Bucio v. Sutherland (674 F. Supp. 2d 882, 2009)

OPINION AND ORDER

S. ARTHUR SPIEGEL, Senior District Judge.

This matter is before the Court on Magistrate Judge Black’s August 27, 2009 Report and Recommendation (doc. 23) and each of Petitioner’s and Respondent’s objections thereto (docs. 26 and 27, respectively). For the reasons indicated herein, the Court ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation in its entirety and GRANTS Petitioner’s writ of habeas corpus on Grounds Two and Six.

I. Background

The Magistrate Judge’s Report and Recommendation is extremely thorough, both in its presentation of the facts and its analysis of the record and the law. Consequently, the Court will merely present a brief summary of the case to contextualize the Court’s opinion. In brief, this case involves the following facts, taken from the Magistrate Judge’s Report and Recommendation (doc. 28). In June of 2003, Petitioner Jorge Bucio (“Petitioner” or “Bucio”), age thirteen at the time, was left alone by his mother to care for his four younger siblings, then aged ten years, three years, two years and thirteen months (Id). At some point that night, Bucio told his ten-year-old brother that something was wrong with the baby (Id). The ten-year-old performed CPR when it was apparent that the baby was not breathing (Id). The baby was nonresponsive, and, unable to find the phone, the children laid the baby on the couch and prayed until their mother returned, at which point emergency services were notified (Id). The baby was transported to the hospital with his mother, where he later died, while Bucio and his three other siblings were taken to the police station (Id). The police questioned Bucio first, and he initially told the detective that the baby had fallen down the stairs; upon learning that his brother had died, Bucio told the detective that he had struck the baby with a metal bar and choked him around the neck (Id). After hearing that story, the detective read Bucio his Miranda rights and Bucio signed a statement reflecting the story (Id).

Bucio was indicted by grand jury of one count of felony murder and one count of child endangerment (Id). The grand jury also found Bucio age-eligible for disposition as a “serious youthful offender,” and, after Bucio was subsequently found guilty of both counts, the juvenile court ordered a “blended sentence,” meaning that Bucio was committed to the Ohio Department of Youth Services (“ODYS”) until the age of twenty-one, and given an adult sentence of fifteen-years-to-life for murder with an additional two years for child endangerment, the adult sentence being stayed pending the successful completion of the juvenile sentence (Id).

Having exhausted his state appeals and attempts for post-conviction relief, Bucio filed the instant petition for writ of habeas corpus, which set forth six grounds for relief, three of which he subsequently voluntarily dismissed (Id). Before the Court, therefore, are the following three grounds:

Ground Two: Petitioner was denied his right against self-incrimination;

Ground Four: Petitioner was denied due process of law and trial by jury because the trial court made certain mandatory statutory findings before imposing a sentence greater than the maximum term authorized by the jury verdict, in violation of the Sixth and Fourteenth Amendments to the United States Constitution; and

Ground Six: Petitioner was denied effective assistance of trial counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution (Id).

II. The Magistrate Judge’s Report and Recommendation

A brief summary of the Magistrate Judge’s Report and Recommendation follows.

A. Ground Two

Petitioner’s claim that he was denied his right against self-incrimination in violation of the Fifth and Fourteenth Amendments to the United States Constitution is grounded in his assertion that his initial oral statement was given while in custody, in response to interrogation, and prior to being provided the required Miranda warnings (Id). Petitioner further claims that his second, written statement was the product of the unlawfully coerced first oral statement and was not voluntarily given (Id).

The Magistrate Judge undertook a thorough analysis of the record and the relevant body of law that has fleshed out Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He correctly observed that the relevant inquiry with respect to this asserted ground contains four overarching questions: whether Bucio was in custody; whether he was interrogated while in custody; whether the second statement was tainted by the first; and whether, if the first three are answered affirmatively, the introduction of Bueio’s confessions amounted to harmless error (doc. 23).

1.Whether Bucio was in Custody

The Magistrate Judge noted that the state court of appeals found that Bucio was not in custody when he made his initial statements to the detective the night of his brother’s death because he was not put under formal arrest; he was taken to the police station as a potential witness and was not allowed to leave for his own protection; the interview took place not in an interrogation room but at a desk and there were no “restrictive elements” to the interview; and the detective was merely trying to glean information about the incident from Bucio, and Bucio was free to stop talking to the detective at any time (Id.). However, the Magistrate Judge found that these factors relied upon by the state court do not support the conclusion that the state’s decision was reasonable (Id.). Instead, for example, the Magistrate Judge found the detective’s assertion that Bucio was taken to the station and kept there for his own protection to be a subjective reason that should not be used to determine whether, objectively, a thirteen year-old being questioned by a detective at 3:00 in the morning at the police station would feel free to leave (Id.). Similarly, the Magistrate Judge found that the state court’s reliance on the fact that the interview took place in the detective’s office, not the interrogation room, was misplaced because “the questioning still occurred in a police-dominated atmosphere apart from petitioner’s siblings, parent, or any other supportive third-party” (Id.).

