Robert Henry Ketchings Jr. v. ANDREW JACKSON, Warden

*The Honorable Thomas B. Russell, United States District Judge for
the Western District of Kentucky, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0112P (6th Cir.)
File Name: 04a0112p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT HENRY KETCHINGS
JR.,
Petitioner-Appellee,
v.
ANDREW JACKSON, Warden,
Respondent-Appellant.
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No. 03-1054
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-73141—Nancy G. Edmunds, District Judge.
Argued: March 17, 2004
Decided and Filed: April 19, 2004
Before: KRUPANSKY and GILMAN, Circuit Judges;
RUSSELL, District Judge.*
2 Ketchings v. Jackson No. 03-1054
_________________
COUNSEL
ARGUED: Debra M. Gagliardi, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
Phillip D. Comorski, Detroit, Michigan, for Appellee.
ON BRIEF: Debra M. Gagliardi, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellant.
Gerald Lorence, Detroit, Michigan, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Robert Henry
Ketchings Jr. was tried by a jury in a Michigan state court and
convicted of second-degree murder, assault with intent to
inflict great bodily harm less than murder, intentional
discharge of a firearm at a dwelling, and the use of a firearm
in a felony. The charges arose from Ketchings’s involvement
in a drive-by shooting in Detroit. After exhausting his state-
court remedies, Ketchings petitioned the district court for a
writ of habeas corpus. He argued, among other things, that
the length of his sentence was unlawfully extended because
of his refusal to admit that he was guilty of the offenses for
which he was convicted. Ketchings contended that his
sentence was therefore imposed in violation of his right
against self-incrimination, a right enshrined in the Fifth
Amendment to the United States Constitution.
The district court concluded that the state court had
unreasonably applied the relevant holdings of the United
States Supreme Court regarding the Fifth Amendment. It
therefore granted a conditional writ of habeas corpus, to
become effective unless Ketchings is properly resentenced by
another state trial judge. Michigan now appeals. For the

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No. 03-1054 Ketchings v. Jackson 3
reasons set forth below, we AFFIRM the judgment of the
district court.
I. BACKGROUND
A summation of the material facts is provided by the
Michigan Court of Appeals:
At trial, the evidence established that defendant’s
friend had been robbed the night before the drive-by
shooting in question. The next day, defendant, along
with three other persons, sought revenge for the robbery.
They set out in a car in search of “Rick,” the alleged
robber. Defendant was armed with a .380 automatic and
the other persons in the vehicle were likewise armed with
an AK-47 and a 9 millimeter semi-automatic pistol.
They stopped in front of a house looking for Rick, and
unable to find him, emptied a barrage of gunfire at the
house, outside of which children were playing. Although
testimony at trial indicated that defendant’s gun jammed,
witnesses testified that defendant raised himself out of
the driver’s side window of the car as he fired at the
house. Spent shell casings were later found at the scene
belonging to both defendant’s .380 automatic and the
codefendant’s 9 millimeter weapon. A nine-year-old girl
who was playing outside of the house was shot and killed
as a result of the gunfire.
People v. Ketchings, 1999 WL 33437836, at * 3 (Mich. App.,
Aug. 20, 1999) (per curiam) (unpublished). The drive-by
shooting took place on October 29, 1994. Ketchings was 19
years old at the time. The forensic evidence established that
the victim was killed by a 9 millimeter bullet, which did not
come from the gun used by Ketchings.
On April 30, 1997, Ketchings was convicted on a number
of charges arising out of his involvement in the drive-by
shooting. He was sentenced to concurrent terms of
imprisonment of 40 to 80 years for second-degree murder, 5
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to 10 years for assault, and 2 to 4 years for the discharge of a
firearm, and to a consecutive 2-year term for using a firearm
to commit a felony. The sentence imposed on the second-
degree murder count was nearly twice the maximum
recommended by the Michigan Sentencing Guidelines, which
establishes a relevant range of 10 to 25 years’ imprisonment.
In his appeal to the Michigan Court of Appeals, the last
court in Michigan to address the merits of his case, Ketchings
presented the following six claims:
1. that the trial court abused its discretion in admitting
other-acts evidence;
2. that the trial court erred in failing to instruct the jury
on the cognate lesser included offenses of voluntary and
involuntary manslaughter and careless, reckless, and
negligent use of a firearm with death resulting;
3. that the trial court abused its discretion when it
denied Ketchings’s motion for a mistrial;
4. that Ketchings was denied his right to a speedy trial;
5. that the trial court improperly took Ketchings’s
failure to admit guilt into account at sentencing;
6. that his sentence of 40 to 80 years for second-degree
murder violates the principle of proportionality.
The Michigan Court of Appeals rejected all six claims.
(Although the appellate court found that the trial court had
erred when it admitted into evidence certain other bad acts,
this error was determined to be harmless.)
Ketchings sought habeas relief in the district court after
exhausting his state-court remedies. In a 51-page opinion, the
district court denied habeas relief with respect to all but the
fifth of Ketchings’s claims: that the trial court improperly
took Ketchings’s failure to admit guilt into account at

