Richard Shaneberger v. Kurt Jones

*The Honorable John R. Adams, United States District Judge for the Northern District of Ohio,
sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0207p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
RICHARD SHANEBERGER ,
Petitioner-Appellant,
v.
KURT J ONES ,
Respondent-Appellee.
X---->
,----
N
No. 07-2211
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 03-74452—Arthur J. Tarnow, District Judge.
Argued: March 3, 2010
Decided and Filed: July 16, 2010
Before: BOGGS and NORRIS, Circuit Judges; ADAMS, District Judge.*
_________________
COUNSEL
ARGUED: Michael C. Merrick, DINSMORE & SHOHL LLP, Louisville, Kentucky,
for Appellant. Andrew L. Shirvell, OFFICE OF THE MICHIGAN ATTORNEY
GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Michael C. Merrick,
DINSMORE & SHOHL LLP, Louisville, Kentucky, Michael J. Newman, DINSMORE
& SHOHL LLP, Cincinnati, Ohio, for Appellant. Brad H. Beaver, OFFICE OF THE
MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
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No. 07-2211 Shaneberger v. Jones Page 2
_________________
OPINION
_________________
ADAMS, District Judge. Petitioner Richard Shaneberger appeals from the
district court’s denial of his petition for habeas corpus filed pursuant to 28 U.S.C.
§ 2254. Shaneberger contends that the district court erred when it found that he failed
to demonstrate ineffective assistance of appellate counsel. We affirm.
I. FACTUAL BACKGROUND
On December 11, 1996, Shaneberger was convicted of felony murder, aiding and
abetting armed robbery, conspiracy to commit armed robbery, and aiding and abetting
kidnapping. Prior to his conviction, Shaneberger moved to suppress oral statements that
he made on December 30, 1995. Shaneberger contended that his statements were the
result of an interrogation conducted in violation of his right to counsel. The following
facts have been developed in support of this argument.
Detective Richard Rau was placed in charge of the investigation of the shooting
death of John East. On December 29, 1995, Detective Rau interviewed Shaneberger’s
co-defendant James Rowe. During that interview, Rowe admitted to being involved in
the robbery with Justin Gillette and a man named “Rick.” After further interrogation,
Detective Rau came to the conclusion that “Rick” referred to Shaneberger. Armed with
this information, Detective Rau returned the local police department the next day,
intending to interview Shaneberger. Unbeknownst to the detective, Shaneberger was
already present and being interviewed at the department on unrelated charges. Detective
Rau entered the interview room just as Shaneberger was receiving his Miranda
warnings. At that time, Shaneberger indicated that he wished to speak to his father
before answering questions and that his father would make any decision about obtaining
him an attorney. The detective conducting the questioning ended the interview at that
point, apparently concluding that Shaneberger had invoked his right to counsel.
Detective Rau, however, then made a statement to Shaneberger:

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No. 07-2211 Shaneberger v. Jones Page 3
I told Shaneberger that… I don’t mind laying my cards on the table. I
asked him not to say anything but listen to what I had to say. I told him
that I had already talked to his partner Rowe, and Rowe [had implicated
him in the robbery].
Detective Rau then immediately left the jail without offering Shaneberger an opportunity
to respond to his statement.
Sometime after Detective Rau left the jail, Trooper Michael Gutierrez was
instructed to transport Shaneberger to the county jail. From the record before this court,
it is unclear how much time elapsed between Detective Rau’s statement and
Shaneberger’s subsequent transport to the county jail. However, shortly after the trip
began, Trooper Gutierrez noticed that Shaneberger was crying and appeared
uncomfortable. Believing that Shaneberger’s handcuffs were too tight, Trooper
Gutierrez asked him whether he was “okay.” Shaneberger responded that he needed to
get something off his chest. Trooper Gutierrez then once again read Shaneberger his
Miranda rights and asked whether he understood them. Shaneberger responded in the
affirmative and indicated a further desire to talk. During the trip, Shaneberger told
Trooper Gutierrez, “Well, I didn’t kill anybody, I'm not a killer, I just want you to know
that.” Trooper Gutierrez continued to encourage him to talk during the trip and upon
arriving at the county jail, Shaneberger gave a full confession, implicating himself and
identifying Gillette as the individual that shot and killed East.
Prior to trial, Shaneberger moved to suppress his custodial statements. The trial
court denied the motion. In addition, Shaneberger’s counsel opposed the State’s motion
to consolidate his trial with Rowe’s trial. The motion was granted over the objection,
and Shaneberger’s counsel never sought thereafter to sever the trials. As a result,
Shaneberger was tried jointly with Rowe, and Rowe’s custodial statements were
introduced against Shaneberger. Shaneberger was convicted by a jury of the counts
detailed above.
On appeal, Shaneberger’s appellate counsel did not challenge the trial court’s
ruling on his motion to suppress, nor did appellate counsel assert that trial counsel was
ineffective for failing to move to sever the trials. Appellate counsel instead raised seven