In addition, the Magistrate Judge found that the state court “ignored numerous objective factors which, under Supreme Court precedent, point to the conclusion that [Bucio] was in custody at the time he gave his initial statement implicating himself in his brother’s death” (Id.). Specifically, the Magistrate Judge pointed to the following facts, which, under the totality of the circumstances, would lead a reasonable person in Bucio’s position to conclude he was not free to leave: Bucio did not appear at the station voluntarily; his parents were not contacted prior to the questioning, and Bucio was alone with the detective for his questioning; Bucio was not offered a break and not informed that he could refuse to answer the detective’s questions; Bucio was separated from his siblings and parent and questioned for approximately forty minutes before giving incriminating statements; he was not told he was free to leave and, in fact, he was not free to leave; and he was not released after questioning but placed under arrest (Id.). Because the factors relied upon by the state court could not reasonably support a finding of non-custody, and because other factors support the conclusion that a reasonable person in Bucio’s situation would not have felt free to leave at will, the Magistrate Judge found that the state court’s decision that Bucio was not in custody was an unreasonable application of federal law (Id.).

2.Whether Bucio was Interrogated

Because the state court, having decided that Bucio was not in custody, never reached the question of whether he was subjected to interrogation, the Magistrate Judge reviewed the issue de novo and found that Bucio was so subjected (Id.).

3.Whether the Second Statement was Tainted by the First

While Bucio’s initial statement was obtained in violation of his constitutional rights, the Magistrate Judge determined, Bucio did give a second oral and written statement after he was given the Miranda warnings, which raises the question of whether the Miranda warnings given before the second statement cure the ills of the un-warned first statement (Id.). The Magistrate Judge correctly noted that the issue of tainted second confessions hinges on certain key questions, including whether the first statement was made voluntarily and whether a question-first-warn-later interrogation technique was used (Id., citing to Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004)).

Regarding the voluntariness of Bucio’s first statement, the Magistrate Judge found that, under the totality of the circumstances, the statement cannot be found to be voluntary (Id., citing, among others, Elstad, 470 U.S. at 318, 105 S.Ct. 1285; Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948)). The Magistrate Judge noted that the factors courts must look to for indicia of voluntariness include the age, education and intelligence of the accused; whether the accused has been informed of his constitutional rights; the length and extent of the questioning; and the use of physical punishment, such as the deprivation of food or sleep (Id., citing, among others, Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Here, Bucio did not go to the station voluntarily; he was only thirteen years old at the time; he had limited intellectual abilities and limited schooling and had an IQ in the borderline mental retardation range, functioning at the moderately retarded range in his reasoning and judgment ability; the detective repeatedly questioned Bucio’s truthfulness with no parent or other supportive adult present; and the questioning took place in the early morning hours, with Bucio never having been told that he did not have to answer the detective’s questions (Id.). Given the totality of the circumstances, the Magistrate Judge found that Bucio’s statement could not be found voluntarily given and that no curative measures had been taken (Id.).

With respect to the question-first, warn-later approach, the Magistrate Judge noted that courts are to be guided by five factors when assessing whether Miranda warnings given between statements can be effective at removing the taint of an unwarned first statement on a warned second statement (Id., citing Seibert, 542 U.S. at 615, 124 S.Ct. 2601, plurality opinion). These factors are: the completeness and detail involved in the first round of questioning; the overlapping content of the statements made before and after the warning; the timing and setting of the interrogation; the continuity of police personnel during the interrogation; and the degree to which the interrogator’s questions treated the second round as continuous with the first (Id.). Analyzing the instant case through the lens of these factors, the Magistrate Judge found that the mid-statement Miranda warning was not effective in removing the taint of the first statement on the second (Id.).

Consequently, the Magistrate Judge found that the state court’s admission of Bueio’s statements was contrary to clearly established federal law (Id.).

4. Whether the Introduction of the Statements was Harmless Error

Because Bucio’s statements were directly inculpatory and admitted to prove essential elements of the state’s ease, not cumulative of other evidence, and critical to the establishment of mens rea for the child endangerment charge, upon which the felony-murder conviction was based, the Magistrate Judge found that the introduction of the statements was not harmless error (Id.).

5. Remedy

The Magistrate Judge, having found that the state court acted contrary to clearly established federal law when it admitted Bucio’s statements and having further found that such admission was not harmless, recommended that Bucio’s petition for writ of habeas corpus be granted and that Bucio be released from custody unless he is granted a new trial within a time frame fixed by the Court (Id.).

B. Ground Four

In Ground Four of his petition, Bucio claims that he was denied due process because the trial court imposed a blended sentence based on judicial fact-finding, fact-finding which, Bucio asserts, should have been conducted by a jury (Id.). Bucio analogized his situation to Supreme Court cases in which the Court found that, when sentencing adults to terms longer than the statutory maximum, judges cannot rely on facts not found by a jury (Id., citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)). The Magistrate Judge, however, was persuaded by a recent Ohio Supreme Court case that confronted and denied a similar constitutional challenge to the serious youthful offender statute that authorizes a blended sentence like the one Bucio received (Id., citing State v. D.H., 120 Ohio St.3d 540, 901 N.E.2d 209 (2009)). Specifically, the Magistrate Judge found that the policy underpinnings of the juvenile system-primarily that rehabilitation be the goal-distinguish juvenile sentences from adult sentences such that the Constitutional protections identified in Apprendi and Blakely are not applicable in the juvenile setting, even with a blended sentence (Id.).

