Argued: May 9, 2019
from the United States District Court for the Eastern
District of Michigan at Flint. No. 4:15-cv-10356-Linda V.
Parker, District Judge.
Dunay, Seth Yost, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
Charlottesville, Virginia, for Appellant.
R. Shimkus, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing,
Michigan, for Appellee.
Dunay, Seth Yost, Stephen L. Braga, UNIVERSITY OF VIRGINIA
SCHOOL OF LAW, Charlottesville, Virginia, for Appellant.
R. Shimkus, Andrea M. Christensen-Brown, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
Before: SUHRHEINRICH, BUSH, and READLER, Circuit Judges.
K. BUSH, CIRCUIT JUDGE.
Mitchell was convicted in Wayne County, Michigan, of
first-degree murder, carjacking, and felony firearm
possession for chasing and beating Michael Jorden, shooting
and killing him, and then stealing his car. In his habeas
petition, pursuant to 28 U.S.C. § 2254, Mitchell raises
two issues: (1) whether the interrogating officer (Detective
Collins) misled Mitchell to believe that he did not have a
right under the Fifth Amendment to have counsel present
during interrogation and misstated the availability of a
defense attorney in the county where Mitchell was
interrogated; and (2) whether Detective Collins provided
Miranda warnings to Mitchell in
"mid-stream," in violation of Supreme Court case
law discrediting this two-step technique.
manner in which Collins interacted with Mitchell regarding
the right to counsel is troubling. However, the Michigan
Supreme Court's decision-that the Miranda
warnings, considered as a whole, adequately advised Mitchell
of his rights-was not contrary to or an unreasonable
application of Supreme Court precedent. Accordingly, we
AFFIRM the district court's denial of
Mitchell's § 2254 petition.
21, 2008, Mitchell and Jorden got into a dispute over the
ownership of a gun, resulting in Jorden's death.
to Mitchell, his father, Vaughn Brown, had given him a gun
and Mitchell had, in turn, given that weapon to Jorden.
Jorden subsequently lost the gun but gave Mitchell another,
which Mitchell mistakenly thought was a replacement for the
lost firearm until Jorden asked Mitchell to pay for the new
one. Before further addressing the matter with Jorden,
Mitchell called his father for "advice as to the
situation." R. 10-11, PageID 1130.
Mitchell, and Jorden then all met, and discussions over the
ownership of the gun soon escalated into a physical
altercation. Apparently fearing that Jorden would use a gun
on him, Mitchell used a pipe-like metal object given to him
by Brown to strike Jorden on the head. Jorden retreated, but
Mitchell pursued, hitting him at least twice more. What
happened next is subject to dispute based on differing
accounts of witnesses. The disagreement essentially boils
down to whether Brown or Mitchell shot Jorden. The jury
determined that Mitchell fired a shot that killed Jorden, and
then either Brown or Mitchell shot at Jorden's body
multiple times. The jury also determined that, after the
shooting, Mitchell took Jorden's keys and money and drove
off in Jorden's vehicle.
affidavit recounts the following as to his arrest and
interrogation. He was arrested on September 9, 2008. The
following morning, Detective Collins took Mitchell out of his
cell, interrogated him for thirty minutes without reading him
his Miranda rights, and then returned him to his
cell. In the afternoon, Collins again removed Mitchell from
his cell and again questioned him without Miranda
warnings. During this second interrogation, Mitchell told
Collins that there had been "an incident about a gun
before June 21," R. 1-2, PageID 169 (emphasis
added), prompting Collins to ask Mitchell about the night of
June 21, when the shooting happened. Mitchell responded that
"there was a lot of us who were just hanging around
getting ready to go out." Id. at PageID 169-70.
When Collins pressed for further details, Mitchell told
Collins that he "would tell him what happened," but
that Mitchell would need "to start from the beginning so
he would understand." "As soon as I said
this," according to Mitchell's affidavit,
"Detective Collins stopped me." Id. at
PageID 170. Collins then took Mitchell upstairs to an
interrogation room to be Mirandized and video-recorded.
recollection of his interaction with Mitchell is somewhat
different than Mitchell's. Collins testified at trial
that he had only one conversation with Mitchell prior to the
video-recorded interrogation and that the conversation lasted
approximately five minutes. During this conversation, Collins
told Mitchell he knew Mitchell was involved in a homicide
because an eyewitness linked Mitchell to the crime. Collins
then asked Mitchell to confirm his involvement, "[a]nd
when he started talking about that he had some involvement,
that's when I took him upstairs." R. 10-10, PageID
Mitchell and Collins agree that once upstairs, Collins gave
Mitchell a sheet explaining Mitchell's Miranda
rights. The "Constitutional Rights Certificate of
1. I have a right to remain silent and that I do not have to
answer any questions put to me or make any statements.
2. Any statement I make or anything I say will be used
against me in a Court of Law.
3. I have the right to have an attorney (lawyer) present
before and during the time I answer any questions or make any
4. If I cannot afford an attorney (lawyer), one will be
appointed for me without cost by the Court prior to any
5. I can decide at any time to exercise my rights and not
answer any questions or make any statement.
PageID 163. Then the following exchange occurred:
INVESTIGATOR [Collins]: Okay, Vaughn, I'm going to give
you your Constitutional Rights . . . . I need you to read the
first Right out loud.
MR. MITCHELL: I understand the [sic] I have the right to
remain silent and that I do not have to answer any questions
put to me or make any statements.
INVESTIGATOR: You can read the rest to yourself. Do you
MR. MITCHELL: I ought to just read #1 again. (10 min.
pause-Mr. Mitchell reading his rights)
INVESTIGATOR: Do you understand-did you finish?
MR. MITCHELL: Uh, I do have a question. Number 4, that's
not speaking currently-right now?
INVESTIGATOR: Well the question speaks for itself. If I
cannot afford an attorney-you probably can-one will be
appointed to me without cost by the ...