Rule 206 ELECTRONIC CITATION: 2000 FED App. 0177P (6th Cir.) File Name: 00a0177p.06… v. GERALD HOFBAUER, Warden

*The Honorable Frank J. Magill, Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0177P (6th Cir.)
File Name: 00a0177p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
C HRISTOPHER M ACHACEK,
Petitioner-Appellant,
v.
GERALD HOFBAUER, Warden,
Respondent-Appellee.
;>

1
No. 98-1815
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-71761—Nancy G. Edmunds, District Judge.
Argued: March 15, 2000
Decided and Filed: May 26, 2000
Before: MERRITT, DAUGHTREY, and MAGILL, Circuit
Judges.*
_________________
COUNSEL
ARGUED: Don Ferris, FERRIS & SALTER, Ann Arbor,
Michigan, for Appellant. Laura Graves Moody, OFFICE OF
THE ATTORNEY GENERAL, HABEAS CORPUS

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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, for
Appellant. Laura Graves Moody, OFFICE OF THE
ATTORNEY 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 a
separate 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 murder
in a Michigan state court. At the district court level,
Machacek argued that the Michigan trial court erred in
admitting an incriminating statement obtained in violation of
his Fourth, Fifth and Sixth Amendment rights. The district
court denied Machacek's petition, finding his Fourth
Amendment claim barred by Stone v. Powell, 428 U.S. 465
(1970), and his other claims to be meritless. For reasons to be
discussed, we affirm.
I. Background
On December 30, 1986, petitioner Christopher Machacek
and Steven Stamper, both sixteen years old at the time, took
Mary Ann Hulbert, who was thirteen years old, into the
woods near Ann Arbor, Michigan, and shot her several times.
Her body was found by two hunters on January 7, 1987. An
autopsy performed on January 8, 1987, revealed that Mary
Ann had been shot seven times from both the front and back,
with the death bullet penetrating her heart and lungs.
No. 98-1815 Machacek v. Hofbauer 15
________________
DISSENT
________________
MERRITT, Circuit Judge, dissenting. I disagree with
Section V of the Court’s opinion. As the Court’s quotation of
the transcript sets out, the detective who interrogated
Machacek asked him to sign “directly below . . . a paragraph
that is called Waiver of Rights” which says “I have read . . .
my rights, and . . . I waive them . . .” Immediately following
this request for Machacek to sign the waiver, the detective
said “we’re not asking you to waive or give up any of your
rights or anything of that nature.” This latter statement was
false and in my opinion constitutes a blatant violation of
Miranda. The same detective then told Machacek the same
thing again, a second time: “[Signing the waiver] is not
waiving anything,” he said. Machacek then signed the
waiver. Although I am certainly not anxious to reverse this
case, I do not see how we can say anything other than that we
cannot sanction this classic violation of Miranda. Maybe a
detailed harmless error analysis could sustain the state
conviction, but I cannot go along with my colleagues’ view
that no constitutional error happened. Machacek only signed
the waiver of rights after being twice told he was waiving
nothing. In other words, he was falsely told that he could talk
and get it off his chest without running the risk of
incriminating himself. I agree with the rest of the Court’s
opinion.

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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 Machacek v. Hofbauer 3
2We note that some of the audio recordings were made without the
knowledge of the questioning officers.
After the body of Mary Ann was discovered on January 7,
1987, police went to Machacek's house and requested that
Diana McKenzie, Machacek's foster mother, bring him to the
station. Ms. McKenzie agreed and escorted Machacek to the
station. At the station, Detective Sergeant William
McFarlane took Ms. McKenzie aside and told her that Mary
Ann had been murdered. Ms. McKenzie then gave the police
permission to talk to petitioner.
At 7:20 p.m., the formal interview began with Ms.
McKenzie present. Because petitioner challenges the
knowing and voluntary nature of his waiver of his Fifth and
Sixth Amendment rights, we quote excerpts from the audio
recordings of his interview at some length.2
Detective Stamper: This is a statement of your Miranda
rights. Number One: You have the right
to remain silent, which means you don't
have to talk to us if you don't want to.
Do you understand that one?
Machacek: Yes.
Detective Stamper: Number Two: Anything you say can and
will be used against you in a courtof law.
Do you understand that one?
Machacek: Yes.
Detective Stamper: Number Three: You have the right to
talk to a lawyer and have him present
with you while you are being questioned.
Do you understand that one?
Machacek: Yes.