Consequently, the Magistrate Judge recommended that Bucio not be granted a writ of habeas corpus on Ground Four, but that, because reasonable jurists would find it debatable whether the decision could have come out differently, a certificate of appealability should issue (Id., citing Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).

C. Ground Six

Bucio’s claim that he was denied effective assistance of counsel has two distinct factual bases: Bucio asserts first that his counsel was ineffective when he refused a plea offer without first presenting it to Bucio and second that his counsel was ineffective when he failed to consult with and seek testimony of an expert regarding the cause of death (Id.).

1. The Plea Offer

The Magistrate Judge determined first that Bucio’s claim regarding the plea offer was not procedurally barred because it fit within relevant exceptions to the res judicata bar for ineffective assistance claims raised in post-conviction relief petitions (Id.). In short, the Magistrate Judge found that Bucio had presented competent and credible evidence that his trial counsel did, in fact, fail to present a valid plea offer to Bucio, which failure was prejudicial to Bucio (Id., citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under these circumstances, the Magistrate Judge recommended that the proper remedy is to reinstate the plea offer and that Bucio should be given an opportunity to accept such offer and be sentenced according to its terms (Id.).

2. The Expert

The Magistrate Judge found that Bucio’s counsel’s failure to consult with an expert regarding the coroner’s testimony and the cause of death was likely deficient (Id.). However, he also found that the record did not provide sufficient evidence to permit him to determine whether counsel’s failure to call such an expert was a matter of “sound trial strategy” or, instead, a violation of counsel’s duty to conduct a reasonable, diligent investigation of the case (Id.). The Magistrate Judge noted that if Bucio’s trial counsel had consulted with an expert witness like the one consulted by his appellate counsel, who opined that the real cause of death was poorly administered CPR and that the contusions and other injuries were similarly the result of the CPR and not a metal bar or choking, and had such testimony been presented to the jury, the outcome of the case would likely have been quite different (Id.). The state courts did not afford Bucio an evidentiary hearing on this issue (Id.).

Therefore, in order to flesh out the facts underlying this claim so that the Court may properly adjudicate it, the Magistrate Judge recommended that the Court hold an evidentiary hearing wherein the state and Bucio’s counsel could respond to Bucio’s evidence supporting his claim that his trial counsel was ineffective in failing to investigate and secure expert testimony regarding the cause of death (Id.).

III. Petitioner’s Objections

Bucio objects to the Magistrate Judge’s decision with respect to Ground Four and argues that the state courts and the Magistrate Judge have misread Ohio’s serious youthful offender statute, and, correctly read, it is unconstitutional (doc. 26).

Citing to both Apprendi and Blakely, Bucio argues that the rehabilitative goals undergirding the juvenile justice system do not sufficiently distinguish the judicial fact-finding permitted by the Ohio serious youthful offender statute from the jury factfinding required for adults such that the constitutional guarantees afforded adults should be unavailable for juveniles (Id.). Bucio contends that the Magistrate Judge and the state courts have failed to appreciate the difference between the discretionary and the mandatory components of the Ohio serious youthful offender statute, and that a recognition of the difference leads to the conclusion that the constitutional safeguards articulated in Blakely and Apprendi should be applicable to the discretionary component (Id.).

Specifically, under certain circumstances, a juvenile may find himself subject to a mandatory blended sentence and, in such a case, either the jury verdict or the juvenile’s admission automatically subjects him to both the juvenile portion of the sentence and the adult portion of the sentence (Id., citing O.R.C. § 2152.13(D)(1)). In contrast, when, as here, a juvenile has been found eligible for a discretionary serious youthful offender sentence, he can only be given the adult portion of the sentence if the juvenile court makes certain findings (Id., citing O.R.C. § 2152.13(D)(2)(a)(i)). Bucio contends that, under the discretionary regime, vesting the judge alone with the power to make the statutory findings necessary to sentence a juvenile as an adult is a violation of the juvenile’s Sixth Amendment right to a trial by jury (Id.). Bucio argues that the federal protections of the Sixth Amendment should be available, minimally, to juveniles facing blended sentences because such dispositions are not quasi-criminal traditional juvenile court proceedings but, instead, actual criminal prosecutions (Id.). Indeed, Bucio argues, because the proceedings and the punishment in the blended sentencing context mimic those in the criminal trial context, no rational reason exists for affording adults in the latter context rights but denying the same rights to juveniles in the former (Id.).

In the alternative, Bucio argues that even if the Sixth Amendment rights do not apply in the blended sentencing context, Ohio’s blended sentencing scheme is violative of the fundamental fairness principles inherent in the Due Process Clause of the U.S. Constitution because the scheme relies on a flawed premise: the rationale behind the scheme is that the juvenile has the power to decide whether he will serve the adult time-either he performs his juvenile sentence without incident or he does not-but the system is so profoundly dysfunctional that successful rehabilitation is simply not an option for most juveniles (Id.). Relying on the report of a team of experts appointed as part of a class action suit to conduct intensive site visits of various Ohio youth services facilities, Bucio paints a disturbing picture of the Ohio juvenile rehabilitation system as being comprised of facilities that are overcrowded, understaffed, under-served in education, mental health treatment and rehabilitative programming, resulting in the “ingrained” use of needless and excessive force (Id.). In such an environment and against such odds, Bucio contends, it is fundamentally unfair to expect a juvenile to succeed in carrying his burden of rehabilitation (Id.).

