RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0266p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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MAHIR DAOUD,
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Petitioner-Appellant,
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No. 08-1673
v.
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Respondent-Appellee. -
SUE DAVIS, Warden,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-13310—Gerald E. Rosen, Chief District Judge.
Argued: June 15, 2010
Decided and Filed: August 25, 2010
Before: SILER and GIBBONS, Circuit Judges; REEVES, District Judge.*
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COUNSEL
ARGUED: Sanford A. Schulman, SCHULMAN & ASSOCIATES, Detroit, Michigan,
for Appellant. Janet A. Van Cleve, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Sanford A. Schulman,
SCHULMAN & ASSOCIATES, Detroit, Michigan, for Appellant. Raina I. Korbakis,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellee.
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OPINION
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SILER, Circuit Judge. Petitioner Mahir Daoud, convicted of the first-degree
murder of his mother, filed a petition for writ of habeas corpus, pursuant to 28 U.S.C.
*
The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
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§ 2254. The district court denied his petition and granted a certificate of appealability
(“COA”) as to one issue: whether Daoud knowingly and intelligently waived his
Miranda rights. We expanded the COA to include Daoud’s claim of ineffective
assistance of counsel. For the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Police officers found the burned body of Daoud’s mother, Teriza Daoud, inside
a dumpster in Toledo in 1985. Although the police identified Daoud as a suspect, they
never arrested him. In 1994, Daoud spontaneously confessed to the murder to a 911
operator and to two Detroit police officers after jumping in front of their marked vehicle.
Daoud waived his Miranda rights and gave a detailed account of the murder. At the
Detroit Police Department he again waived his Miranda rights and repeated what he had
told the prior officers. Two members of the Troy Police Department—Sergeant Mark
Tuck, a member of the original investigation, and Detective Mitch Lenczewski—went
to Detroit to interview Daoud. Daoud refused to speak to Tuck, but waived his Miranda
rights and gave a detailed, tape-recorded account of the murder, including details about
the disposal of the body and his attempts to clean up the evidence.
Daoud was charged with murder. The trial court ordered a forensic examination
to determine whether Daoud was competent to stand trial and whether he was criminally
responsible for his actions. Based on an examination by Dr. Balay of the Center for
Forensic Psychiatry (“Forensic Center”), the trial court concluded that Daoud was
incompetent and ordered that he be reexamined to determine whether he was competent
to waive his Miranda rights when he confessed a month earlier. During the next year,
doctors Robert Mogy, Charles Clark, and Thomas Grisso examined Daoud. The three
experts disagreed as to Daoud’s competency. After hearings on the issue, the trial court
excluded all of the confessions, concluding that Daoud did not knowingly and
intelligently waive his Miranda rights.
The Michigan Court of Appeals reversed the trial court’s decision to the extent
that it suppressed all of Daoud’s statements, reasoning that Daoud’s statements before
No. 08-1673 Daoud v. Davis Page 3
he was transported to the police station were not the result of a custodial interrogation,
and thus did not violate Miranda. However, it affirmed the trial court’s suppression of
Daoud’s statements made to the police after he was in custody. Later, the Michigan
Supreme Court reversed the trial court’s decision in its entirety, reasoning that it erred
as a matter of law by wrongly focusing on Daoud’s motivation for confessing, rather
than considering whether he could understand his Miranda rights. People v. Daoud, 614
N.W.2d 152, 160-61 (Mich. 2000). The Michigan Supreme Court concluded that
Daoud’s waiver was knowing and intelligent, and remanded the case for trial.
After a bench trial, Daoud was convicted of first-degree murder and sentenced
to life imprisonment without the possibility of parole. With new counsel, Daoud filed
an appeal of right in the Michigan Court of Appeals, again raising the admission of his
statements and claiming ineffective assistance of counsel based on trial counsel’s failure
to pursue the insanity defense. The Michigan Court of Appeals remanded the case to
allow Daoud to move for an evidentiary hearing before the trial court, pursuant to People
v. Ginther, 212 N.W.2d 922 (Mich. 1973). On remand, the trial court held a hearing to
determine whether to allow the evidentiary hearing, in which Daoud’s trial counsel
testified regarding his decision not to assert an insanity defense. Based on trial counsel’s
testimony, the trial court denied Daoud’s motion for an evidentiary hearing. It also
denied Daoud’s motion to appoint another independent examiner to assess the defense.
Appellate counsel filed a supplemental brief in the Michigan Court of Appeals,
challenging the district court’s denial of the evidentiary hearing and its refusal to permit
an independent examination. The Michigan Court of Appeals affirmed Daoud’s
conviction and sentence. People v. Daoud, No. 250166, 2004 WL 2624877, at *4-5
(Mich. Ct. App. Nov. 18, 2004). It concluded that the law-of-the-case doctrine
precluded it from revisiting the admissibility of Daoud’s confession, that trial counsel’s
performance was not deficient, and that Daoud had not properly preserved for appeal the
trial court’s denial of an evidentiary hearing and another independent examination of
Daoud. Daoud appealed to the Michigan Supreme Court, which denied leave to appeal.