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No. 07-2211 Shaneberger v. Jones Page 4
other issues, including challenges to the sufficiency of the evidence, the admission of
other acts evidence, the trial court’s ruling on another, distinct motion to suppress, and
alleged prosecutorial misconduct. Each claim was rejected and Shaneberger’s
convictions were affirmed. Following the Michigan Supreme Court’s refusal to accept
his discretionary appeal, Shaneberger moved for relief from judgment in the trial court.
In that motion, Shaneberger raised numerous issues, including the two issues presented
before this court. Relief with respect to that motion was denied at all levels of state
review.
On November 4, 2003, Shaneberger filed his § 2254 petition in the district court.
The petition was denied on September 6, 2007, and Shaneberger timely appealed.
II. STANDARD OF REVIEW
We conduct a de novo review of the district court’s decision to grant or deny a
habeas petition. Murphy v. Ohio, 551 F.3d 485, 493 (6th Cir. 2009). Because
Shaneberger filed his habeas petition after the effective date of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”),
we may grant the writ “with respect to a ‘claim that was adjudicated on the merits in
state court proceedings’ if the state court's decision ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.’” Murphy, 551 F.3d at 493 (quoting 28 U.S.C.
§ 2254(d)(1)). “A state-court decision is contrary to clearly established federal law ‘if
the state court applies a rule that contradicts the governing law set forth in [the Supreme
Court’s] cases’ or ‘if the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a
result different from [that] precedent.’” Id. at 493-94 (quoting Williams v. Taylor, 529
U.S. 362, 405 (2000)) (alterations sic). “A state-court decision is an unreasonable
application of clearly established federal law if it correctly identifies the governing legal
rule but applies it unreasonably to the facts of a particular prisoner’s case, or if it either
unreasonably extends or unreasonably refuses to extend a legal principle from Supreme
Court precedent to a new context.” Id. at 494 (quotation marks and citations omitted).

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No. 07-2211 Shaneberger v. Jones Page 5
Both of Shaneberger’s claims turn upon his assertion that he received ineffective
assistance from his appellate counsel. The Supreme Court has held that “the
Constitution guarantees criminal defendants only a fair trial and a competent attorney.
It does not insure that defense counsel will recognize and raise every conceivable
constitutional claim.” Engle v. Isaac, 456 U.S. 107, 134, (1982). Accordingly,
ineffective assistance of appellate counsel claims are governed by the same Strickland
standard as claims of ineffective assistance of trial counsel. See Smith v. Robbins, 528
U.S. 259, 285 (2000). To prevail, Shaneberger must show that his counsel’s
performance was deficient and that he was prejudiced as a result. Strickland v.
Washington, 466 U.S. 668, 687 (1984). To show prejudice, Shaneberger must
demonstrate that, but for counsel’s poor performance, “there is a reasonable probability”
the result of his appeal would have been different. Id. at 694. Appellate counsel cannot
be found to be ineffective for “failure to raise an issue that lacks merit.” Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Furthermore, the Strickland analysis “does
not require an attorney to raise every non-frivolous issue on appeal.” Caver v. Straub,
349 F.3d 340, 348-49 (6th Cir. 2003).
III. LEGAL ANALYSIS
A. Motion to Suppress
Shaneberger asserts that his appellate counsel was ineffective for failing to
challenge the trial court’s denial of his motion to suppress his custodial statements.
Shaneberger’s primary contention focuses on his belief that detectives continued to
interrogate him following his request for counsel, in violation of Edwards v. Arizona,
451 U.S. 477 (1981). Shaneberger argues that the state court was incorrect in its
evaluation of trial counsel’s decision. We hold that the state court did not unreasonably
apply existing law when evaluating this argument.
In Edwards, the Supreme Court held that “an accused … having expressed his
desire to deal with the police only through counsel, is not subject to further interrogation
by the authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or conversations with the police.”