Bucio therefore asks this Court to reject the Magistrate Judge’s recommendation with respect to Ground Four or, in the alternative, to issue a certificate of appeal-ability (Id.).

IV. Respondent’s Objections

Respondent objects only to the Magistrate Judge’s decision and recommendation regarding Bucio’s statements, the facts underlying Bucio’s Ground Two (doc. 27). Specifically, Respondent objects to the Magistrate Judge’s findings that Bucio was in custody at the time of his questioning and that the first statement tainted the second (Id.).

A. Custody

Respondent contends that the Magistrate Judge’s finding that Bucio was in custody is merely reflective of his difference of opinion, not a proper application of the law; the test used to determine whether a defendant is in custody permits courts a great deal of leeway and, while reasonable minds might disagree on the outcome of the test, it cannot be said that the state court’s decision was an unreasonable application of clearly established federal law (Id.). Specifically, Respondent takes issue with the Magistrate Judge’s statement that the state court “ignored” facts that support a finding of custody and contends that the court did not ignore those facts at all; instead, it applied those facts to the law and simply came up with an answer the Magistrate Judge disagreed with (Id.).

Respondent then specifically deconstructs each of the facts relied upon by the Magistrate Judge in reaching his conclusion that the state court erred in its custody determination. For example, Respondent contends that to rely on the fact that Bucio did not appear at the police station voluntarily ignores the realities of the situation because a thirteen year-old would not ordinarily be expected to arrive at the station on his own and his mother, at the hospital with the baby, was not available to bring him in (Id.). Similarly, relying on the absence of a parent or other adult during questioning or the fact that Bucio was separated from his siblings ignores the practical realities present-that Bucio’s mother was first at the hospital and then under interrogation herself and that it was easier to interview Bucio away from the other children and their presence may have unduly influenced his account of the events (Id., analogizing to Alvarado, 541 U.S. 652, 124 S.Ct. 2140, where custody was not found even when juvenile’s parents were not allowed in the interview). Respondent specifically takes issue with the Magistrate Judge’s failure to cite to the transcript to support his conclusion that “the police never contacted petitioner’s parent prior to questioning petitioner,” and contends that the record is silent on that point (Id.).

Respondent further contends that, while Bucio was not free to leave for his own safety and for the safety of his siblings, the facts that he was not physically restrained and that the officer testified that he would have been free to leave had there been an appropriate adult waiting for him support the state court’s finding of non-custody (Id.). Although Bucio was never told he was free to leave, Respondent argues that the absence of evidence to show that he was initially told he was under arrest similarly supports the state court’s determination (Id.). Further, Respondent contends that the Magistrate Judge cites the questioning style of the police as evidence that a reasonable person would not have felt free to leave, and argues that confronting Bucio with the detective’s disbelief was neither belligerent nor inconsistent with Alvarado (Id.). Finally, Respondent argues that the lateness of the hour and the fact that Bucio was ultimately arrested are facts upon which the Magistrate Judge inappropriately relied because the former was outside the detective’s control, and the latter is irrelevant because the correct standard is how a reasonable person would feel during the interview, not after the interview (Id., citing the Alvarado dissent, 541 U.S. at 672, 124 S.Ct. 2140).

In conclusion, Respondent argues that the state court considered the circumstances surrounding the interrogation and found that “Bucio was not restrained to the degree associated with a formal arrest,” which decision, because of the leeway given courts in their determination of custody, was not an unreasonable application of federal law (Id.).

B. Second Statement

Respondent contends that the police did not deliberately employ methods designed to thwart Miranda, making Seibert inapplicable, and argues that the proper standard to apply to this case is that set forth in Elstad: the post-warning statement is admissible provided it, and the initial unwarned statement, were voluntarily given (Id., citing Elstad, 470 U.S. at 314, 105 S.Ct. 1285). Because Bucio’s statements were voluntarily given, Respondent contends, the first statement, even if given in violation of Miranda, cannot be said to have tainted the second (Id.).

Y. Discussion & Analysis

If the constitutional issues have been properly adjudicated by the state court, this Court may not issue a writ of habeas corpus with respect to any claim adjudicated on the merits in state court unless the adjudication resulted in a decision that was either (i) contrary to, or involved an unreasonable application of, clearly established Supreme Court law or (ii) based on an unreasonable determination of the facts in light of the evidence presented in the state proceedings. Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d) (“AEDPA”).

The Court addresses the parties’ objections here.

A. Ground Two

1. Bucio was in custody

The Court is unpersuaded by Respondent’s arguments regarding the state court’s decision that Bucio’s constitutional rights were not violated when he gave his initial statement without having been provided his Miranda warnings. Instead, the Court finds that such a decision involved an unreasonable application of clearly established federal law, as detailed by the Supreme Court.

The Court first notes that the question of whether a person is in custody must be approached through the objective lens of how a reasonable person in the suspect’s position would understand his situation. Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). The overarching question is whether, under the totality of the circumstances, “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” Id. at 663, 124 S.Ct. 2140.

