Kevin Mark Abela v. WILLIAM MART IN, Director, Michigan Department of Corrections

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0283P (6th Cir.)
File Name: 04a0283p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KEVIN MARK ABELA,
Petitioner-Appellant,
v.
WILLIAM MART IN, Director,
Michigan Department of
Corrections,
Respondent-Appellee.
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No. 00-2430
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-72095—Robert H. Cleland, District Judge.
Argued: April 21, 2004
Decided and Filed: August 27, 2004
Before: SILER, COLE, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: James Sterling Lawrence, Detroit, Michigan, for
Appellant. William C. Campbell, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: James Sterling Lawrence, Detroit, Michigan,
2 Abela v. Martin No. 00-2430
for Appellant. William C. Campbell, OFFICE OF THE
ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
COLE, J., delivered the opinion of the court, in which
CLAY, J., joined. SILER, J. (pp. 26-27), delivered a separate
opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
R. GUY COLE, JR., Circuit Judge. Petitioner Kevin Mark
Abela, a former Michigan prisoner who was convicted of
manslaughter and carrying a concealed weapon in 1991,
appeals the federal district court’s dismissal of his petition for
a writ of habeas corpus, which he filed pursuant to 28 U.S.C.
§ 2254 on April 26, 1999. Petitioner contends that: (1) his
Fifth Amendment rights were violated when police elicited
statements from him following his request for counsel and
when they interrogated him while he was allegedly
intoxicated, in pain, and on pain medication; (2) his due
process and Sixth Amendment rights were violated because
of prosecutorial misconduct at trial; and (3) he was denied the
effective assistance of both trial and appellate counsel.
Respondent contends that Abela’s claims are barred by
procedural default.
Because we find that Abela’s claims are not barred by
procedural default, and that his Fifth Amendment claim
concerning statements elicited after he invoked his right to
counsel is meritorious, we REVERSE the district court’s
judgment and REMAND to the district court with
instructions to grant the writ of habeas corpus, unless the state
elects to retry Abela within ninety days of the date of this
opinion’s entry.

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No. 00-2430 Abela v. Martin 3
I. BACKGROUND
A. Factual Background
Abela’s convictions stemmed from the stabbing death of
Stanley Underwood at a party in the early morning hours of
May 19, 1990. Abela arrived at a party at the home of Allen
Howard in Rochester Hills, Michigan, sometime during the
evening of May 18. At approximately 1:00 a.m., Abela and
a friend, Ronald Wright, noticed a man, J.J. Sullivan, pushing
a car out of the driveway of the home. Abela confronted
Sullivan and an argument ensued; it turned into a fistfight.
After the fight broke up, Sullivan ran into the house, where he
told his older brother, Jerry, that someone had beaten him up.
A second fight began when Jerry Sullivan and Allen
Howard ran outside to confront Abela. Abela’s nose was
broken in the fight, which ended with Howard holding Abela
down on the ground. Howard promised Abela that he would
release him if he left the party immediately. Abela then left
the party with Wright.
Upon reaching their car, however, Wright realized that he
had forgotten his jacket at the party, and he returned to the
house to retrieve it. Abela waited at the edge of the driveway.
Suddenly, however, several people from the party, including
Stanley Underwood, attacked Abela, knocked him down, and
surrounded him. Abela was kicked and punched in the face
and body. Among the group of attackers was Stanley
Underwood, who, during the course of the brawl, straddled
Abela’s chest. Abela thereupon drew a knife from a sheath on
his belt and stabbed Underwood in the chest and left arm
three times. Underwood died a short time later from the stab
wounds.
Abela fled to a friend’s house, where he called 911 and told
the operator that he had stabbed someone. After meeting the
police back at Howard’s house, Abela was taken to a hospital
emergency room for treatment. While at the emergency
4 Abela v. Martin No. 00-2430
room, but before being treated for his injuries, Oakland
County Police Sergeant Michael McCabe began interrogating
Abela about the events leading up to the stabbing. Abela
responded by stating, “maybe I should talk to an attorney by
the name of William Evans,” and he showed Sergeant
McCabe Evans’s business card. Sergeant McCabe agreed to
call Evans for Abela and left the room, presumably to contact
Evans. Upon returning, McCabe made no mention of Evans,
and proceeded to read Abela his Miranda rights. Abela then
signed a form waiving those rights and gave a statement to
Sergeant McCabe. After being treated at the hospital, Abela
was taken to the police station. He gave another statement
there. In both statements, Abela admitted to stabbing
Underwood, but claimed that he did so in self defense. The
statements were admitted at trial and used by the prosecution
against Abela.
B. Procedural History
Abela was charged with second degree murder and carrying
a concealed weapon. Prior to trial in the Oakland County
Circuit Court, Abela’s counsel filed a motion to dismiss the
concealed weapon charge because the knife was not
concealed – Abela carried it in a sheath attached to the outside
of his belt. The trial judge granted the motion and dismissed
the concealed weapon charge on September 12, 1990. On
November 5, 1990 – outside the fourteen-day time limit
prescribed by Mich. Ct. Rule 2.119(F)(1) – the prosecution
filed a motion for reconsideration of the dismissal. Abela’s
counsel did not object to this motion. On June 3, 1991, the
trial judge granted the prosecution’s motion for
reconsideration and reinstated the concealed weapon charge.
The trial commenced in June 1991. During closing
arguments, the prosecutor presented a hypothetical
conversation between Abela and Ronald Wright. The
prosecutor stated:

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No. 00-2430 Abela v. Martin 5
Do you think when they [Abela and Wright] got back to
that car they were mad as hell? Both of them got shot
down, pretty damn drunk, they are pretty pissed off.
They’ve lost the fight. They’ve been thrown out.
They’ve been humiliated . They’ve been embarrassed.
Not only that, Ron Wright says, “My damn coat’s back
there. Let’s go get it.” [Abela then replied,] “Ronnie,
better take this [Abela’s knife] when we go back. Ain’t
nobody going to kick our ass anymore. Let’s go back.”
This statement is the basis for Abela’s prosecutorial
misconduct claim, which will be discussed below.
Abela was convicted by a jury of voluntary manslaughter
and carrying a concealed weapon on July 24, 1991. He was
sentenced to seven to fifteen years’ imprisonment for the
voluntary manslaughter count, and a concurrent forty months
to five years of imprisonment for carrying a concealed
weapon.
Abela appealed his convictions, raising three issues in the
Michigan Court of Appeals on February 17, 1992. The three
issues were: (1) that his sentence was disproportionate to the
crime; (2) that the trial court erred by reinstating the weapons
charge; and (3) that the trial court erred by allowing the
prosecution to present rebuttal testimony not raised in its
case-in-chief. The Michigan Court of Appeals affirmed
Abela’s conviction and sentence in an unpublished
disposition. People v. Abela, No. 144005 (Mich.Ct.App. July
22, 1994). The Michigan Supreme Court denied Abela’s
delayed application for leave to appeal these issues on March
31, 1995. People v. Abela, 448 Mich. 901, 533 N.W.2d 313
(Mich. 1995).
In August 1996, Abela filed a motion for relief from
judgment in the Oakland County Circuit Court, raising six
claims: (1) that his statement at the hospital was
unconstitutionally elicited and admitted because Sergeant
McCabe ignored Abela’s request for an attorney; (2) that his
6 Abela v. Martin No. 00-2430
statement at the hospital was involuntary because he was
injured, under the influence of alcohol, and on pain
medication at the time of questioning; (3) that the trial court
improperly granted the prosecution’s untimely motion to
reconsider the dismissal of the concealed weapon charge;
(4) that the prosecutor unfairly prejudiced Abela by
presenting witness testimony in his closing argument that was
unsupported by the record; (5) that Abela’s trial counsel
provided ineffective assistance; and (6) that Abela’s appellate
counsel provided ineffective assistance, constituting “good
cause” for Abela’s failure to raise the other claims in his
direct appeal. The motion was denied “for lack of merit on
the grounds presented.” People v. Abela, No. 90-101083
(Oakland County Cir. Ct. Oct. 22, 1996). Abela raised the
same six issues on appeal to the Michigan Court of Appeals,
which likewise denied his petition “for lack of merit in the
grounds presented.” People v. Abela, No. 200930
(Mich.Ct.App. July 22, 1997). On August 9, 1997, Abela
again raised these six issues in his delayed application for
leave to appeal to the Michigan Supreme Court, which denied
his petition in a summary disposition, stating: “Defendant has
failed to meet the burden of establishing entitlement to relief
under M.C.R. 6.508(D). People v. Abela, 457 Mich. 880, 586
N.W.2d 923 (Mich. 1998). On August 3, 1998, Abela filed a
petition for certiorari with the U.S. Supreme Court, which
was denied on October 19, 1998. Abela v. Michigan, 525
U.S. 948 (1998).
Abela was released to parole status on March 16, 1998, and
discharged from parole on March 16, 2000, which terminated
his seven to fifteen year sentence for manslaughter. His three
to five year sentence for carrying a concealed weapon ended
on October 22, 1995. However, it was on April 26, 1999,
before his parole term ended, that Abela petitioned for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, raising most
of the same claims as were in his motion for relief from
judgment (except for his claim that the trial court erred in
reconsidering its dismissal of the concealed weapon charge).
Specifically, Abela asserted that: (1) his statement to police

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No. 00-2430 Abela v. Martin 7
at the hospital was unconstitutionally elicited and admitted
because he had invoked his right to counsel; (2) his statement
at the hospital was involuntary and inadmissible because he
was injured, intoxicated, and on pain medication at the time
of questioning; (3) the prosecutor engaged in misconduct
during closing argument; (4) trial counsel was ineffective for
failing to object to the prosecutor’s untimely motion for
reconsideration; and (5) appellate counsel was ineffective and
that this constitutes “good cause” for any alleged procedural
default of the preceeding claims.
The district court denied the petition for habeas relief on
October 31, 2000. It held that Abela’s claims were not
procedurally defaulted, but that they were without merit. This
Court granted a certificate of appealability on April 20, 2001,
and on October 30, 2002, denied the petition as untimely, and
accordingly, declined to address the merits. Abela v. Martin,
309 F.3d 338 (6th Cir. 2002). The Court then agreed to hear
the case en banc, and in 2003, vacated its prior opinion and
judgment, holding that Abela’s habeas petition was timely.
Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc). The
petition was remanded to this panel for consideration of the
procedural default question and the merits, which we turn to
now.
II. ANALYSIS
A. Jurisdiction and Mootness
We reaffirm our prior determinations concerning both
subject matter jurisdiction and mootness. Abela, 309 F.3d at
343-44. This Court has subject matter jurisdiction over
Abela’s habeas petition, pursuant to 28 U.S.C. § 2254(a),
because Abela was “in custody” at the time he filed the
petition with the district court on April 26, 1999. Jones v.
Cunningham, 371 U.S. 236, 242 (1963) (holding that
petitioner who was on parole was still “in custody” for habeas
purposes). Abela’s release from custody and the subsequent
conclusion of his parole term, after the filing of his habeas
8 Abela v. Martin No. 00-2430
petition, do not render moot his appeal from the district
court’s denial of the petition. He continues to satisfy Article
III’s “case or controversy” requirement because of the
continuing collateral consequences to a wrongful criminal
conviction. Spencer v. Kemna, 523 U.S. 1, 8 (1998).
B. Whether Abela Procedurally Defaulted on the Claims
in His Habeas Petition
Respondent contends that because the claims raised by
Abela in his habeas petition were raised for the first time in
his state post-conviction motion for relief from judgement –
and not on direct appeal – federal review of his claims is
barred by procedural default. It is well-settled that when a
state prisoner has “defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule,
federal habeas review of the claims is barred” unless the
petitioner can show cause for the default and prejudice
because of it, or a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
For the doctrine of procedural default to apply, there must
be a state procedural rule applicable to the petitioner’s claim,
and the petitioner must have failed to comply with that rule.
Warner v. United States, 975 F.2d 1207, 1213-14 (6th Cir.
1992), cert. denied, 507 U.S. 932 (1993). In addition, the
state court must have enforced the state procedural rule to bar
the petitioner’s claim. Specifically, the last state court from
which the petitioner sought review must have invoked the
state procedural rule as a basis for its decision to reject
reviewing the petitioner’s federal claims. Coleman, 501 U.S.
at 729-30. Lastly, the state procedural rule must constitute an
“adequate and independent” state ground on which the state
can rely to foreclose review of a federal constitutional claim.
Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). A state
procedural rule is “adequate” if it is firmly established and
regularly followed at the time it is applied. Williams v. Coyle,
260 F.3d 684, 693 (6th Cir. 2001). A state procedural rule is
an “independent” ground for precluding federal habeas review