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No. 03-1054 Ketchings v. Jackson 5
sentencing in violation of his Fifth Amendment rights. The
district court concluded that the Michigan Court of Appeals’s
application of United States Supreme Court precedent in
evaluating Ketchings’s fifth claim was objectively
unreasonable. Ketchings’s petition for a writ of habeas
corpus was therefore conditionally granted, subject to an
appropriate resentencing by a state trial judge other than the
one who originally imposed the sentence. The state appeals.
II. ANALYSIS
A. Standard of review
Ketchings filed his petition for a writ of habeas corpus after
the effective date of the Antiterrorism and Effective Death
Penalty Act of 1996, principally codified at 28 U.S.C.
§ 2254(d). Habeas relief may be granted only if the state
court’s decision either (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; or (2) 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.”
28 U.S.C. § 2254(d)(1)-(2).
The Supreme Court explained these concepts in Williams
v. Taylor, 529 U.S. 362, 412-13 (2000):
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme
Court] on a question of law or if the state court decides
a case differently than [the Supreme Court] has on a set
of materially indistinguishable facts. Under the
“unreasonable application” clause, a federal habeas court
may grant the writ if the state court identifies the correct
governing legal principle from [the Supreme Court’s]
decisions but unreasonably applies that principle to the
facts of the prisoner’s case.
6 Ketchings v. Jackson No. 03-1054
State-court findings of fact must be accepted unless
rebutted by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). We review the district court’s legal conclusions
de novo. Hudson v. Jones, 315 F.3d 212, 215 (6th Cir. 2003).
B. The state court’s decision involved an unreasonable
application of Supreme Court Precedent
The Michigan Court of Appeals’s entire discussion of
Ketchings’s Fifth Amendment claim is contained in the
following paragraph:
Defendant’s next claim of error on appeal is that the
trial court improperly took defendant’s failure to admit
guilt into account at sentencing. We disagree. A
sentencing court cannot, in whole or in part, base its
sentence on a defendant’s refusal to admit guilt. People
v. Yennior, 399 Mich. 892; 282 NW2d 920 (1977). See
also People v. Adams, 430 Mich. 679, 687, n 6; 425
NW2d 437 (1988). However, evidence of a lack of
remorse may be considered in determining an
individual’s potential for rehabilitation. People v. Wesley,
428 Mich. 708, 711; 411 NW2d 159 (1987) (opinion of
Archer, J.). As previously explained by this Court in
People v. Calabro, 166 Mich.App 389, 396; 419 NW2d
791 (1988), “[A] defendant’s lack of remorse may be
considered by a court in imposing sentence. It is
undeniable that when a defendant is remorseful, it is
urged in mitigation by him or on his behalf, and it is
healthful to ventilate the process from both perspectives
rather than to sanction the use in amelioration while
condemning it in aggravation.” See also People v.
Houston, 448 Mich. 312, 323; 532 NW2d 508 (1995). In
this case, it is clear from our review of the full comments
made by the sentencing judge that the court was merely
addressing the factor of remorsefulness in the context of
defendant’s rehabilitative potential and avoidance of
responsibility for his actions. There is no indication in
the record that defendant’s sentence was improperly

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No. 03-1054 Ketchings v. Jackson 7
influenced by his failure to admit guilt or that the court
was attempting to punish defendant for exercising his
constitutional right to maintain his innocence. Wesley,
supra; People v. Stewart (On Remand), 219 Mich.App
38, 44; 555 NW2d 715 (1996); People v. Drayton, 168
Mich.App 174, 178; 423 NW2d 606 (1988). We
therefore find no error.
People v. Ketchings, 1999 WL 33437836, at * 7 (Mich. App.,
Aug. 20, 1999).
The Supreme Court has held that a defendant’s Fifth
Amendment right against self-incrimination “is fulfilled only
when a criminal defendant is guaranteed the right ‘to remain
silent unless he chooses to speak in the unfettered exercise of
his own will, and to suffer no penalty . . . for such silence.’”
Estelle v. Smith, 451 U.S. 454, 468 (1981) (quoting Malloy v.
Hogan, 378 U.S. 1, 8 (1964)). This guarantee extends to the
sentencing phase of the trial. Mitchell v. United States, 526
U.S. 314, 328-29 (1999) (“In accordance with the text of the
Fifth Amendment, we must accord the privilege the same
protection in the sentencing phase of ‘any criminal case’ as
that which is due in the trial phase of the same case.”).
In its brief, the state “does not dispute . . . that a petitioner
retains the privilege against compelled self-incrimination
through the sentencing phase of criminal proceedings.” The
state instead argues that the “trial court never attempted to get
Ketchings to admit his guilt.” Indeed, the Michigan Court of
Appeals found “no indication in the record that defendant’s
sentence was improperly influenced by his failure to admit
guilt or that the court was attempting to punish defendant for
exercising his constitutional right to maintain his innocence.”
Ketchings, 1999 WL, at * 7.
A state court’s findings of fact are binding in a federal
habeas proceeding unless they are rebutted by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1). The record in
this case provides such clear and convincing evidence. An
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objective review of the transcript makes clear that the
sentencing judge was not, as the Michigan Court of Appeals
found, “merely addressing the factor of remorsefulness in the
context of defendant’s rehabilitative potential . . . .”
Ketchings, 1999 WL, at * 7. To the contrary, the relevant
portion of the sentencing-hearing transcript reads as follows:
THE COURT: The first thing I have to say is that you
indicate to the Court that you’re not guilty. And as your
lawyer will tell you and I’ll tell you one of the things the
Judge considers in sentencing, in determining what the
sentence should be is whether a person can be
rehabilitated. But if you don’t think you did anything
wrong to start with and you don’t accept what a jury says
–
DEFENDANT KETCHINGS: But –
THE COURT: I’m just giving you my thinking now.
Can I talk? I didn’t interrupt you.
DEFENDANT KETCHINGS: I understand.
THE COURT: How can you be rehabilitated? How
can you ask me to put you back in the community? How
do I know you’re not going to go back out and do
something else like this and say, hey, judge, I didn’t do
it. I wasn’t part of it.
We have and I don’t know if you’re ever heard me say
this, but the jury system, you, know, sometimes I like it
and sometimes I don’t. But we’re one of the very few
countries in the world that has a jury, a judge of their
peers. They’re people like you. They judge you. And
I’m sort of upset that you don’t acknowledge that you did
something wrong at this point.
. . . .