Respondent places great emphasis on the Magistrate Judge’s use of the word “ignored” with regard to the factors speaking to custody and contends that the state court didn’t ignore any factors (doc. 27). Respondent then segregates each fact noted by the Magistrate Judge in his Report and Recommendation, facts that do not appear in the state court’s discussion of its finding, and argues against their use to support a finding of custody (Id.). Unfortunately, Respondent, like the state court, has missed the forest for the trees.

The Magistrate Judge did say that the state “ignored numerous objective factors which, under Supreme Court precedent, point to the conclusion that petitioner was in custody” (doc. 23). Respondent concedes that the state court did not specifically identify those facts that weigh in favor of a finding of custody and those against, but Respondent argues that there “is nothing in the state court opinion to suggest that the court simply ‘ignored’ ” all of the relevant facts (doc. 27). While the state court need not explicitly detail the minutiae of its weighing process, it must analyze all of the facts present, not as individual, segmented parts, but as a whole. There may be, as Respondent contends, nothing to suggest that the state court ignored relevant facts, but, critically, there is nothing to suggest that it engaged with them. Clearly established federal law, as delineated by the Supreme Court, requires a consideration of the totality of the circumstances in custody determinations, and, as the Magistrate Judge cogently detailed, the state court failed to undertake that consideration. Had it done so, the reasonable application of federal law would have led the state court to a finding of custody.

Bucio was taken into the police station with three of his siblings, without a parent or other adult, in the middle of the night, his baby brother and mother whisked off to the hospital. While Respondent is correct that the lateness of the hour was not the detective’s fault, that is a red herring-the lateness of the hour is not a question of fault; it is, however, a fact that contributes to the totality of the circumstances in which Bucio found himself. While the detective had no control over the timeline of events, he had full control over the course of his interrogation of Bucio and the others involved. The detective had total control over when and how to interrogate Bucio, and he chose to do so at that hour, in that manner, and without a parent, an attorney or another adult present. Respondent claims that Bucio was merely a potential witness and not a suspect, and that he wasn’t free to leave for his own protection because of his youth, the neighborhood and the lateness of the hour. Again, this is not relevant. As the Magistrate Judge correctly notes, the detective’s assertion to this effect has absolutely no bearing on whether a reasonable person in Bucio’s circumstances would have felt free to leave, the only relevant inquiry here. Similarly, under these circumstances, it is not relevant why Bucio was not free to leave. There is no evidence to suggest that the reasons behind his detention were shared with him, which may have alleviated a feeling of custody. After the fact, however, the detective’s subjective reasons behind not allowing Bucio to leave are not relevant-the fact remains that, under the totality of the circumstances present here, Bucio was not free to leave. Respondent argues that this somehow leads to the “undesirable conclusion that every time the police prevent a juvenile witness from leaving because a responsible adult is not available, he is considered in custody for purposes of Miranda” (doc. 27). Leaving aside whether this is an undesirable conclusion, it is certainly an oversimplification of the issue and an over-extension of the Court’s holding.

Respondent claims that to ascribe any weight to the facts that Bucio did not arrive voluntarily at the station and that his parent wasn’t present ignores the facts that he was not of driving age and his mother was either at the hospital or being interrogated herself. Again, like Respondent’s argument regarding the lateness of the hour, these arguments are unpersuasive. On the contrary, these facts are critically important as components of the whole, and Respondent’s attempts to explain them away fail. It simply does not matter why Bucio didn’t arrive voluntarily to the station or why his mother wasn’t present for his interrogation-what matters to the question of whether a reasonable person would have felt free to leave is that, in addition to all of the other extant facts, he was forced into a squad car and taken with his siblings to the police station, without a parent or other adult present.

Similarly, Respondent discounts the fact that Bucio was isolated from his siblings and questioned about the events of the night, again without a parent or other adult present, with the justification that it was easier to question him apart from his siblings and they might have influenced his version of events. Again, Respondent attempts to do away with these facts with reasonable motives and explanations. But, again, that is not the point. The reasons underlying the facts presented are not important to whether the person being questioned feels as though he may leave, and, consequently, they are not important to the Court’s analysis. Courts are to look at the objective facts as a whole, not the subjective underpinnings of those facts or the reasons why this fact presented itself instead of another. The ultimate question courts must answer is whether, under the circumstances surrounding the interrogation, a reasonable person would have felt restraint on freedom of movement akin to a formal arrest. Alvarado, 541 U.S. at 663, 124 S.Ct. 2140, quoting Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). Under the totality of the circumstances present here, a finding of non-custody is simply an unreasonable application of Supreme Court precedent. The justifications provided by Respondent to explain away the facts, facts which as a whole create a scenario in which a reasonable person would not have felt free to leave, are unpersuasive.

2. Bucio’s second statement was tainted by the first

Respondent objects to the Magistrate Judge’s conclusion that Bucio’s first, unwarned statement tainted his second, warned statement on the grounds that Elstad, not Seibert, controls, and the record does not support a finding of an involuntary confession, as Elstad requires (doc. 27).