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No. 00-2430 Abela v. Martin 9
if the state courts actually relied on the rule to bar the claim
at issue. As this Court has held, “a state procedural rule is an
independent and adequate state ground only if the state court
rendering judgment in the case clearly and expressly stated
that its judgment rested on a procedural bar.” Simpson v.
Sparkman, 94 F.3d 199, 202 (6th Cir. 1996).
Whether a petitioner’s federal habeas claim is barred
because the petitioner procedurally defaulted on the claim in
state court is a question of law we review de novo. Couch v.
Jabe, 951 F.2d 94, 96 (6th Cir. 1991). The last state court
from which Abela sought review, the Michigan Supreme
Court, denied relief in a standard order stating that:
“Defendant has failed to meet the burden of establishing
entitlement to relief under M.C.R. 6.508(D).” People v.
Abela, 457 Mich. 880, 586 N.W.2d 923 (Mich. 1998).
Respondent urges us to construe that order – and the citation
to M.C.R. 6.508(D) – as an invocation of the procedural
default provision set forth in M.C.R. 6.508(D)(3). M.C.R.
6.508(D) broadly pertains to motions for relief from
judgment, and states in relevant part:
(D) Entitlement to Relief. The defendant has the burden
of establishing entitlement to the relief requested. The
court may not grant relief to the defendant if the motion
(1) seeks relief from a judgment of conviction and
sentence that still is subject to challenge on appeal
pursuant to subchapter 7.200 or subchapter 7.300;
(2) alleges grounds for relief which were decided against
the defendant in a prior appeal or proceeding under this
subchapter, unless the defendant establishes that a
retroactive change in the law has undermined the prior
decision;
(3) alleges grounds for relief, other than jurisdictional
defects, which could have been raised on appeal from the
10 Abela v. Martin No. 00-2430
conviction and sentence or in a prior motion under this
subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal
or in the prior motion, and
(b) actual prejudice from the alleged irregularities that
support the claim for relief. . . .
As noted above, our task is to determine whether the state
court “clearly and expressly stated that its judgment rested on
a procedural bar.” Sparkman, 94 F.3d at 202. Here, the
Michigan Supreme Court only referenced M.C.R. 6.508(D),
generally, as the basis for denying Abela leave to appeal the
judgment of the Michigan Court of Appeals. As seen just
above, M.C.R. 6.508(D) states that “[t]he defendant has the
burden of establishing entitlement to the relief requested.”
Although 6.508(D)(1), (2), and (3) list specific procedural
grounds for denying a defendant relief from judgment, these
procedural grounds are not the exclusive grounds for which
a court may deny relief pursuant to M.C.R. 6.508(D). A court
may deny relief from judgment under 6.508(D) for the non-
procedural reason that the defendant simply failed to meet his
burden of “establishing entitlement to the relief requested.”
As such the Michigan Supreme Court’s citation to M.C.R.
6.508(D) in its order denying Abela leave to appeal does not
demonstrate that that court denied him leave to appeal on the
basis of a procedural default, much less on the procedural
ground described in M.C.R. 6.508(D)(3), which Respondent
urges on this Court.
We note that in Simpson v. Jones, 238 F.3d 399 (6th Cir.
2000), the Sixth Circuit held that a statement by the Michigan
Supreme Court that a defendant “failed to ‘meet the burden of
establishing entitlement to relief under M.C.R. 6.508(D)’”
constituted invocation of “an independent and adequate state
procedural rule” sufficient to prevent federal habeas review.
Simpson, 238 F.3d at 407-08. In that case, the petitioner filed
two motions for collateral review in the state court following