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4 Machacek v. Hofbauer No. 98-1815
Detective Stamper: Number Four: If you cannot afford to
hire a lawyer, one will be appointed to
represent you before any questioning, if
you wish. Do you understand that?
Machacek: Yes.
Detective Stamper: Number Five: You can decide at any
time to exercise these rights and not
answer any question or make any
statements. Do you understand that?
Machacek: Yes.
Detective Stamper: Directly below is a paragraph that is
called Waiver of Rights. It says, "I have
read the above statement of my rights
and I understand each of these rights
and having these rights in mind, I waive
them and willingly make a statement."
We're not asking you to waive or give up
any of your rights or anything of that
nature. 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 that
because some people can't. What I
would like you to do is read those over
and make sure they read exactly the way
that I read them to you. Make sure you
understand them thoroughly. Then if
you do, I would ask you to sign it on that
line that says, Signature, and your
guardian-mother to sign underneath.
No. 98-1815 Machacek v. Hofbauer 13
4The record shows that Machacek had extensive contacts with the
juvenile justice system and, thus, was not naive about the consequences
of waiving his Fifth and Sixth Amendment rights.
Moran v. Burbine, 475 U.S. 412, 421 (1986) (quoting Fare
v. Michael C., 442 U.S. 707, 725 (1979)). "Whether a waiver
is knowing and intelligent is determined by the particular
facts and circumstances of the case, 'including the
background, experience, and conduct of the accused.'" See
United States v. Gaddy, 894 F.2d 1307, 1312 (11th Cir. 1990)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). After
extensive hearings, the state trial court determined that both
Machacek and his legal guardian made the final decision to
waive his Miranda rights freely and with full understanding.
We agree with the Michigan court. Assuming that
Detective Stamper may have somehow mislead Machacek
about the consequences of signing the waiver card, police did
not treat the signing of the card as a waiver of Machacek's
rights. Rather, after Machacek signed the waiver card,
Detective Fulcher emphasized that Machacek's signature
merely indicated his understanding of his legal rights. After
confirming that Machacek understood his rights, Detective
Fulcher specifically asked Machacek whether he wanted to
make a statement without an attorney being present.
Machacek agreed and admitted his involvement in the brutal
murder of young Mary Ann Hulbert.4
Based on the "totality of the circumstances" surrounding
Machacek's waiver, we find that the Michigan courts'
determination that Machacek knowingly and voluntarily
waived his Miranda rights was not an unreasonable
application of Supreme Court precedent. The audio
recordings of Machacek's interview firmly convince us that
both Machacek and his foster mother knowingly and
intelligently waived his Fifth and Sixth Amendment rights.

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12 Machacek v. Hofbauer No. 98-1815
"unreasonable application" of Supreme Court precedent.
Thus, we must reject petitioner's request for habeas relief
based 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 Detective
Stamper's misleading statements about the significance of
signing a waiver card did not render his waiver of Fifth
Amendment rights invalid. Although we agree that Detective
Stamper's statements were less than appropriate, we find the
Michigan 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's
request for habeas relief.
In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme
Court held that the privilege against self-incrimination
protects individuals from "informal compulsion exerted by
law-enforcement officers during in-custody questioning."
Id. at 461. Unless a suspect knowingly, voluntarily, and
intelligently waives these rights, a court will exclude
statements made as a result of an involuntary waiver. See
Pennsylvania v. Muniz, 496 U.S. 582, 589 (1990). In
determining 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 free
and deliberate choice rather than intimidation, coercion
or deception. Second, the waiver must have been made
with 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 investigation" reveal both an uncoerced
choice and the requisite level of comprehension may a
court properly conclude that the Miranda rights have
been waived.
No. 98-1815 Machacek v. Hofbauer 5
Your signature is not an admission of
anything. It is not waiving anything. It
merely indicates that you have been read
your rights and you do understand each
one of them.
Mrs. McKenzie: Should . . . We're going to have to get a
lawyer then and should his mother be
notified?
Detective Fulcher: Are you his legal guardian?
Ms. McKenzie: Right now, yes.
Detective Fulcher: Are you indicating that you don't want
him to talk to us without an attorney
being present?
Ms. McKenzie: Well, what do you suggest? I've never
been through this.
Detective Fulcher: It's not up to me. It is one-hundred
percent yours and Chris' decision.
. . .
Ms. McKenzie: Well, does he have to sign that before
our lawyer is here?
Detective Fulcher: He doesn't have to sign anything. We
are asking him to sign it, if he
understands his rights.
Questioning stopped at this point and Ms. McKenzie left
the room to talk to her ex-husband. Ms. McKenzie returned
to the room approximately five minutes later and the
following conversation took place.
Detective Fulcher: Chris, we have talked about your rights.
You have signed the form and you are
indicating that you do understand your

