evidence establishing that the victim had unearthed information about his sexual harassment against Leigh Reames, as well as evidence ofthe victim’s laundry list ofreasons in whichMarch had mistreatedher, establishes thatthe act was not an accident. In reaching this conclusion, we also rely on the numerous inconsistencies and abnormalities in the victim’s disappearance and March’s behavior following the crime, the sheer multitudes ofwhich preclude an exhaustive list. Statements such as “Fucking Janet ruined my life,” and the hypothetical question posed to the victim’s long-time friend—whether could she believe a scenario in which he would put the victim in the back ofhis vehicle, leave the children home
credibility of the witnesses is correct and may ignore the testimony only when it finds it to be ‘inherently incredible.” Malcum v. Burt, 276 F.Supp.2d 664, 686 (E.D. Mich. 2003). We first observe that attrial, March didnotmove to strike ArthurMarch’s testimony when itbecame apparentthat itwas purportedly factually impossible. To preserve aclaim oferror in the admission ofevidence, a party musttimely objectto ormove to strike the evidence. Fed. Rule Evid. 103(a)(1). Accordingly, we review the admission ofArthur March’s testimony forplain error only. To establishplain error, Harris must show that an error (1) occurred, (2) was plain, i.e. obvious orclear, (3) affectedhis substantial rights, and (4) seriously affectedthe fairness, integrity, orpublic reputation ofthejudicial proceedings. UnitedStates v. Harris, 200 F. App’x472, 490 (6th Cir. 2006). Although Arthur March’s approximation ofthe weight ofthe bag is beliedbythe expert witness, it is entirely plausiblethatthe skeletal remains were notthe only tangible materials in the bag. Indeed, evidence was established attrial which wouldtend to support atheory thatthe victim’s body was rolled into arug or carpet, thrown into the victim’s Jeep, andthen discarded: 1) the day afterthe incident, Friday, August 16, 1996, March’s son was seen wasjumping on arolledup oriental rug inthe entryhall; 2) Ella Goldshmid, the March’s part-time babysitter, testified that she had never seentherug before, but saw itthat morning blockingthe pathto the kitchen, andnever saw the rug again; and 3) Detectives foundboth carpetfibers and the victim’s hair samples insidethe Jeep’strunk area. Any multitude ofpossibilities exists forthejury to conclude thatthe victim’s remains were not the only tangible items inthe bag. Thus, we do not find Arthur March’s statements to be “inherently incredible,” Malcum, 276 F. Supp.2d at 686, nor do we find thatthe admission ofhis testimony was plainly erroneous.

10March v. McAllister, 13-5870 alone while they were sleeping and the return and pretend “like nothing ever happened,” are especially indicative ofguilt. March’s bizarre and apprehensive behavior when confronted by the victim’s family members and authorities further supportthejury’s verdict. Another relevant consideration in Brecht was the infrequency or relative brevity ofthe disputed testimony in relation to the length ofthe testimony in toto. 507 U.S. at 639. In Brecht, “the State’s references to petitioner’s post-Miranda silence were infrequent, comprising less than two pages ofthe 900—page trial transcript in this case.” Id. Here, Postiglione’s testimony on direct examination regarding the petitioner’s statements comprised about three pages of an approximately 2,500-page trial transcript overthe course ofanine-day trial. Postiglione was but

one ofdozens ofwitness to testify against March. We are firmly convinced that the relatively brieftestimony from Postiglione, amongst the great depths of incriminating evidence against March, ledto no actual prejudice againstMarch. Indeed, this is notthe case in whichwe are “in virtual equipoise as to the harmlessness ofthe error,” 551 U.S. at 121 (quoting 0 ‘Neal, 513 U.S. at 435 (1995)), but rather where, in reviewing habeas corpus matters, “we do not close our eyes to the reality of overwhelming evidence of guilt.” Milton v. Wainwright, 407 U.S. 371, 377 (1972). Accordingly, we hold that any constitutional error would have been harmless in light of the extensive evidence establishing March’s guilt. 3 B. TheJailhouse Conversations March challenges the introduction of his jailhouse conversations with co-inmate Nathaniel Farris, the details ofwhich surroundedthe plotto kill the Levines. Specifically, March AlthoughMarch alleges thatthe cumulative effect ofthe errors attrial renderedhis trial fundamentally unfairin violation ofdue process, he is withoutremedy. “The law ofthis Circuitis that cumulative errorclaims are not cognizable on habeas because the Supreme Courthas not spoken onthis issue.” Williams v. Anderson, 460 F.3d 789, 816 (6th Cir. 2006); see also Moorev. Parker, 425 F.3d 250, 256 (6th Cir. 2005). 11March v. McAllistei; 13-5870 alleges that the government knowingly circumvented his Sixth Amendment right to counsel by eliciting incrimination that was to be introduced in a criminal matter for which he was already represented. The Tennessee appellate court disagreed. Relying on State v. Berry, 592 S.W.2d 553 (Tenn. 1980), McNeil v. Wisconsin, 501 U.S. 171 (1991), and Texas v. Cobb, 532 U.S. 162 (2001), the courtheldthatunderthe “offense specific” doctrine, becausethe statements pertained to afuture, uncharged crime, the Sixth Amendmentright to counsel did not attach. The district court agreed. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right