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No. 00-2430 Abela v. Martin 11
his direct appeal. The trial court granted partial relief on the
first motion and the petitioner never appealed the adverse
portion of that ruling. The state trial judge explicitly denied
the second motion on procedural grounds, noting that
Simpson raised no issues that had not been previously
addressed by the trial court and the Michigan Court of
Appeals. Id. at 403. In addition, the court briefly addressed
and rejected Simpson’s arguments on the merits. Simpson
then filed an application for leave to appeal to the Michigan
Court of Appeals, raising the same claims he raised in the
second motion for collateral review before the trial court. He
also contested the trial court’s procedural default
determination. The Court of Appeals denied that application
on the basis of M.C.R. 6.508(D). Simpson then applied for
leave to appeal to the Michigan Supreme Court, based on the
same issues he had raised in the Court of Appeals. This
application was denied on the basis of M.C.R. 6.508(D).
Similar procedural facts existed in Burroughs v. Makowski,
282 F.3d 410 (6th Cir. 2002), where the state trial court
denied post-conviction relief both on the merits and on the
ground of procedural default, and subsequently, both the
Michigan Court of Appeals and the Michigan Supreme Court
denied Burroughs’s application for leave to appeal, stating
that he failed to establish “entitlement for relief under M.C.R.
6.508(D).” Burroughs, 282 F.3d at 412.
But the Simpson and Burroughs rationale is inapplicable
here. In our case, the last reasoned state court judgment
before the Michigan Supreme Court’s order – which was the
Michigan Court of Appeals’ decision denying leave to appeal
– was a merits determination. The Court of Appeals stated
that the motion was “DENIED for lack of merit in the
grounds presented.” People v. Abela, No. 200930
(Mich.Ct.App. July, 22, 1997). Similarly, the trial court had
previously denied the motion for post-conviction relief “for
lack of merit on the grounds presented.” People v. Abela, No.
90-101083 (Oakland County Cit. Ct. Oct. 22, 1996). In short,
unlike in Simpson and Burroughs, the state courts below the
12 Abela v. Martin No. 00-2430
supreme court never invoked a procedural bar here, but rather
repeatedly ruled on the merits. The procedural circumstances
in this case are, therefore, materially different from those in
Simpson and Burroughs, where the lower state courts actually
invoked a procedural bar, making it clearer that the Michigan
Supreme Court was also invoking such a bar when it referred
to M.C.R. 6.508(D). But given that all of the lower state
courts adjudicated Abela’s case on the merits, it is not at all
clear that the Michigan Supreme Court’s summary order
relies on a procedural bar, as opposed to the non-procedural
reason that Abela simply failed to meet his burden of
“establishing entitlement to the relief requested.” Indeed,
given the line of prior merits determinations in Abela’s case,
it is just as reasonable to presume that the Michigan Supreme
Court’s reference to M.C.R. 6.508(D) signaled its agreement
with the lower courts’ merits determinations as it is to
presume that the reference signaled, for the first time in this
case, the invocation of a procedural bar.
In short, the procedural facts of Simpson and Burroughs are
distinguishable from our case. The facts in Simpson and
Burroughs inspired greater certainty that the Michigan
Supreme Court actually relied on a procedural bar in
rendering its judgment. No such clarifying indicators are
present here. Moreover, Simpson and Burroughs do not
purport to eviscerate our Circuit’s rule that a state procedural
rule is an “independent and adequate” state ground only if the
state court rendering judgment in the case “clearly and
expressly stated that its judgment rested on a procedural bar.”
Sparkman, 94 F.3d at 202. Simpson and Burroughs did not
hold that we should divine procedural default from any and
all references to M.C.R. 6.508(D) where such default may
actually have occurred, but where the procedural history
raises genuine questions as to the state court’s actual reliance
on a procedural bar. To suggest that those cases did so hold
is to accept that they invert the inquiry into whether federal
review of the habeas claims is permitted. That is, pursuant to
Maupin v. Smith, 785 F.2d 135 (1986), whether the petitioner
actually failed to comply with a procedural rule is only the

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No. 00-2430 Abela v. Martin 13
predicate, not the ultimate, question before us. The ultimate
legal questions are whether the court relied on and expressly
invoked that procedural bar and whether it is an “independent
and adequate” ground for precluding review. See Williams
v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001). If a state court
is slurring its words, our job is not to guess what it might be
saying, but rather to demand that it enunciate more clearly.
Here, because of numerous factors – the Michigan Supreme
Court’s reference only to M.C.R. 6.508(D), the absence of a
clear and express invocation of a procedural bar, and the
plausibility, based on the prior state courts’ merits rulings,
that the Michigan Supreme Court, too, grounded its decision
in a non-procedural reason based on Abela’s failure
to“establish[] entitlement to relief” – we cannot find that
M.C.R. 6.503(D)(3), the state procedural rule urged by
Respondent, was actually relied on by the Michigan Supreme
Court in this case. For the same reasons, we cannot find that
M.C.R. 6.503(D) constitutes an adequate and independent
basis for the state supreme court’s decision here.
Accordingly, we hold that the claims raised by Abela in his
habeas petition were not procedurally defaulted and we turn
now to the merits of the petition.
C. Standard of Review
We review de novo the decision of the district court to deny
habeas relief. Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.
2000). However, federal review of the state court’s decision
is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-32, 110 Stat. 1214
(1996). Pursuant to AEDPA, habeas relief may not be
granted with respect to any claim adjudicated on the merits in
the state court unless the adjudication: “(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
14 Abela v. Martin No. 00-2430
court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). In Williams
v. Taylor, 529 U.S. 362 (2000), the Supreme Court
determined that a state court’s decision is contrary to clearly
established federal law when it fails to consider a rule of law
that is embedded in the Supreme Court’s jurisprudence at the
time the state conviction became final. Williams, 529 U.S. at
380. In defining “clearly established law,” the Supreme Court
held that “rules of law are sufficiently clear for habeas
purposes even when they are expressed in terms of a
generalized standard rather than as a bright-line rule.” Id. at
382. The Williams court further held that a state court
unreasonably applies clearly established Supreme Court
precedent when it correctly identifies the governing legal
principle in the case, but unreasonably applies that principle
to the facts of the defendant’s case. Id. at 413.
D. Abela’s Interrogations by Police and the Trial Court’s
Admission of the Statements
1. Whether Abela’s Statements Were Elicited in
Violation of His Fifth Amendment Right to Counsel
Abela’s first claim concerning his statements is that they
should have been suppressed because they were elicited in
violation of his Fifth Amendment right to counsel.
The Fifth Amendment to the U.S. Constitution guarantees
that “no person . . . shall be compelled in any criminal case to
be a witness against himself.” Although the Fifth
Amendment does not guarantee a right to counsel, in Miranda
v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that
in certain pretrial stages – namely, custodial interrogation –
the privilege against self–incrimination includes an implied
right to counsel. This right is triggered when a suspect is
interrogated while “in custody” or “otherwise deprived of his
freedom in any significant way.” Miranda, 384 U.S. at 444;
California v. Beheler, 463 U.S. 1121, 1126 (1983) (holding
that suspect’s voluntary appearance and departure at police
station for questioning was not custodial interrogation). The