Assuming, arguendo, that Elstad does control, the Miranda warnings given subsequent to Bucio’s un-warned first statement would remove the taint of that statement, provided the first statement was given voluntarily. See Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); United States v. Crowder, 62 F.3d 782, 786 (6th Cir.). Courts are to look at the totality of the circumstances when assessing the voluntariness of a confession, including, for example, the age, education and intelligence of the accused; whether he has been informed of his constitutional rights; the length and extent of the questioning; and the use of the physical punishment. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Respondent contends that there was no physical or psychological coercion or mistreatment when the detective first questioned Bucio; that the detective “chatted” with Bucio first, likely “put[ting] the youngster at ease”; that the detective only accused Bucio of lying one time; that it was not a lengthy interview; and that Bucio’s limited intellectual abilities did not interfere with his ability to voluntarily give a statement (doc. 27). However, under the totality of the circumstances, Bucio cannot be said to have given a voluntary confession, the “product of an essentially free and unconstrained choice” by him. See Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041. These circumstances include, inter alia, Bucio’s youth; the results of the battery of tests administered to assess his intellectual abilities, including the IQ subtests showing that he functions at the moderately retarded range in his reasoning and judgment ability; that Bucio did not voluntarily arrive at the station; that he had limited education and that English was not his primary language; that he did not have sufficient experience with law enforcement to have been familiar with the process; and that no parent or other adult was present. The circumstances also include, as Respondent correctly notes, the short length of time of the interview and the fact that the detective did not repeatedly and threateningly accuse Bucio of lying. But looking at the situation as a whole, as the Court must, Bucio’s confession does not appear to have been the product of a free choice by him; it therefore would fail under Elstad.

Respondent’s objections under a Seibert analysis are likewise unpersuasive. Respondent distinguishes Seibert from the instant case on the basis that, unlike in Seibert, the detective here did not deliberately employ the question-first, warn-later technique in an attempt to thwart Miranda (doe. 27). Of course, as noted above, this is only relevant under Justice Kennedy’s concurrence. But, as the Magistrate Judge correctly concluded, whether under Justice Kennedy’s opinion or the plurality opinion, the Miranda warnings given after the first statement were not effective in removing the taint of the unwarned statement.

Respondent attempts to factually distinguish Seibert but this is misguided; Seibert’s plurality provides the lower courts with five specific factors to assess in order to determine whether the late-administered Miranda warnings can be effective at accomplishing their objectives, and it is those factors, not factual distinctions, that guide this Court. Seibert, 542 U.S. at 615, 124 S.Ct. 2601. Sifting the facts of this case through the sieve of those factors leads the Court to the clear conclusion that the Miranda warnings given here were ineffective.

In Seibert, the Supreme Court explained that an effective Miranda warning would “advise the suspect that he had a real choice about giving an admissible statement at that juncture ... [and] reasonably convey that he could choose to stop talking even if he had talked earlier[.]” Seibert, 542 U.S. at 612, 124 S.Ct. 2601. The Court continued, “[U]nless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.” Id.

The Magistrate Judge’s analysis of the application of the five Seibert-plurality factors to this case is thoughtful, complete and persuasive. To the extent Respondent addresses these factors, she fails to make the case that the late-administered Miranda warnings served to reasonably convey that Bucio had a “real choice about giving an admissible statement” at that point, that he could actually “choose to stop talking even [though] he had talked earlier.” Respondent’s strongest argument is that, because the detective reviewed each Miranda right individually when he did finally administer the warnings, “carefully defín[ing] the words and terms, ensuring Bucio’s understanding,” a reasonable person would have understood the warnings to signal a break from the earlier questioning and that he had a genuine choice whether to continue talking (doc. 27). However, that alone is simply insufficient. As the Seibert plurality noted, “Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.” Seibert, 542 U.S. at 613, 124 S.Ct. 2601. Instead, the Court continued,

A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that ‘anything you say can and will be used against you,’ without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Id. at 613-14, 124 S.Ct. 2601, quoting Moran v. Burbine, 475 U.S. 412, 424, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

Respondent contends, in an attempt to factually distinguish Seibert from this case, that the detective here did not “confront! ] Bucio with his first unwarned statement or push[ ] him into acknowledging it once the Miranda warnings were administered” (doe. 27). She argues that the “absence of any reference to the earlier confession negated any impression that the second interview was a ‘mere continuation of the earlier questions and responses’ ” (Id.). However, as the Magistrate Judge noted, the detective here did not only reference the earlier interview but tied the pre-Miranda and post-Miranda statements together by saying, after the administration of the warnings, “We [are] going to go through the story again” (doc. 23). The Court construes this, as it must be construed, as an overt reference to Bucio’s earlier statement and as a fact that links the two statements together in a continuum. See Seibert, 542 U.S. at 617, 124 S.Ct. 2601.

Under Supreme Court law, it is simply not enough that the warnings were given with definitions here: more was needed in order for Bucio to know that his earlier, unwarned statement could not be used against him, that he had a genuine choice to stop talking even though he had already made a statement.

As the Magistrate Judge found, applying Justice Kennedy’s framework to this case yields the same result (doc. 23). Either the detective’s question-first, warn-second approach was a deliberate attempt to thwart Miranda, in which case curative measures were required and, as discussed above, not present. See Seibert, 542 U.S. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring). Or, the detective’s approach was not deliberate, in which case Elstad applies, and, as the Magistrate Judge found, Bucio’s statements fail under Elstad.