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People v. Daoud, 699 N.W.2d 700 (2005). In 2006, Daoud filed the instant petition for
habeas corpus, which the district court denied.
II. STANDARD OF REVIEW
Daoud’s petition for writ of habeas corpus is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214
(1996). Under AEDPA, we may not grant a petition for writ of habeas corpus unless the
state court adjudication of the claim “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 that “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.”1 28 U.S.C. § 2254(d).
III. DISCUSSION
A. Miranda Waiver
Daoud contends that he did not knowingly and intelligently waive his Miranda
rights when he confessed to his mother’s murder and that admitting those statements at
trial violated his Fifth Amendment rights. In Miranda v. Arizona, 384 U.S. 436 (1966),
the Supreme Court established “certain procedural safeguards that require police to
advise criminal suspects of their rights under the Fifth and Fourteenth Amendments
before commencing custodial interrogation.” Duckworth v. Eagan, 492 U.S. 195, 201
(1989). However, a suspect may waive his Miranda rights “provided the waiver is made
voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. This inquiry “has
two distinct dimensions.” Colorado v. Spring, 479 U.S. 564, 573 (1987) (quoting Moran
v. Burbine, 475 U.S. 412, 421 (1986)).
1
Daoud never cites this standard and wrongly suggests a de novo standard of review applies.
Instead, he insists that we review de novo the district court’s conclusion on a motion to suppress.
Although we do review a district court’s decision on a motion to suppress de novo, we do not have before
us a motion to suppress. Instead, we have before us a petition for writ of habeas corpus. Our review of
the district court’s legal conclusions on a petition for habeas are subject to de novo review. Nonetheless,
our review of the state court’s decision is subject to the more deferential AEDPA standard discussed
above. Because Daoud fails to recognize the appropriate standard of review, he never argues that the state
court’s conclusions were contrary to or involved an unreasonable application of clearly established federal
law.
No. 08-1673 Daoud v. Davis Page 5
First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion, or deception. Second, the waiver must have been
made with a full awareness both of the nature of the right being
abandoned and the consequences of the decision to abandon it. Only if
the “totality of the circumstances surrounding the interrogation” reveal
both an uncoerced choice and the requisite level of comprehension may
a court properly conclude that the Miranda rights have been waived.
Moran, 475 U.S. at 421 (quoting Fore v. Michael C., 442 U.S. 707, 725 (1979)).
To be deemed knowing and intelligent, “[t]he Constitution does not require that
a criminal suspect know and understand every possible consequence of a waiver of the
Fifth Amendment privilege.” Spring, 479 U.S. at 574. Instead, “we examine ‘the
particular facts and circumstances surrounding [the] case, including the background,
experience, and conduct of the accused,’” Garner v. Mitchell, 557 F.3d 257, 261 (6th
Cir. 2009) (alterations in original) (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938)), to determine “whether the ‘suspect [knew] that he [could] choose not to talk to
law enforcement officers, to talk only with counsel present, or to discontinue talking at
any time,’” id. (alterations in original) (quoting Spring, 479 U.S. at 574).
The Michigan Supreme Court correctly recited the standard for the knowing and
intelligent prong in analyzing Daoud’s claim. See Daoud, 614 N.W.2d at 159. In
particular, it cited People v. Cheatham, 551 N.W.2d 355 (Mich. 1996), which relied on
Supreme Court precedent, for the proposition that “‘a suspect need not understand the
ramifications and consequences of choosing to waive or exercise the rights that the
police have properly explained to him’” to knowingly waive his Miranda rights. Daoud,
614 N.W.2d at 159 (quoting Cheatham, 551 N.W.2d at 367). It further explained that
“the only inquiry with regard to a ‘knowing and intelligent’ waiver of Miranda rights is
. . . whether the defendant understood ‘that he did not have to speak, that he had the right
to the presence of counsel, and that the state could use what he said in a later trial against
him.’” Id. at 162 (quoting Cheatham, 551 N.W.2d at 367). The Michigan Supreme
Court’s recitation of the law was not contrary to clearly established Supreme Court law.
See Spring, 479 U.S. at 574; Connecticut v. Barrett, 479 U.S. 523, 530 (1987).
No. 08-1673 Daoud v. Davis Page 6
Because the Michigan Supreme Court correctly recited the law, we may grant
Daoud’s petition on this issue only if he can demonstrate that the state court’s conclusion
was an unreasonable application of that law. We may not issue the writ “simply because
[we] conclude[] in [our] independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000).