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No. 00-2430 Abela v. Martin 15
Supreme Court has broadly defined “interrogation” as any
police questioning of a suspect in custody “reasonably likely
to elicit an incriminating response.” Rhode Island v. Innis,
446 U.S. 291, 301 n.7, 302, n.8 (1980).
In Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), the
Supreme Court established a bright- line rule that once a
suspect is in custody and invokes the right to counsel, law
enforcement may not further interrogate him until counsel has
been made available, or unless the suspect initiates further
conversations or exchanges with the police. To trigger the
Edwards rule, the suspect’s invocation of the right to counsel
must be clear and unambiguous. Davis v. United States, 512
U.S. 452, 459 (1994). “[I]f 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,”
then cessation of questioning is not required. Id.
Here, the parties do not dispute that Abela was being
subject to custodial interrogation at the hospital when he
expressed a desire to speak to his attorney, William Evans,
and then showed Sergeant McCabe Evans’s business card.
Although, at that point, Abela had not yet been read his
Miranda warnings, the Fifth Amendment’s implied right to
counsel was triggered because Abela was being subjected to
custodial interrogation by Sergeant McCabe. Accordingly,
this case differs from those in which a request for counsel
preceeding Miranda warnings is deemed ineffective. See,
e.g., Burket v. Angelone, 208 F.3d 172, 198 (4th Cir.), cert.
denied, 530 U.S. 1283 (2000) (request for a lawyer when
suspect was not in custody and was told that he was free to
leave did not render subsequent admissions inadmissible).
But the parties do dispute whether or not Abela’s request
for counsel was clear and unambiguous such that the Edwards
protections were triggered and the police were compelled to
cease questioning immediately. In Davis, the defendant was
informed of his right to remain silent and to have an attorney
16 Abela v. Martin No. 00-2430
present during questioning, and he waived those rights.
Davis, 512 U.S. at 454. However, approximately one-and-a-
half hours into the interview, the defendant stated, “Maybe I
should talk to a lawyer. Id. at 455. Investigators immediately
inquired whether the defendant was “asking for a lawyer,” or
whether he was “just making a comment about a lawyer,” and
the defendant responded: “No, I’m not asking for a lawyer . . .
No, I don’t want a lawyer.” Id. (internal quotation marks
omitted). On appeal, the defendant argued that he had
invoked his right to counsel and that, therefore, police
questioning should have ceased. But the Supreme Court
concluded that the defendant’s statement – “Maybe I should
talk to a lawyer” – was ambiguous, and not sufficiently clear
such that a reasonable police officer in the circumstances
would have understood the statement to be a request for an
attorney. Id. at 462; see also Ledbetter v. Edwards, 35 F.3d
1062, 1070 (6th Cir. 1994) (holding that the defendant’s
statement that “it would be nice” to have an attorney was not
a clear and unambiguous request for counsel). Furthermore,
the investigators’ questions had helped clarify that Davis was
not, in fact, requesting an attorney. Id. at 461. (“Clarifying
questions help protect the rights of the suspect by ensuring
that he gets an attorney if he wants one, and will minimize the
chance of a confession being suppressed due to subsequent
judicial second-guessing as to the meaning of the suspect’s
statement regarding counsel.”).
Respondent contends that Abela’s case is identical to
Davis, because, when Sergeant McCabe began questioning
Abela, he responded by stating, “maybe I should talk to an
attorney by the name of William Evans.” Respondent argues
that Abela’s use of the word “maybe” is dispositive. We
disagree, because in this case, unlike in Davis, the
circumstances surrounding the statement were such that “a
reasonable officer would have understood” that Abela was
clearly and unequivocally invoking the right to counsel.
Abela did not merely say, “Maybe I should talk to an
attorney,” as did the defendant in Davis. Rather, Abela
named the specific individual with whom he wanted to speak