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6 Machacek v. Hofbauer No. 98-1815
rights and you would like to talk to us
about the death of Mary.
Machacek: Yes.
Detective Fulcher: And Mrs. McKenzie, do you understand
his rights and you are allowing him to
talk 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 knows
and you can take a lie detector's test and
that would maybe clear it.
Detective Fulcher: Do you feel that we have threatened or
intimidated you in any way to get you to
talk 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 before
continuing with the following conversation.
Detective Fulcher: Chris, I would like to refresh you
memory about the rights. The blue form
that you signed – I will lay it in front of
you. It indicates all those rights. Do
you recall reading me those rights to you
a short time ago or Detective Stamper, I
should say, reading the rights to you?
Machacek: Yes.
Detective Fulcher: Do you still understand your rights?
No. 98-1815 Machacek v. Hofbauer 11
1522. Thus, even if we believe that a state court incorrectly
applied federal law, we must refuse to issue the writ of habeas
corpus if we find that the state court's decision was a
reasonable one. Given the facts of this case, we have little
trouble deciding that the Michigan court's decision was
"objectively reasonable" in light of clearly established federal
law.
Machacek argues that Ms. McKenzie, his legal guardian,
invoked his right to counsel by making the following remark,
"Should . . . We're going to have to get a lawyer then and
should his mother be notified?" In light of the Supreme
Court's decision in Davis v. United States, 512 U.S. 452
(1994), we reject petitioner's argument. In Davis, the Court
held that a suspect "must unambiguously request counsel."
Id. at 459. Thus, "if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood
only that the suspect might be invoking the right to counsel,
our precedents do not require the cessation of questioning."
Id. The Court ultimately held that the suspect's statement,
"Maybe I should talk to a lawyer," was equivocal, and, thus,
police were allowed to continue questioning the suspect.
Id. at 462.
In light of Davis, the Michigan court's finding that Ms.
McKenzie did not invoke the right to counsel was
"objectively reasonable." Her equivocal statement began and
ended as if she were asking the police a question. After Ms.
McKenzie ambiguously suggested that she might want
counsel present during questioning, police immediately
stopped questioning Machacek and asked Ms. McKenzie to
clarify whether she was invoking Machacek's right to counsel.
Ms. McKenzie's response indicated that she was very
uncertain about whether she wanted counsel present. Before
continuing the questioning, police allowed Ms. McKenzie to
leave the room and discuss the matter with her ex-husband.
Upon her return, she unequivocally consented to proceeding
without having a lawyer present. Given the facts of this case,
we cannot say the state trial court's determination was an

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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 of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court
unless the adjudication of the claim–
(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 . . . .
28 U.S.C. § 2254(d). After we heard oral arguments in this
case, the Supreme Court resolved some confusion among the
circuits by holding that section 2254(d)'s "contrary to" and
"unreasonable application" clauses have independent
meanings. 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 a
conclusion opposite to that reached by the Supreme Court on
a question of law. See id. A state court decision can also be
"contrary to" Supreme Court precedent if the state court
confronts facts that are materially indistinguishable from a
relevant Supreme Court precedent and arrives at an opposite
result. See id. Because none of Machacek's claims implicate
the "contrary to" clause of this provision, we will evaluate his
claims under the "unreasonable application" prong.
In Williams, the Court held that an "unreasonable
application" of clearly established federal law established by
Supreme Court precedent occurs if "the state court identifies
the correct governing legal rule from [the Supreme Court's]
cases but unreasonably applies it to the facts of the particular
state prisoner's case." Id. at 1520. Thus, "a federal habeas
court making the 'unreasonable application' inquiry should ask
whether the state court's application of clearly established
federal law was objectively reasonable." Id. Although the
Court failed to specifically define "objectively reasonable," it
observed that "an unreasonable application of federal law is
different than an incorrect application of federal law." Id. at
No. 98-1815 Machacek v. Hofbauer 7
3A Walker hearing is a hearing held in the Michigan state courts,
outside the presence of the jury, to determine whether a confession was
voluntarily made. See People v. Walker, 374 Mich. 331 (1965).
Machacek: Yes.
Detective Fulcher: Having those rights in mind, do you still
want to make a statement without your
attorney being present now?
Machacek: Yes.
After agreeing to make a statement to the officers,
Machacek described the murder of Mary Ann, implicating
Steven Stamper as the one who pulled the trigger. Machacek
told police how the two boys took Mary Ann to the woods,
blindfolded her, placed her up against a tree, and shot her
numerous times as she ran trying to escape from her
abductors. After shooting and killing the young girl,
Machacek helped Stamper drag Mary Ann's body through the
woods and dump her in some bushes.
II. Procedural History
In determining whether to exclude Machacek's
incriminating statements, the Michigan trial court held a
Walker hearing3 and listened to the tape recordings of
Machacek's interview. The trial court concluded:
In this case, Defendant Machacek was informed of his
Miranda rights in the presence of his foster mother,
Diana McKenzie. It is clear that he and she understood
those rights. She was given the opportunity to discuss
these rights and whether or not an attorney should be
called with her ex-husband. During this time Defendant
Machacek was not being questioned and could reflect on
whether he wanted to proceed. The record shows that the
final decision was made freely with full understanding.