. . . to have the Assistance ofCounsel for his defence.” The right to counsel safeguards the other rights deemed essential for the fair prosecution ofa criminal proceeding. Maine v. Moulton, 474 U.S. 159, 169 (1985). Recognizing that the right to the assistance of counsel is shapedby the need forthe assistance ofcounsel, we have found thatthe right attaches at earlier, “critical” stages in the criminaljustice process “where the results might well settle the accused’s fate and reduce the trial itself to a mere formality.” Id. at 170. Once judicial proceedings have been initiated againstthe defendant, the right attaches, and the right to counsel must be honored. Id. Where the defendant has been indicted and the case “involves incriminating statements made by the accused to an undisclosed and undercover Government informantwhile in custody and after indictment,” the righthas attached. UnitedStates v. Henry, 447 U.S. 264, 269 (1980); see also Massiah, 377 U.S. at 206 (noting that the right must be especially safeguarded where the defendant is unaware ofthe informant’s role as a government agent). Atthe very least, “theprosecutor andpolice have an affirmative obligationnotto actin a

12March v. McAllister, 13-5870
manner that circumvents and thereby dilutes the protection afforded by the right to counsel.” Moulton, 474 U.S. at 171. March urges us to conclude that Maine v. Moulton, 474 U.S. 159, 171 (1985), is “materially indistinguishable” from this case. Williams, 529 U.S. at 406. Althoughthe facts are somewhat similar, we cannot so conclude. In Moulton, the police sent a co-defendant turned informant to elicit incriminating statements from the other co-defendant. The police did so with express knowledge that the government agent and the defendant were to discuss both prior and future crimes. The governmentintroducedthis testimony inthe case whichpertainedto the prior crime, for which the Sixth Amendment right had attached. The court held that the defendant’s Sixth Amendment rights were violated pursuant to the elicitation ofincriminating statements. Critically, however, most ofthe testimony admitted at trial corresponded to the prior, already charged offenses. In this case, Farris and March almost exclusively discussed thefuture plot to kill the Levines, eluding discussion ofthe already-chargedmurderoffense. Nevertheless, Moulton madetwo importantrulings. The first was the actual holding that, “incriminating statements pertaining to pending charges are inadmissible at the trial ofthose charges, notwithstanding the fact that the police were also investigating other crimes, if, in obtaining this evidence, the State violated the Sixth Amendment by knowingly circumventing the accused’s right to the assistance ofcounsel.” Id. at 180. The second was to reaffirm the holding in Massiah that “the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.” 377 U.S. at 207. Indeed, the Massiah Court went onto holdthat a defendantis denied “the basic protections of[the SixthAmendment] when 13March v. McAllister, 13-5870 there was used against him at his trial evidence ofhis own incriminating words, which federal agents had deliberately elicited fromhim.” Id. at206. At first blush, it would seem that the Tennessee authorities violated Moulton on the grounds that the State solicited “incriminating statements pertaining to pending charges notwithstandingthe factthatthe police were also investigating other crimes.” Moulton, 474 U.S. at 180. However, relying on the “offense specific” nature of the Sixth Amendment, the Tennessee appellate courtheldthatthe State did notknowingly circumventthe accused’s rightto the assistance of counsel. State v. March, 395 S.W.3d 738, 779 (Tenn. Crim. App. 2011). Indeed, the court clarified that “a defendant’s invocation ofhis or her right to counsel as to an indicted offense is not an invocation ofthe right to counsel in future prosecutions.” Id. at 776;