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No. 00-2430 Abela v. Martin 17
and then showed Sergeant McCabe the attorney’s business
card. McCabe said he would call Abela’s attorney for him
and left the room presumably to do so. Although our inquiry
is an objective one, id. at 459, McCabe’s actions confirm that
a reasonable officer would understand Abela’s statement to be
a clear request for counsel.
The events surrounding Abela’s statement sharply contrast
with the facts in Davis, where the suspect followed his
purported request for counsel with a statement indicating that
he was not asking for counsel. In our case, the events
surrounding Abela’s request corroborate the unequivocal
nature of that request. Accordingly, we reject Respondent’s
contention that the word “maybe” be viewed in isolation, and
as dispositive of the question before us. Moreover, as we
have determined in other cases, language that might be less
than clear, when viewed in isolation, can become clear and
unambiguous when the immediately surrounding
circumstances render them so. See Kyger v. Carlton, 146
F.3d 374, 376 (6th Cir. 1998) (finding an unequivocal request
for counsel where the defendant stated that “I would just as
soon have an attorney,” in response to an officer’s asking
him: “Would you answer some of our questions, without an
attorney present?”). We note that a court’s use of surrounding
circumstances to evaluate the clarity of a suspect’s request for
counsel neither is precluded by nor alters the Supreme Court’s
decision declining to adopt a rule requiring officers to ask
clarifying questions in these circumstances. Davis, 512 U.S.
at 461-62.
After Abela requested counsel, the police were required to
cease questioning him until he had a lawyer present. The
police’s failure to cease questioning Abela – that is, both
(1) Sergeant McCabe’s returning to Abela, reading him his
Miranda rights, and proceeding to interrogate him at the
hospital, and (2) the police questioning that continued in the
morning, at the police station, after Abela was released from
the hospital – violated Abela’s right to counsel, the contours
of which are clearly established by federal law and Supreme
18 Abela v. Martin No. 00-2430
Court precedent. Minnick v. Mississippi, 498 U.S. 146, 153-
54 (1990). Furthermore, because Abela’s statements were
self-incriminating and among the most significant evidence
marshaled against him by the state, we do not find their
admission into evidence harmless.
Finally, our decision is not altered by the fact that, after
requesting counsel, Abela was read his Miranda rights, signed
a waiver of them, and proceeded to make a statement at the
hospital and at the police station (where, although not re-read
his Miranda rights, he was asked whether he “remembered”
them). As just discussed, when a suspect invokes his Fifth
Amendment right to counsel, police questioning must cease
until counsel is present. A suspect may waive his Fifth
Amendment right to counsel and the Edwards protections
after counsel has been requested, but only if the suspect
himself has initiated the conversation or discussions with the
authorities. Minnick, 498 U.S. at 155-56. The evidence here
shows that Abela did not initiate conversation with the police.
Rather, he gave a statement only after Sergeant McCabe
returned to the room, read him his Miranda rights, and
resumed questioning. In Arizona v. Roberson, 486 U.S. 675
(1988), the Supreme Court explained that the bright-line,
prophylactic Edwards rule protects against the inherently
compelling pressures of custodial interrogation by creating a
presumption that any subsequent waiver of the right to
counsel at the authorities’ behest was coercive and not purely
voluntary. Id. at 685-86. Moreover, the Supreme Court
expressly rejected the contention that the fresh issuance of
Miranda warnings, after the suspect requested counsel, would
overcome the pressures created by the custodial nature of the
situation. Id. at 686; see also United States v. Hall, 905 F.2d
959, 961, 964-65, (6th Cir. 1990), cert. denied, 501 U.S.
1233 (1991) (holding that once an accused expresses a desire
to deal with police only through counsel, a presumption is
created that any subsequent waiver of the right to counsel at
the authorities’ behest is coercive and not purely voluntary;
invoking Roberson in rejecting the proposition that “a fresh
set of Miranda warnings would ‘reassure’ a suspect who had

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No. 00-2430 Abela v. Martin 19
been denied counsel” that “his rights would remain
untrammeled.”).
Accordingly, because we find that Abela’s Fifth
Amendment right to counsel was violated and the state
courts’ orders rejecting this claim are contrary to clearly
established federal law, as determined by the U.S. Supreme
Court, we grant Abela’s request for habeas relief on this
ground.
2. Whether Abela’s Statements Were Unknowing and
Involuntary Due to His Physical and Mental
Condition
In addition to arguing that his statements to the police were
inadmissible because they were elicited in violation of his
Fifth Amendment-based right to counsel, Abela also contends
that the statements were unknowing and involuntary because
he was intoxicated, in pain, and on pain medication during
police questioning.
The state bears the burden of proving that a defendant
“voluntarily, knowingly, and intelligently waived his right to
silence and counsel.” United States v. Bentley, 726 F.2d
1124, 1126 (6th Cir. 1984). This Court uses a “totality of the
circumstances” to determine whether a petitioner’s statements
were involuntary. Brown v. Illinois, 422 U.S. 590 (1975).
The Supreme Court has stated that, in conducting this test, a
court should consider factors such as: (1) police coercion;
(2) length of interrogation; (3) location of interrogation;
(4) continuity of interrogation; (5) the suspect’s maturity;
(6) the suspect’s education; (7) the suspect’s physical
condition and mental health; and (8) whether the suspect was
advised of Miranda rights. Withrow v. Williams, 507 U.S.
680, 693-94 (1993). Coercive police activity is a necessary
element for finding that a confession was involuntary.
Colorado v. Connelly, 479 U.S. 157, 167 (1986).
20 Abela v. Martin No. 00-2430
When Abela arrived at the hospital, he was injured;
specifically, his nose was broken. In addition, Abela
contends that he drank alcohol in large quantities the night
before. However, there is no evidence in the record that he
was still drunk during his interrogations or that his mental
faculties were in any other respect impaired during
questioning as a result of alcohol or medication. Still, the
record makes clear that Abela was physically uncomfortable
– indeed, his taped interview at the police station had to be
stopped briefly because Abela was vomiting from the effects
of the previous night’s alcohol.
Abela has failed to demonstrate that the state court
decisions rejecting this claim were contrary to, or involved an
unreasonable application of, clearly established federal law,
as determined by the U.S. Supreme Court. As a preliminary
matter, he has presented no evidence of police coercion.
More importantly, although we are sympathetic to Abela’s
uncomfortable state in the hospital and police station, Abela
has not shown that the facts of this case are equivalent to
those in Mincey v. Arizona, 437 U.S. 385 (1978), or Beecher
v. Alabama, 389 U.S. 35 (1967), where the U.S. Supreme
Court held involuntary the statements of wounded men. In
those cases, the petitioners’ injuries were more severe and
there was clear evidence of a coercive environment. In
Mincey, the petitioner was seriously wounded after being shot
by police during a narcotics raid on his apartment. He arrived
at the hospital “depressed almost to the point of coma,”
according to his attending physician. Mincey, 437 U.S. at
398. In addition, at the time of his interrogation, his
condition was still serious enough that he was in the intensive
care unit. Id. Mincey complained to the police officer that
the pain in his leg was “unbearable” and the record
demonstrated that he was “confused and unable to think
clearly about either the events of that afternoon or the
circumstances of his interrogation.” Id. Nevertheless, police
questioning continued. Moreover, while Mincey was being
questioned, he was “lying on his back on a hospital bed,
encumbered by tubes, needles, and [a] breathing apparatus”

