Traci Lynette McCalvin v. Joan Yukins, Warden

R. GUY COLE, Jr., Circuit Judge,

dissenting.

I disagree with the majority’s resolution of this appeal, and I would affirm the district court’s grant of the writ of habeas corpus.

I. Coercion claim

The district court granted the writ based upon its conclusions that McCalvin’s confession was coerced and that the untimeliness of McCalvin’s suppression motion was excused by the ineffective assistance of McCalvin’s counsel. The majority opinion addresses only the question of whether McCalvin’s confession was coerced, and in answering in the negative rejects the coercion claim both as an independent ground for habeas relief and as a basis to satisfy the prejudice prong of McCalvin’s ineffective assistance of counsel claim. Yet the government’s brief presents only the following issue for our review: “Whether the district court erred in finding that the Michigan Court of Appeals’ application of federal law was unreasonable and contrary to established Sixth Amendment law under 28 U.S.C. § 2254(d) where defense counsel’s tactical decision to delay a motion to suppress Petitioner’s confession was part of a reasoned trial strategy.” Resp.-Appellant’s Br. at 2. The government cites the two-part Strickland test for determining ineffective assistance of counsel — namely, deficiency in counsel’s performance and resulting prejudice — but devotes its brief to arguing that counsel’s performance was not deficient. Resp.-Appellant’s Br. at 13-19. The entirety of the government’s argument pertaining to the prejudice prong reads as follows:

Petitioner is also unable to establish prejudice given the fact that the statements made to the detective were properly admissible. Petitioner cannot dem*723onstrate that, but for counsel’s alleged error in not raising the motion to suppress earlier in the proceedings, the outcome of her trial would have been different. This is especially true given the overwhelming evidence of Petitioner’s guilt even absent her statements to the police.

Resp.-Appellant’s Br. at 19. Even in this short paragraph, the only portion that can be characterized accurately as an argument that McCalvin’s confession was not coerced is the bare assertion that “the statements made to the detective were properly admissible.”

It is well established that issues not raised by an appellant in its opening brief, or issues “adverted to in a perfunctory manner [without] some effort at developed argumentation,” are deemed waived. United States v. Johnson, 440 F.3d 832, 846 (6th Cir.2006). Some of our decisions go so far as to suggest that waived arguments are “not reviewable” by this court; e.g. Dixon v. Ashcroft, 392 F.3d 212, 217 (6th Cir.2004); Robinson v. Jones, 142 F.3d 905, 906 (6th Cir.1998); Boyd v. Ford Motor Co., 948 F.2d 283, 284 (6th Cir.1991); while elsewhere we suggest that this court has the option of considering or ignoring the waived arguments as we see fit; e.g., Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir.1989). Even assuming we have complete discretion to entertain or to ignore the coerced confession argument, I do not believe addressing the issue is appropriate here.

At oral argument this panel sought an explanation from the government as to why the coerced confession issue, to which a substantial portion of the government’s oral argument was devoted, was absent from the government’s brief. The government responded that it focused on the district court’s determination of deficient performance because it believed the court’s analysis of this issue to be more obviously flawed, but stated that it did not intend to waive the argument that McCalvin’s confession was not coerced. I do not believe such an explanation can excuse the government’s failure to brief the issue. The government may not depend upon this court to assume that it is advancing every available argument; the petitioner certainly enjoys no such benefit. In cases where a district court has granted relief to a habeas petitioner, it is not this court’s place, as a neutral adjudicatory body, to search the record for grounds upon which to reverse a grant of the writ.

Even if the issue of the voluntariness of McCalvin’s confession had been properly preserved for appeal, I would affirm the district court’s determination of the issue. McCalvin was taken into custody around 1:30 a.m. and her interrogation began some time between 3:30 and 5:00 a.m. JA 857-58, 861. During several hours of interrogation conducted by Detectives Palmer and Shadwell, McCalvin consistently maintained, both orally and in a written statement of her own drafting, that she accidentally pulled her car forward while thinking it was in reverse. Detective Helgert took over the interrogation at approximately 7:30 or 8:00 a.m. and proceeded to interrogate McCalvin for another hour and a half. JA 570-71. Detective Helgert testified that he told McCalvin that “it was very important ... to explain why she did what she did,” because if they believed she intended to kill the victim she would be charged with murder. JA 578. He suggested she provide a statement that she intended only to scare or hurt the victim. JA 577. Detective Helgert told McCalvin that if she were convicted of first degree murder she would go to jail for life and have “no contact” with her family, including her children. JA 650. Helgert testified that he posed a question to McCalvin *724along the lines of, “Did you intend to kill her, or were you just intending to scare her, or just to hurt her? Those various choices.” He testified that “her answer was the least of several, T just intended to scare her.’ ” JA 641. Detective Helgert eventually wrote out a list of questions, to which McCalvin provided very brief written responses. In response to the question, “Did you intend to Mil anyone with your BMW last night?”, McCalvin wrote, “No.” In response to the immediately following question, “What was the reason for accelerating your BMW so fast up Linell’s driveway?”, McCalvin wrote, “To scare.” McCalvin had no opportunity to sleep during the course of her time in police custody and her interrogation (from approximately 1:30 a.m. to 9:00 a.m.). JA 513. She testified that during the interrogation she was “in shock” and “numb.” JA 861. Given the totality of the circumstances, including the lateness of the hour and McCalvin’s lack of sleep, the length of the interrogation and repetitive nature of the questioning, the explicit threat of the loss of contact with her children, and the implicit suggestion that if she chose the “least” of three choices regarding intent then she would escape these consequences, the facts support a conclusion that McCalvin’s will was overborne. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (listing deprivation of sleep, length of interrogation, and repetitive nature of questioning among factors to consider in evaluating coerciveness); Lynumn v. Illinois, 372 U.S. 528, 532-34, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (considering threats involving defendant’s children in finding coercion).