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8 Machacek v. Hofbauer No. 98-1815
On appeal, the Michigan Court of Appeals affirmed the trial
court's ruling, finding that:
Our review of the record, which includes audio tapes
made without the knowledge of the officers questioning
defendant, leaves us convinced that defendant's statement
was voluntarily made, that his rights were scrupulously
honored, and that both he and his foster mother
knowingly and intelligently waived his right to remain
silent and to have an attorney present during the
questioning. We therefore find the remainder of
defendant's claims regarding the admissibility of his
statement to be without merit.
On September 14, 1988, a jury convicted Machacek of first
degree murder. He was sentenced to a mandatory life
sentence without possibility of parole. On April 4, 1989,
Machacek filed a claim of appeal with the Michigan Court of
Appeals challenging the trial court's refusal to suppress the
incriminating statement he made to police on January 7, 1987.
Machacek also appealed the trial court's finding that officers
had probable cause to believe that he was guilty of murder.
On February 17, 1993, the Michigan Court of Appeals
affirmed Machacek's conviction. The Michigan Supreme
Court denied his application for leave to appeal the appellate
court's decision.
On April 21, 1997, Machacek filed for a writ of habeas
corpus with the United States District Court for the Eastern
District of Michigan, arguing that the Michigan court erred in
allowing an incriminating statement obtained in violation of
his Fourth, Fifth and Sixth Amendment rights to be
introduced into evidence at trial. On June 30, 1998, the
district court denied his petition for a writ of habeas corpus.
This appeal followed. For reasons to be discussed, we affirm
the district court's ruling in its entirety.
No. 98-1815 Machacek v. Hofbauer 9
III. Stone v. Powell Bars Petitioner's Fourth Amendment
Claim
Petitioner's Fourth Amendment claim is not reviewable. A
habeas petitioner may not seek habeas relief on a claim of
illegal arrest if he had a full and fair opportunity to raise the
claim in state court and presentation of the claim was not
thwarted by any failure of the state's corrective processes. See
Stone v. Powell, 428 U.S. 465, 494-95 (1976). In Riley
v.Gray, 674 F.2d 522 (6th Cir. 1982), we set forth two distinct
inquiries a court must perform when determining whether a
petitioner may raise a claim of illegal arrest in a habeas
action. First, the "court must determine whether the state
procedural mechanism, in the abstract, presents the
opportunity to raise a fourth amendment claim. Second, the
court must determine whether presentation of the claim was
in fact frustrated because of a failure of that mechanism." Id.
at 526. Because Machacek concedes that Michigan has a
procedural mechanism which presents an adequate
opportunity to raise his Fourth Amendment claims, he must
establish that a failure of that procedural mechanism
somehow prevented him from litigating his claims.
In this case, the record reflects that petitioner was able to
present his Fourth Amendment claims to the Michigan courts
and that these claims were carefully considered and rejected
at the trial level and on appeal. Machacek may be
disappointed with his inability to persuade the Michigan
courts that his statement was the product of an illegal arrest,
but the record clearly shows that he received all the process he
was due. Accordingly, any claims concerning the validity of
his arrest are not cognizable on habeas review under the
doctrine of Stone v. Powell.
IV. Failure To Invoke Right To Counsel
Machacek filed his petition after the effective date of the
Antiterrorism and Effective Death Penalty Act (AEDPA), 28
U.S.C. § 2254(d). Thus, the district court's review was
limited to the standards of review set out in the AEDPA as
follows:

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