After considering the testimony of the interrogating officer, and that of the three
expert witnesses, the Michigan Supreme Court concluded that “[v]iewing the objective
circumstances surrounding defendant’s waiver, the waiver was clearly knowing and
intelligent.” Daoud, 614 N.W.2d at 161. In particular, it noted that the experts and the
trial court all appeared to agree that the defendant had “‘the intellectual capability of
understanding the rights which [were] read to him.’” Id. at 163 (quoting the trial court).
There is nothing to suggest that conclusion was an unreasonable application of clearly
established federal law.
The Supreme Court has never directly addressed under what circumstances a
suspect’s mental illness can impede his ability to knowingly and intelligently waive his
Miranda rights. In Colorado v. Connelly, 479 U.S. 157 (1986), it clarified that mental
illness does not affect the voluntariness prong under Miranda. Id. at 170. However,
Connelly did not address whether mental illness can impact the knowing or intelligent
prong. See Moran, 475 U.S. at 421. Most courts have recognized that mental illness is
a factor to consider in determining whether a waiver was knowing and intelligent. See,
e.g., United States v. Cristobal, 293 F.3d 134, 142 (4th Cir. 2002); see also Hanna v.
Price, 245 F. App’x 538, 543 (6th Cir. 2007).
At an evidentiary hearing conducted in September 1996, Dr. Mogy, the
evaluation unit assistant director at the Forensic Center, and Dr. Clark, an independent
evaluator assigned by the court, testified regarding Daoud’s ability to waive his Miranda
rights. Dr. Mogy testified that he believed there was a “reasonable possibility” that
Daoud “did not appreciate the consequences of his confession.” In particular, he opined
that Daoud’s delusional belief that God would protect him if he confessed interfered with
No. 08-1673 Daoud v. Davis Page 7
his ability to waive those rights. Nonetheless, Dr. Mogy stated that Daoud “did at some
point seem to be aware that he could go to jail for making these statements.” He also
recognized that Daoud’s confession followed a logical sequence, that he was trying to
confess, that he understood the officer’s questions, and that he indicated he understood
his rights. Dr. Mogy even admitted that Daoud probably understood the literal aspects
of his rights. However, because Dr. Mogy believed that his motivation for confessing
was impacted by his mental illness, he concluded that he could not knowingly and
intelligently waive his Miranda rights. Dr. Clark, however, opined that Daoud’s waiver
was knowing and intelligent. Specifically, he concluded that Daoud clearly knew he was
talking to the police, that his statement was coherent, sequential, and lacked the markers
of a psychotic statement, and that he did not indicate any difficulty in understanding that
the officers would use his statements in court. Thus, Dr. Clark believed Daoud was able
to waive his Miranda rights when he confessed.
Because these two experts disagreed, the court appointed a third expert,
Dr. Grisso of the University of Massachusetts Department of Psychiatry, to testify
regarding Daoud’s competence. Dr. Grisso testified that his opinion regarding Daoud’s
ability to waive his Miranda rights depended on Michigan’s requirements for a valid
waiver. If a knowing and intelligent waiver simply required a straightforward
understanding of the Miranda rights, then he believed Daoud was capable of waiving
those rights. However, if a knowing and intelligent waiver demanded an appreciation
of the consequences, he believed that Daoud was not capable of waiving his rights.
Considering the testimony of the three experts, as well as the state trial court’s
factual conclusions regarding the credibility of the witnesses, the Michigan Supreme
Court’s conclusion was not unreasonable. As the Michigan Supreme Court explained,
the trial court found that Daoud had an intellectual understanding of his rights. Daoud,
614 N.W.2d at 163 (quoting the trial court’s conclusion that “this case presents a
defendant with the intellectual capacity of understanding the rights which [were] read
to him”). The experts all agreed that Daoud comprehended what was said to him and
understood that the officers would use his statements against him. They also all
No. 08-1673 Daoud v. Davis Page 8
appeared to agree that he understood he did not have to speak and that he could have an
attorney. Because a defendant does not have to understand “every possible consequence
of a waiver,” Spring, 479 U.S. at 574, and the evidence demonstrates that Daoud had an
understanding of his rights, the Michigan Supreme Court’s conclusion that his waiver
was knowing and intelligent was not an unreasonable application of federal law.
Our decision in Hanna v. Price, 245 F. App’x 538 (6th Cir. 2007), is not to the
contrary. In Hanna, we granted a petition for habeas corpus on petitioner’s claim that
his Miranda waiver was involuntary. In that case, petitioner’s physical and mental states
were so severely strained at the time he confessed, that “[i]t [was] virtually impossible
to conclude, under the totality of the circumstances . . . , that Hanna was able to think
rationally such that he had the ‘requisite level of comprehension’ to have waived his
rights ‘with a full awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it.’” Id. at 543 (quoting Moran, 475 U.S. at
421). In the case at hand, however, we do not have such an extreme set of facts from
which it would be impossible to conclude that Daoud was able to waive his rights. Thus,
on the record, it was not unreasonable for the state court to conclude that Daoud’s waiver
was knowing and intelligent.