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No. 03-1054 Ketchings v. Jackson 9
You see, to me, young people like you the key to
rehabilitating is say, hey, I did something wrong. I’m
sorry, man. I was in the car, it went over and shot an
innocent child along with other people.
. . . .
All right. It’s an awesome power of a judge to
sentence somebody. . . . And it’s a heavy responsibility
and it’s not what I particularly like, but it has to be done
and it has to be done to punish and protect society, to
rehabilitate you which is why I said the statement I did in
the beginning. One of the issues we discussed here is
can you be rehabilitated? And you can’t be rehabilitated
if you say you didn’t do anything. You were here for this
trial.
As the district court found, “the [sentencing] judge referred
negatively directly and indirectly to [Ketchings’s] continued
assertion of his belief in his innocence and implied that
[Ketchings] would be sentenced more leniently if he accepted
the jury’s verdict, that is, if he gave up his Fifth Amendment
privilege to . . . refuse to admit guilt.” Further contradicting
the Michigan Court of Appeals’s characterization that the
sentencing judge was concerned only with Ketchings’s lack
of remorse and not with his unwillingness to admit guilt is the
fact that Ketchings made a lengthy statement expressing his
remorse immediately prior to the sentencing judge’s
comments quoted above. The relevant portion of the
sentencing-hearing transcript reads as follows:
THE COURT: Okay. We’ve heard from everybody
except you, Mr. Ketchings. Is there anything you want
to tell me before the Court imposes sentence?
DEFENDANT KETCHINGS: Yes. I do have remorse
for the family. I do like to apologize for the things that
had happened and I am truly sorry. But I still feel that
I’m not guilty of this crime that I’ve been charged
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with. . . . And the prosecutor, she don’t know me. She
really don’t. She can’t even see what type of character I
am in the world. It’s just a bad situation that did happen.
I didn’t, you know --
THE COURT: Don’t use that expression.
DEFENDANT KETCHINGS: I’m sorry.
Everybody saying I’m just this awful person that I’m
really not. And I’m quite sure if she knew me in the
world, she would be part of the persons who said I was
always a true friend to her and to the victim’s family.
And I feel that giving me 20, 40 years of incarceration
that’s not going to bring the family members back or to
pay back with my heart. And I can’t feel how the family
members feel for losing their child, but I can sympathize
because I would hate for that to happen to my son. And
I can only imagine how they feel. I know that she’s truly
upset, you know.
When this crime happened, my son was just born three
days prior to this case. And I was very truly upset, you
know, to find out what had happened. And I just looked
at my son, and, you know, tears came from my eyes.
And I do, really do feel in my heart that I’m truly sorry
for the family members at what happened. And, you
know, I do have a strong family background even though
I made some wrong decisions in my life, you know. And
my parents always taught me to be respectful to others,
you.
But, you know, I just can’t say nothing more. I’m
truly sorry.
The fact that the sentencing judge criticized Ketchings for
his failure to admit guilt even after he made the above-quoted
remarks clearly contradicts the Michigan Court of Appeals’s
finding that the sentencing judge concerned himself only with

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No. 03-1054 Ketchings v. Jackson 11
remorsefulness and not with the admission of guilt. In sum,
whether evaluated as “an unreasonable application of
[] clearly established Federal law,” 28 U.S.C. § 2254(d)(1), or
as “an unreasonable determination of the facts in light of the
evidence,” 28 U.S.C. § 2254(d)(2), the Michigan Court of
Appeal’s opinion does not withstand constitutional scrutiny.
The state, as a final point, raises the possibility that on
remand a sentence of 40 to 80 years for second-degree murder
might again be imposed based on other factors. That
outcome, although possible, is far from certain in light of the
Michigan Sentencing Guidelines. In addition, such a
possibility does not affect the appropriateness of resentencing
before another judge as the remedy for the Fifth Amendment
violation that occurred in this case.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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