see also McNeil, 501 U.S. at 176. The cases which opine on the “offense specific” nature ofthe Sixth Amendment present scenarios in which incriminating statements made with respect to future crimes are always introduced in those corresponding future trials; no Supreme Court case exists with respect to evidence offuture crimes being used to assist in the conviction ofpast crimes, for which the defendant’s right to counsel has already attached. Indeed in McNeil, the defendant, originally held on armed robbery charges, was questioned about murder and burglary charges in a completely differenttown. McNeil, 501 U.S. at 173-76. Evidence ofthese statements, obtained in the absence of counsel, was admitted to help convict that defendant of the murder and burglary charges, but was not specifically admitted to show his guilt in the original armed robbery charges. Id. Thus, McNeil is inapposite.

14March v. McAllister, 13-5870 Texas v. Cobb is likewise unhelpful. Inthat case, the defendant confessedto burglarizing the home ofa woman and her infant daughter who, contemporaneous to the burglary, also went missing. The defendant laterconfessedto murdering boththe woman andher child intheprocess ofthe burglary. The defendant was convicted ofcapital murder for murdering more than one person in the course ofa single criminal transaction. Id. at 166; see Tex. Penal Code. Ann. 

## § 19.03(a)(7)(A)(1994). The defendant contended that, as he was represented by counsel afterthe burglary case, his SixthAmendmentrightto counsel had attached, and thus any statements made with respect to the double murder were inadmissible. Cobb is factually inapposite: there, the defendant made incriminating statements as to a second, uncharged offense (murder), which

were then used against him in the trial ofthat second offense. The case subjudice concerns statements aboutthe secondoffenseused against the defendant atthe trial ofthefirstoffense, for whichthe righthas already attached. 6 Thus, the facts are neatly wedged between the principle that a) a person is “denied the basic protections of [the Sixth Amendment’s] guarantee when there was used againsthim at his trial evidence ofhis own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence ofhis counsel,” Massiah, 377 U.S. at 206; and b) the tenet that a defendant’s voluntary statements concerning a crime for which he has not yet been charged are admissible at a subsequent trial ofthe inchoate offense. Cobb, 532

6 In addition to McNeil’s and Cobb’s factual dissimilarity, the SixthAmendment’s “offense specific” nature actually cuts in March’s favor. The Sixth Amendmentgives a defendanttheright “to rely on counsel as a ‘medium’ betweenhim andthe State.” Moulton, 474 U.S. at 176. McNeil and Cobb make clear that it is the first offense, and notthe second, unchargedoffense forwhich the defendant may rely on counsel. As the facts inthis case show, March was unable to rely on counsel as amedium in his murder case ifhe was being inducedto give incriminating statements as to his murder case by a State authority; thathe was being questioned on an unrelated offense is inconsequential. 15March v. McAllister, 13-5870 U.S. at 173. The Supreme Court has not authored a case in which the government has intentionally placed an agent to elicit incriminating testimony as to afuture plot, but not past actions, with the intention ofusing the future plot as evidence ofa guilty mind. 7 Contra Maine

v. Moulton, 474 U.S. 159, 163-65 (1985) (police intentionally send co-defendant-turnedinformant to elicit information, both to discuss future plots but also “to discuss the charges for which [the otherco-defendant] were already under indictment.”). In spite ofMcNeil 

### and Cobb, we are unconvinced that the “offense specific” doctrine limits the applicability ofMassiah’s holding that “the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial,” 377 U.S. at 207, in this case. We

are aware of no precedent which distinguishes amongst elicited incriminating statements— whetherthey pertain to a charged offense, to an uncharged offense, orto no offense whatsoever. So long as the incriminatory statements are introduced in amatter in which the defendant’s right to counsel has already attached, aviolation occurs. It was clear that questioning March about the plot to murder government witnesses would result in March making incriminating statements as to the murder charge, for which he

was already represented. March had a right to counsel present as a medium ifthe government