For the foregoing reasons, the Court is persuaded by the Magistrate Judge’s analysis and rationale, agrees with his conclusion, and finds that the state court’s ruling admitting Bucio’s statements was an unreasonable application of clearly established federal law. Therefore, having thoroughly reviewed the matter, the Court agrees with the Magistrate Judge’s recommended remedy, GRANTS Bucio’s writ of habeas corpus on Ground Two, and ORDERS that Bucio be released from custody if a new trial is not scheduled within ninety (90) days from the entry of this Order.

B. Ground Four

Bucio objects to the Magistrate Judge’s recommendation that a writ not issue with respect to Ground Four and takes issue with the conclusion of both the state court and the Magistrate Judge that the range of punishment facing a discretionary serious youthful offender is determined by the jury’s verdict, contending that this conclusion “eviscerates” the distinction between mandatory and discretionary blended sentencing (doc. 26). Bucio contends that under the state court and the Magistrate Judge’s interpretation, the range of punishment for both the mandatory and the discretionary serious youthful offenders is the same-and the maximum for each is some amount of adult time. This, Bucio argues, is incorrect; the correct interpretation would have a maximum range of punishment for mandatory serious youthful offenders including some amount of adult time, and a maximum range of punishment for discretionary offenders ending at adulthood. Anything beyond that statutory maximum range of punishment for a discretionary offender, Bucio argues, requires jury fact-finding because Apprendi requires that “... any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

Bucio additionally argues that the blending sentencing scheme is a violation of the fundamental fairness requirement of the due process clause of the federal Constitution because juveniles in the Ohio system cannot fairly be expected to engage in meaningful rehabilitation and succeed such that the adult portion of their sentences are not imposed because the Ohio Department of Youth Services (“ODYS”) has failed and continues to fail to provide the juveniles in its system with basic safety, education and health needs (doc. 26). The Court construes Bucio’s argument to be that given the “unconstitutional conditions of confinement in [0]DYS,” the Court should grant Bucio’s writ on this Ground Four because, ipso facto, the state’s sentence of confinement was fundamentally unfair and thus contrary to federal law (doc. 26).

1. Apprendi

The defendant in Apprendi pleaded guilty to state weapons charges, and a state judge conducted an evidentiary hearing wherein he found by a preponderance of the evidence that the defendant was motivated by racial bias; consequently, the judge applied New Jersey’s hate crimes statute to increase the defendant’s sentence above the maximum that could otherwise have been imposed. Apprendi, 530 U.S. at 474-97, 120 S.Ct. 2348. The Supreme Court found that the hate-crimes enhancement imposed by the judge was a violation of the defendant’s due process rights because, “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348. The relevant question is “one not of form, but of effect-does the required finding expose the defendant to a greater punishment than that authorized by the jury’s guilty verdict?” Id. at 494, 120 S.Ct. 2348. Put another way, “is the sentence allowed simply as a result of a conviction or plea or must the judge find additional facts first?” State v. Foster, 109 Ohio St.3d 1, 845 N.E.2d 470, 489 (2006) (finding unconstitutional components of Ohio’s adult sentencing scheme because judges were required to make specific findings before sentencing beyond that presumed by jury verdict).

In Blakely, the statutory maximum for the type of felony at issue was ten years; however, if no facts beyond those supporting the jury verdict were found by the judge, the statute provided that a defendant could not be sentenced above a “standard range” of forty-nine to fifty-three months. Blakely, 542 U.S. at 298-300, 124 S.Ct. 2531. The Court found that, because the sentencing judge could not have imposed a sentence outside that “standard range” without finding an additional fact, the standard range, not the ten years, was the actual “statutory maximum” for Apprendi purposes. Id. at 304, 124 S.Ct. 2531.

Bucio contends that the findings the judge must make to sentence a juvenile who falls in the discretionary category to adult time are analogous to the impermissible findings in Blakely and Apprendi: without those judge-made findings, the maximum Bucio could have received was a juvenile disposition until the age of twenty-one. Thus, Bucio reads Ohio’s serious youthful offender statute to provide a “statutory maximum” for Apprendi purposes of twenty-one years for juveniles in the discretionary category.

Under Ohio law, a sentence involving a stayed adult portion is permissible for a discretionary offender only upon the judge’s finding that the length of time, level of security and types of programming available in the juvenile system are not adequate for the juvenile court to reasonably expect that the purposes of juvenile sentencing will be met in light of the nature and circumstances of the violation and the history of the child. O.R.C. § 2152.13(D)(2)(a)®; O.R.C. § 2152.01(A) (purposes of sentencing are “to provide for the care, protection, and mental and physical development of children subject to this chapter, protect the public interest and safety, hold the offender accountable for the offender’s actions, restore the victim, and rehabilitate the offender.”). If the judge does not make such a finding, a discretionary offender cannot be given an adult sentence.

Therefore, it appears as though an adult portion of a blended sentence for a discretionary juvenile offender is not available based simply on a conviction or plea; instead, judicial fact-finding is required. Critically, however, neither Apprendi nor Blakely involved judicial findings that subjected a juvenile to the potential of an adult sentence. Indeed, there is no Supreme Court authority on point. On a habeas petition, the only questions before the Court are whether the state court’s decision involved an unreasonable application of clearly established Supreme Court law or whether the decision was contrary to such law. Therefore, the question here is whether the Apprendi language regarding “fact[s] that increase[ ] the penalty for a crime beyond the prescribed statutory maximum,” 530 U.S. at 490, 120 S.Ct. 2348, clearly applies to the findings required of the Ohio juvenile judge.