At the very least, McCalvin is entitled to a remand for an evidentiary hearing as to whether her confession was coerced. The record contains several discrepancies between McCalvin’s and Detective Helgert’s recollections of the events, including statements that would go to the heart of her coercion claim. For instance, McCalvin testified, “[Helgert] just kept telling me that he was trying to help me, and I had to change my story ... because [the victim] was dead ... And they were going to charge me with First Degree Murder ... And he told me that I wouldn’t see my family or my Mds, and that the People was going to contact my Mds the next day.” JA 865-66. She stated, “I was scared, I was numb, I didn’t know what to do, and I asked him ... what did he want me to do?” She further stated, “He told me that — you know, if I change my statement and say I meant to scare her then I could go home ... And the Prosecutor probably would just throw it out and wouldn’t charge me with anything.” JA 868. The majority opinion emphasizes that “Helgert never admitted to promising McCalvin anything.” Majority Opinion at 7. But neither the Michigan Court of Appeals’s opinion nor the district court’s opinion contains findings of fact crediting either witness’s testimony above the other’s. I believe that McCalvin’s assertions, if true, describe a situation that is not reasonably distinguishable from the promises of leniency found to be coercive in Lynumn, 372 U.S. at 532-34, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963). Upon the record available to this court, I believe we cannot conclude that the district court erred in granting McCalvin habeas relief.

II. Procedural default and ineffective assistance of counsel

Although the majority opinion does not reach the issue, I also believe that the district court correctly concluded that McCalvin’s coercion argument was not procedurally barred under AEDPA. A petitioner may overcome a state procedural bar to habeas review by demonstrating both an external cause for the procedural *725default, e.g., constitutionally ineffective assistance of counsel, and actual prejudice. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir.1986). Although a failure to file a suppression motion does not constitute per se ineffective assistance of counsel, the decision must reflect a sound trial strategy and not counsel’s mistaken understanding of the law. Kimmelman v. Morrison, 477 U.S. 365, 384-85, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

The Michigan Court of Appeals’s conclusion that McCalvin’s counsel was not ineffective is impossible to square with its conclusion that McCalvin’s suppression motion was untimely and procedurally barred under state law. Counsel’s postponement of his suppression motion until the motion was procedurally barred by state law cannot reflect a sound trial strategy. The attorney’s professed “strategy” of eliciting more truthful testimony from the officer under cross-examination regarding the voluntariness of the confession, see JA 113-15, is useless if the confession cannot be excluded after the jury has heard the officer’s testimony. It may be argued that the trial judge had the discretion under Michigan law to grant the defense counsel’s motion at the end of the witness’s testimony, and that defense counsel took a reasonably calculated risk that the motion would be granted given the circumstances. If this were so, then Michigan law did not supply an adequate and independent procedural ground for barring habeas review of McCalvin’s motion, see Deitz v. Money, 391 F.3d 804, 810-11 (6th Cir.2004) (holding rule giving discretion to court to grant delayed appeals without specifying criteria for exercising discretion is not adequate state ground to deny habeas review), and a finding of ineffective assistance is unnecessary to reach the merits of McCalvin’s coerced confession claim.

III. Conclusion

Given the obvious deficiency of McCalvin’s counsel and the government’s waiver of the issue of whether McCalvin’s confession was coerced, I would affirm the district court’s grant of the writ. Even if this court were to revisit the merits of McCalvin’s coercion claim despite the government’s waiver of the issue, I would vacate and remand for a full and fair evidentiary hearing on the issue. I therefore respectfully dissent from the majority's decision to reverse the judgment of the district court.