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No. 07-2211 Shaneberger v. Jones Page 6
Id. at 484-85. In denying Shaneberger relief, the state court concluded that he had
initiated further conversations with the police, thereby negating any claim that
Shaneberger’s right to counsel had been violated. We find no error in that conclusion.
The Supreme Court has found that “interrogation” refers “not only to express
questioning, but also to any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446
U.S. 291, 301 (1980) (footnote omitted).
The latter portion of this definition focuses primarily upon the
perceptions of the suspect, rather than the intent of the police. This focus
reflects the fact that the Miranda safeguards were designed to vest a
suspect in custody with an added measure of protection against coercive
police practices, without regard to objective proof of the underlying
intent of the police. A practice that the police should know is reasonably
likely to evoke an incriminating response from a suspect thus amounts to
interrogation. But, since the police surely cannot be held accountable
for the unforeseeable results of their words or actions, the definition of
interrogation can extend only to words or actions on the part of police
officers that they should have known were reasonably likely to elicit an
incriminating response.
Id. at 301-02 (footnotes omitted; emphasis sic). While we do not focus on the intent of
the police, a practice that is subjectively intended to elicit an incriminating response will
very likely produce a finding that the police should have known that such a result would
occur. Id. at 301 n.7. Moreover, two Circuits have concluded that informing the
accused that he had been implicated in a crime by a co-defendant constitutes
interrogation under the Innis definition. See Nelson v. Fulcomer, 911 F.2d 928, 935 (3d
Cir. 1990); United States v. Szymaniak, 934 F.2d 434 (2d Cir. 1991). Neither of these
holdings supports reversal under the facts herein.
In Nelson, the defendant responded immediately to his co-defendant when
confronted with the fact that the co-defendant had confessed. In finding that
interrogation had occurred, the Nelson panel concluded that “[t]he ploy of confronting
a suspect with his or her alleged partner in crime and claiming that the partner has

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No. 07-2211 Shaneberger v. Jones Page 7
confessed is indistinguishable from the types of police practices explicitly criticized in
Miranda and Innis.” Nelson, 911 F.2d at 935. In Szymaniak, the defendant confessed
after being approached three or four times by a government agent and being provided
with information gained from another interrogation. Concluding that a violation had
occurred, the Second Circuit noted as follows: “If Szymaniak’s statement was made
during one of these encounters, it was in response to interrogation outside the presence
of counsel and thus in violation of the fifth amendment in light of his refusal to waive
his right to counsel.” Id. at 439.
There is little doubt that Detective Rau’s actions tread near the line between what
is acceptable and what violates Shaneberger’s right to counsel. Without the specific
portions of the statement discussed below, Detective Rau’s comment would fit squarely
within the category described by Innis as interrogation. However, Detective Rau did not
simply inform Shaneberger that a co-defendant had implicated him in a crime, as
occurred in Nelson. Instead, when Detective Rau informed Shaneberger that Rowe had
implicated him in the crime, Rau specifically informed Shaneberger not to respond to
him. Moreover, Rau left the room immediately after conveying the information to
Shaneberger.
While Detective Rau’s statements create a close question, this court does not sit
in independent judgment of the merits of Shaneberger’s underlying Innis challenge.
Instead, we must examine the merits of his claim under the AEDPA’s “highly
deferential” standard of review that “demands that state-court decisions be given the
benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (quotations omitted).
Based upon the facts detailed herein, we cannot say that the state court unreasonably
applied Strickland and Innis. We find that whether Detective Rau should have known
that his comments would elicit an incriminating response is a close question - a question
that could reasonably be answered by a state court in the negative.
There is no dispute that Detective Rau informed Shaneberger that he had been
implicated by a co-defendant. Detective Rau, however, gave Shaneberger no
opportunity to respond and indeed directed him not to respond. Supporting the state

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No. 07-2211 Shaneberger v. Jones Page 8
court’s decision is the fact that Detective Rau not only permitted no time for a response,
but no response was immediate. The record does not disclose the exact time that elapsed
between Detective Rau’s statement and Shaneberger’s subsequent decision to speak to
another law enforcement official. The record, however, does clearly depict that
Shaneberger chose to speak to an entirely different officer at a different location and
time, and an officer who had no prior knowledge of Detective Rau’s involvement with
Shaneberger. Accordingly, we find that it was not unreasonable for the state court to
conclude that these latter facts took Detective Rau’s statement outside the realm of
interrogation as defined by Innis. That is, it was reasonable to conclude that Detective
Rau would not have known that his statement was likely to elicit an incriminating
response. Based upon this conclusion, we cannot say that the state court was
unreasonable in holding that Shaneberger had failed to demonstrate ineffective
assistance of appellate counsel. This court, therefore, cannot reverse under the highly
deferential AEDPA standard of review.
B. Motion to Sever
Shaneberger’s argument for reversal on this ground is dependent upon a finding
that his statements should have been suppressed. Having concluded that Shaneberger
demonstrated no reversible error in the district court’s decision with respect to the
suppression issue, we adopt the thorough and detailed harmless error analysis of the
district court with respect to the severance issue.
IV. CONCLUSION
For the foregoing reasons, the district court’s denial of the habeas petition is
AFFIRMED.

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