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No. 00-2430 Abela v. Martin 21
that a nurse testified was reserved for only the “more critical”
patients.
Beecher involved an African-American petitioner accused
of raping and killing a white woman. He had fled into an
open field and was chased by police, who fired a bullet into
his right leg. One officer then pressed a loaded gun to the
petitioner’s face while another officer pointed a rifle against
the side of his head. The first officer then asked him whether
he had raped and killed a white woman. When the petitioner
responded that he had not, the officer called him a liar and
said, “If you don’t tell the truth I am going to kill you.”
Beecher, 389 U.S. at 36. The other officer then fired his rifle
next to the petitioner’s ear and the petitioner immediately
confessed. Five days later, in a prison hospital, petitioner’s
leg had become so swollen that he required an injection of
morphine every four hours (the leg eventually had to be
amputated). Less than one hour after one of these injections,
two Alabama investigators visited Beecher in the prison
hospital. The medical assistant in charge told the petitioner
to “cooperate” and, in the petitioner’s presence, asked the
investigators to inform him if the petitioner did not “tell them
what they wanted to know.” Id. In the course of a ninety-
minute session, the investigators prepared two detailed
statements similar to the confession the petitioner had given
five days earlier at gunpoint. As the Supreme Court
explained, “[s]till in a ‘kind of slumber’ from his last
morphine injection, feverish, and in intense pain, the
petitioner signed the written confessions thus prepared for
him.” Id. at 37.
Having studied the record on appeal with respect to Abela’s
physical and mental state during questioning, we do not find
his situation sufficiently analogous to the grave medical
conditions and coercive environments in Mincey and Beecher
to warrant relief. We therefore deny this claim. However, as
discussed above, we find Abela’s statements improperly
admitted on the ground that they were elicited in violation of
his Fifth Amendment right to counsel.
22 Abela v. Martin No. 00-2430
E. Prosecutorial Misconduct
In his next claim for relief, Abela contends that he was
deprived of his right to a fair trial and due process pursuant to
the Sixth and Fourteenth Amendments because the
prosecutor, in his closing argument, invented a conversation
between Abela and Ronald Wright. Specifically, the
prosecutor stated that, prior to Wright’s return to Allen
Howard’s house to retrieve his jacket, Abela told Wright:
“Ronnie, better take this [knife] when we go back. Ain’t
nobody going to kick our ass anymore. Let’s go back.” No
testimony offered at trial shows that Abela actually made this
statement.
In order to prevail on a claim of prosecutorial misconduct,
a habeas petitioner must demonstrate that the statements of
the prosecutor “so infected the trial with unfairness as to
make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). In
determining whether a petitioner’s due process rights were
violated, this Court looks at the totality of the circumstances,
including:
the degree to which the remarks complained of have a
tendency to mislead the jury and prejudice the accused;
whether they are isolated or extensive; whether they were
deliberately or accidentally placed before the jury, and
the strength of the competent proof to establish the guilt
of the accused.
Kincade v. Sparkman, 175 F.3d 444, 446 (6th Cir. 1999). It
is improper for a prosecutor to argue facts not in evidence.
Berger v. United States, 295 U.S. 78 (1935). Here, the
prosecutor presented a hypothetical conversation between
Abela and Ronald Wright in an attempt to explain why the
two might have returned to the party after being told to leave.
At trial, Abela’s theory of self-defense was pitted against the
prosecution’s theory that Abela and Wright purposefully
instigated the violent brawl that resulted in Stanley