The First Circuit has done so, however, in United States v. Bender, 221 F.3d 265 (1st Cir. 2000), a case which provides nearly identical facts. According to that court: “Instead, the government contends, primarily, that, since the incriminating statements concerned different and future crimes, unrelated, it says, to the pending charges, the Sixth Amendment does not apply. We disagree. The statements were incriminating not only as to future crimes (perjury, conspiracy to kidnap and murder) but also as to the pending charges. So long as the statements were incriminating as to the pending charges and were deliberately elicited by government agents, they cannot constitutionallybe admitted inthe trial ofthose charges.” Id. at269. Indeed, as here, the First Circuitfoundthat the evidence offuture malfeasance constituted strong evidence ofa guilty mind at work. The court held that it was obvious that the intentional elicitation ofevidence offuture related crimes, in the absence ofcounsel, was in clear violation ofthe Sixth Amendment. AccordMealer v. Jones, 741 F.2d 1451, 1453-55 (2d Cir. 1984). Bender, of course, is a circuit case, and is thus impotentunderthe AEDPA framework. 16March v. McAllister, 13-5870 planned on using the testimony in his murder case. Farris’ questions were likely to be incriminating as to the pending charges, and, although they would be admissible at the second prosecution for murder conspiracy, we conclude that using his statements to his original murder

case was a violation ofhis Sixth Amendmentrightto counsel. See Fellers v. United States, 540 U.S. 519, 524 (2004) (police are prohibited from the “deliberate elicitation” ofinformation from

arepresented defendant withoutawaiver ofhis rightto counsel orhis counsel’s consent). We are compelled to comment on the issue in light ofthe possibility for abuse; we will notundermine the rightto have counsel as amediumbetween the defendant and the government. Indeed, were we to find otherwise, State authorities could, through well-architected subterfuge, elicit incriminating information from defendants underthe pretext ofconducting an investigation into fabricated or trumped-up future charges. 8 Using this tactic to solicit evidence ofa guilty mind would befall many potential future defendants. We urge caution in similar cases to ensure that government officials do not subvert “the basic dictates offairness in the conduct ofcriminal

cases andthe fundamental rights ofpersons chargedwith crime.” Massiah, 377 U.S. at205. Nevertheless, our review is not simply whether this was error, but, under AEDPA, whetherthe case involved anunreasonable application offederal law. 28 U.S.C.A. 

## § 2254(d)(l) (An unreasonable application of federal law sufficient to support a writ ofhabeas corpus is different from an incorrect application of federal law). To satisfy this standard, March must show thatthe state court correctly identified the governing legal rule but applied it unreasonably to the facts ofhis case, orthat it eitherunreasonably extended orunreasonably refusedto extend

8 Weneed lookno furtherthanthe two-step interrogation employed in Missouriv. Seibert, 542 U.S. 600, 602 (2004) for an example ofdeliberate legal exploitation. (“[Ujnwarned interrogationwas conducted inthe station house, and the questioning was systematic, exhaustive, andmanagedwithpsychological skill.”). 17March v. McAllister, 13-5870
alegal principle from Supreme Courtprecedentto anew context. 28 U.S.C. 

## § 2254(d); Sanborn

v. Parker, 629 F.3d 554, 564 (6th Cir. 2010). Indeed, this standard gives more deference to the state courtthanwould a “clearerror” approach. Loclcyerv. Andrade, 538 U.S. 63, 75—76 (2003). We disagree with the District Court’s conclusion that the Tennessee court applied the correct legal rule—the governing law is not the McNeil-Cobb line ofcases but rather Massiah, and, to an extent, Moulton. However, we wouldbe remiss to conclude thatthe debate is “beyond any possibility for fairminded disagreement,” O’Neal v. Bagley, 728 F.3d 552 (6th Cir. 2013); rather we think that a somewhat fair argument may be made to the contrary. Indeed, to extend Massiah ‘s holding thatthe elicitation ofinformation—irrespective ofits pertinence to charged or uncharged crimes—was calledinto question inthe four-JusticeMoulton dissent. 474 U.S. at 188

n. 3 (1985) (“The Court’s opinion seems to read Massiah as ifit definitively addresses situations where the police are investigating a separate crime.”). Thatthe Supreme Courthas not opined on this unusual factual scenario almost ipsofacto allows us to conclude that the state court did not unreasonably err. Accordingly, even though we find that the Tennessee appellate court incorrectly appliedthe right legal rule, with no Supreme Court case resolving this unsettled legal quandary, we are unable to conclude that the court unreasonably applied clearly established federal law. See Fleming v. Metrish, 556 F.3d 520, 527—28 (6th Cir. 2009) (“the fact that a federal court might disagree with the [state court’s] application of [federal law] does notjustify the conclusion that the [state court] unreasonably applied the Supreme Court’s decision.”). As such, we AFFIRM the districtcourt’s denial ofMarch’s writ ofhabeas corpus.

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