B. Ineffective Assistance of Counsel
The Supreme Court has established the following two-prong test to determine
whether counsel provided ineffective assistance:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed the defendant by the
Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). The Michigan Court of Appeals,
the last state court to review Daoud’s ineffective assistance claim, correctly recited the
standard set forth in Strickland. See Daoud, 2004 WL 2624877, at *3. Thus, we review
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Daoud’s ineffective assistance claim to determine whether the state court’s decision was
an unreasonable application of that law.
Under Strickland’s deficiency prong, Daoud must demonstrate that his counsel’s
representation fell below “an objective standard of reasonableness” under “prevailing
professional norms.” Strickland, 466 U.S. at 688. We “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under
the circumstances, the challenged conduct might be considered sound trial strategy.” Id.
at 689 (internal quotation marks omitted). Daoud asserts that trial counsel was
ineffective for failing to have him independently evaluated to determine whether he was
insane at the time of the murder and for failing to assert an insanity defense.2 The
Michigan Court of Appeals rejected this claim, concluding that defense counsel was not
deficient in his performance, because he did in fact explore the possibility of an insanity
defense. In particular, trial counsel testified that he discussed the possibility of an
insanity defense with the three experts that testified regarding Daoud’s competency to
waive his Miranda rights. However, none of these experts believed it was feasible to
make a determination as to Daoud’s mental state at the time of the murder, which
occurred more than ten years earlier.
Daoud insists that the report submitted by Dr. Grisso, an independent examiner
appointed by the court and not affiliated with the Forensic Center, put trial counsel on
notice that Daoud was insane at the time of the offense such that he should have sought
an independent evaluation. We find nothing to support that argument. Although
Dr. Grisso’s report focused on Daoud’s competency to waive his Miranda rights, it noted
that Daoud’s friends and family did not notice any “odd or strange” behavior when he
was between the ages of eighteen and twenty-one years old. Dr. Grisso further opined
that it was not until two years after his mother’s murder that he began to seriously
2
Daoud also attempts to raise the issue of the state trial court’s denial of his request for an
independent medical examiner to assess the issue of his insanity defense. However, we decline to address
this issue, because it is not an issue covered by the COA.
No. 08-1673 Daoud v. Davis Page 10
deteriorate, and that the early stage of Daoud’s disorder did not set in until he was in his
mid-twenties (he was twenty-two at the time of his mother’s murder).
In addition, after trial counsel filed a notice of his intention to assert an insanity
defense, the court ordered Dr. Kaplan, a fellow in forensic psychiatry at the Forensic
Center, to examine Daoud to determine whether he was criminally responsible.
According to Dr. Kaplan, Daoud was not mentally ill at the time of the offense. He also
noted that it would be difficult to establish a diagnosis for Daoud, given his heavy
substance abuse history. Dr. Kaplan concluded that Daoud did not meet the criteria for
a finding of legal insanity.
“[A] counsel’s failure to explore the possibility of a not guilty by reason of
insanity defense through reasonable investigation, including the use of a qualified mental
health expert, can rise to the level of constitutionally defective counsel.” Lundgren v.
Mitchell, 440 F.3d 754, 771 (6th Cir. 2006). However, the record before us indicates
that trial counsel did conduct a reasonable investigation, including filing a notice of
intention to seek the insanity defense. Based on that notice, Daoud’s mental state was
examined by a psychologist to determine whether he was capable of being criminally
responsible for his actions. Additionally, trial counsel discussed the possibility of the
defense with all of the experts who had interviewed Daoud as to his competency to
waive his Miranda rights. According to trial counsel, each of the experts believed that
he or she would be unable to assess his mental state at the time of the murder. Even if
Daoud’s appellate counsel has since found an expert who would conclude that he was
insane at the time of the murder, the Michigan Court of Appeals’s conclusion that trial
counsel’s performance was not deficient was not unreasonable. “[R]easonably diligent
counsel may draw a line when they have good reason to think further investigation
would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383 (2005). There is no evidence
indicating that any of the experts was not competent. “The question before [us] is not
whether all mental health experts would agree on whether the defense was viable, but
whether counsel’s decision not to pursue the defense was a reasonable strategic choice.”
Lundgren, 440 F.3d at 772. The evidence in the record indicates that trial counsel’s
No. 08-1673 Daoud v. Davis Page 11
choice not to pursue further the insanity defense was a reasonable strategic choice.
Accordingly, the Michigan Court of Appeals’s conclusion that trial counsel’s
performance was not deficient was not an unreasonable application of clearly established
federal law.
AFFIRMED.