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No. 00-2430 Abela v. Martin 23
Underwood’s death. As such, the prosecutor’s hypothetical
was crucial to the primary theme of its closing argument and
the theory of the case supporting the jury’s verdict.
Accordingly, and because evidence of Abela’s guilt was not
overwhelming, we must scrutinize the statement carefully.
We would be highly concerned if the prosecutor presented
the conversation as factual. But, here, the prosecutor prefaced
this part of his argument by advising the jury: “and exactly
what was said probably we’ll never know but probably went
something like this . . . .” Because of this preface, we are
persuaded that the jury would not have been misled into
believing that the prosecutor was quoting from an actual
conversation, but that he was rather presenting beliefs he
would have the jury infer from the evidence presented at trial.
Byrd v. Collins, 209 F.3d 486, 536 (6th Cir. 2000). In
addition, when charging the jury, the trial judge reminded
jurors that they “can only consider the evidence that has been
properly admitted in the case” and that “[e]vidence includes
only the sworn testimony of the witnesses” and any admitted
exhibits, but that “[t]he lawyers’ statements and arguments
are not evidence.”
Taken together, these factors persuade us that the
prosecutor’s statement, when viewed in light of the entire
trial, did not deprive Abela of his due process rights.
F. Ineffective Assistance of Trial Counsel
Abela’s next claim is that his trial counsel was ineffective
for failing to object to the untimeliness of the prosecution’s
motion for reconsideration, which sought to reinstate the
concealed weapon charge, previously dismissed by the trial
judge. To establish an ineffective assistance of counsel claim,
a habeas petitioner must show that: (1) counsel’s performance
was deficient; and (2) counsel’s deficient performance
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687
(1984).
24 Abela v. Martin No. 00-2430
On November 5, 1990 – more than fifty days after the trial
court dismissed the concealed weapon count – the prosecutor
filed a motion for reconsideration of the dismissal order,
seeking to reinstate the charge. Mich. Ct. Rule 2.119(F)(1)
provides that:
Unless another rule provides a different procedure for
reconsideration of a decision . . . , a motion for rehearing
or reconsideration of the decision on a motion must be
served and filed not later than 14 days after entry of an
order disposing of the motion.
Because the prosecution filed its motion for reconsideration
well outside the time limit prescribed by Michigan law, Abela
contends that his counsel’s failure to object to the untimely
motion constituted deficient performance.
However, M.C.R. 2.119(F)(2) states that “No response to
the motion [for reconsideration] may be filed. . . .” In other
words, the Michigan Court Rules did not permit Abela’s trial
counsel to file an opposition to the state’s motion for
reconsideration. Accordingly, we cannot say that Abela’s
trial counsel was constitutionally deficient for failing to
oppose the state’s motion for reconsideration. It was
incumbent on the trial court to reject the motion as untimely,
if it saw fit to do so.
G. Ineffective Assistance of Appellate Counsel
Lastly, Abela contends that his appellate counsel was
ineffective for failing to raise on direct appeal in the state
court the full set of claims presented in his habeas petition –
that is, the claims we have discussed to this point. Abela
points to the alleged ineffective assistance of appellate
counsel as “cause” for any procedural default of his claims in
state court. See Murray v. Carrier, 477 U.S. 478, 488 (1986)
(holding that if a petitioner can show that he received
ineffective assistance of appellate counsel, this may excuse
his procedural default of claims in the state court).

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No. 00-2430 Abela v. Martin 25
We need not determine whether the alleged ineffective
assistance of appellate counsel would constitute “cause” for
any procedural default because, as we determined in Part II,
B. above, Abela’s habeas claims were not procedurally
defaulted in the state courts.
III. CONCLUSION
On the basis of our determinations above – (1) that we are
not precluded from considering Abela’s claims on the ground
of procedural default and (2) that statements made by Abela
and admitted at trial were unconstitutionally elicited by police
after he invoked his right to counsel – we REVERSE the
district court’s judgment and REMAND to the district court
with instructions to grant the writ of habeas corpus, unless the
state elects to retry Ablea within ninety days of the date of
this opinion’s entry.
26 Abela v. Martin No. 00-2430
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
SILER, Circuit Judge, concurring in part and dissenting in
part. I concur in all of the conclusions by the majority, except
those conclusions that the petitioner, Kevin Mark Abela, was
denied his constitutional right to counsel under the Fifth
Amendment, and that a writ of habeas corpus should issue
unless the state elects to retry Abela for the same charges.
The constitutional violation which the majority finds is the
introduction at trial of a statement allegedly made in violation
of Miranda v. Arizona, 384 U.S. 436 (1966). I would find
that there was no constitutional violation. Therefore, I would
affirm the district court in denying the writ.
Abela’s statement to the officers before he was advised of
his Miranda rights was “maybe I should talk to an attorney by
the name of William Evans.” Sgt. Michael McCabe offered
to call Evans or another attorney, but before Sgt. McCabe
attempted to call Evans or anyone else, he proceeded to
advise Abela of his Miranda rights. It was at this point when
Abela said that he would tell them everything, and did not ask
for the right to consult with Evans or any other attorney. As
the district court found, Abela’s statements do not constitute
an unequivocal request for counsel as required under Davis v.
United States, 512 U.S. 452, 458-59 (1994). In Davis, the
accused made a similar request that “maybe I should talk to
a lawyer.” The Court held that was not an unambiguous
request for counsel. I would not hold that a specific naming
of an attorney in this case distinguishes the facts sufficient to
find a Miranda violation. See Ledbetter v. Edwards, 35 F.3d
1062, 1070 (6th Cir. 1994) (holding that the statement that “It
would be nice” to have an attorney was not a clear and
unambiguous request for counsel). Although the majority
opinion relates that Abela handed Sgt. McCabe a business
card for Evans and that McCabe left the room with the card to
phone the attorney, the district court did not find those facts.

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No. 00-2430 Abela v. Martin 27
Instead, Abela testified that the card was in his wallet, which
was in another room. He said that McCabe left the room after
he told him about the card, but McCabe did not say anything
about the card nor the attorney after that. Sgt. McCabe
testified that Abela pulled out a business card from his wallet
and showed it to McCabe, but McCabe did not say anything
about leaving the room with the card to phone the attorney.
Therefore, I would find that the facts determined by the
district court below were not clearly erroneous, and I would
uphold the decision by the district court that no Miranda
violation occurred.
In sum, I would affirm the decision of the district court in
denying the writ of habeas corpus.

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