United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS
GERSHWIN A. DRAIN, District Judge.
This matter is before the Court on Petitioner Austin Klich's petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner challenges his Saginaw Circuit Court guilty plea conviction of twenty-two counts of first-degree criminal sexual conduct. As a result of these convictions, Petitioner was sentenced to twenty-two concurrent terms of 14-to-40 years imprisonment. The petition claims that Petitioner's statement to police was elicited without being informed of his Miranda rights. The Court will deny the petition because the claim is without merit. The Court will also deny Petitioner a certificate of appealability and permission to proceed on appeal in forma pauperis.
I. Facts and Procedural History
Petitioner's conviction stems from a March 21, 2011, complaint by an eleven-year-old girl that she was sexually assaulted by Petitioner, who was sixteen years old when the offense occurred. Petitioner was born on March 24, 1994.
After charges were brought against Petitioner, he filed a motion to suppress his statement to police, and the trial court held an evidentiary hearing. The investigating officer, Detective McAllister, testified at the hearing that he picked up Petitioner for an interview at a relative's house on April 29, 2011. McAllister asked Petitioner if he was willing to talk to him regarding a criminal investigation. McAllister testified that he then asked Petitioner if he would agree to be interviewed at the police station because there was recording instruments there. Petitioner agreed, and McAllister drove him to the station, located about ten miles away.
When they arrived at the station McAllister told Petitioner that he was not under arrest, he was not required to make any statements, and he was free to leave at any time. He did not give Petitioner Miranda warnings. McAllister could not remember whether he told Petitioner that making a statement would benefit him or whether he told Petitioner that this was his opportunity to give his side of the story. McAllister did not ask Petitioner if he could read and right, how far he went in school, whether he was receiving counseling and therapy, or whether he was a special education student. These preliminary statements were not recorded.
McAllister testified that he then interviewed Petitioner from 1:30 to 2:32 p.m. After the first half-hour of the interview, McAllister found that the recording equipment was not functioning, and he conducted a second interview lasting about another half-hour which was successfully recorded. Petitioner made incriminating statements during the interview. Following the interview, McAllister did not arrest Petitioner but gave him a ride home.
After the hearing, the trial court found that McAllister did not delay the interview until Petitioner was seventeen years old as a tactic to avoid the requirement that Petitioner's parents be informed, or that the officer intentionally disabled the recording equipment. The court also found that Petitioner was not in custody at the time of the interview.
Petitioner later entered a conditional guilty plea. The plea agreement called for a minimum sentence not to exceed fourteen years, and the opportunity to appeal the Miranda issue.
Following his conviction and sentence, Petitioner filed a delayed application for leave to appeal in the Michigan Court of Appeals, raising the following claim:
I. In the totality of the circumstances the statements made by defendant/appellant to police during questioning must be suppressed as a result of being obtained in violation of the right of defendant against involuntary confession or alternatively his right to counsel.
While the issue heading refers to Petitioner's statement being involuntary, the appellate brief only presented an argument regarding an alleged violation of Miranda.  The Michigan Court of Appeals affirmed Petitioner's conviction "for lack of merit in the grounds presented." People v. Klich, No. 314100 (Mich. Ct. App. Feb. 21, 2013). Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claim. The Michigan Supreme Court denied the application because it was not persuaded that the question presented should be reviewed. People v. Klich, 832 N.W.2d 230 (Mich. 2013) (table).
II. Standard of Review
Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if he can show that the ...