On similar questions, reasonable minds have reached differing results. Compare Commonwealth v. Quincy Q., 434 Mass. 859, 753 N.E.2d 781, 789 (2001) (overruled on other grounds) (statute requiring judicial fact-finding in order to increase juvenile punishment unconstitutional) and New Mexico v. Rudy B., 147 N.M. 45, 216 P.3d 810, 824 (N.M.App.2009) (holding New Mexico’s juvenile sentencing scheme unconstitutional as violative of Apprendi because it required that the judge, not the jury, determine whether a juvenile would be amenable to rehabilitation with solely a juvenile sentence) with State v. Kalmakoff, 122 P.3d 224, 227 (Alaska Ct.App.2005) (declining to find statute unconstitutional where judge found facts that permitted juvenile to be tried as adult and stating that the “overwhelming weight of authority at this time concludes that Apprendi does not apply to juvenile waiver proceedings”) and State v. D.H., 120 Ohio St.3d 540, 901 N.E.2d 209 (2009) (finding Ohio’s blended sentencing statute constitutional).

The crucial point is that neither Apprendi nor Blakely speaks to the types of facts being found by the Ohio juvenile judges and the Apprendi’s fact-finding language therefore does not clearly apply to the type of facts found by the Ohio juvenile judges here. Therefore, the Court cannot say that the state court’s decision was contrary to these decisions nor that it was an unreasonable application thereof. Whether the Court might have reached a different result or whether the state court’s decision was incorrect are not relevant on a habeas petition. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

2. Due Process

On a due process review, the Court reaches the same result. Bucio explicitly makes an argument that his sentence violates due process because of the dysfunction of the ODYS. In addition, however, clearly established federal law holds that it is the Fourteenth Amendment’s due process clause that governs juvenile proceedings, not solely the Sixth Amendment, so even absent that argument, a due process inquiry would be called for. See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Schall v. Martin, 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984). Unlike the Sixth Amendment, which makes specific, discrete guarantees, the due process clause requires “fundamental fairness,” a concept that is much more fluid. Id. Therefore, under a due process inquiry, the ultimate question for this Court is whether the state court’s decision upholding Ohio’s blended sentence scheme was contrary to or an unreasonable application of clearly established law regarding fundamental fairness in the juvenile context.

The Supreme Court has held that many of the basic constitutional protections afforded criminal defendants via the Sixth Amendment also apply to juveniles via the due process clause. See, e.g., Gault, 387 U.S. 1, 87 S.Ct. 1428 (notice of charges, right to counsel, right to confrontation and cross-examination). However, McKeiver’s plurality expressly held that “trial by jury in the juvenile court’s adjudicative stage is not a constitutional requirement.” McKeiver, 403 U.S. at 545, 91 S.Ct. 1976. The McKeiver plurality held that “fundamental fairness” demanded only accurate fact-finding, which could be done in the juvenile context either by a judge or a jury. Id. at 543, 91 S.Ct. 1976. The plurality did not present rationale and analysis for the lower courts but instead set forth a number of reasons, or justifications, for its decision. Id. at 545-50, 91 S.Ct. 1976.

Among the plurality’s reasons were fears that jury trials would disrupt the traditional juvenile court and adversely affect the “intimate, informal and protective proceeding[s]” and that jury trials would make the juvenile system procedurally indistinguishable from the adult system. Id. at 545-46, 91 S.Ct. 1976. Irrespective of whether these fears were valid at the time, the equation .is clearly quite different when the state has chosen by statute to extend to juveniles the option of a jury trial. In Ohio, the serious youthful offender statute guarantees nearly all of the rights constitutionally guaranteed to adult criminal defendants, including the rights to a grand jury determination of probable cause, to an open and speedy trial by jury, to bail, to counsel and to raise the issue of competency. O.R.C. § 2152.13(C)(1), (2). Ohio, then, has by statute created juvenile proceedings that mimic adult criminal proceedings in nearly all ways, and the Court questions McKeiver’s relevance in such a situation.

However, this Court’s thorough review of the relevant law has shown that there is a lack of clearly established Supreme Court law on the issue of juvenile dispositions in general, the effect of statutorily granting certain constitutional rights to juveniles but not others, and on the fundamental fairness of judges finding certain facts before sentencing juveniles to adult time. Consequently, the Court simply cannot find that the state court’s decision was an unreasonable application of federal law.

Regarding Bucio’s argument concerning the dysfunction of the ODYS, the Court finds Bucio’s description of the condition of the DYS disturbing but is encouraged by the steps the ODYS has taken to rectify the situation. Regardless, the question before the Court is not whether the ODYS is adequately serving the needs of the public and the juveniles in its care. It is, again, whether the state court unreasonably applied clearly established federal law, or acted contrary to that law, or based its decision on an unreasonable determination of the facts in light of the evidence presented in the state proceedings. While his policy arguments may raise important questions, Bucio simply fails to address this fundamental question. The Court is unwilling to take such a sweeping position in the instant case on the strength of this argument. Bucio has simply not persuasively argued that sentencing Bucio to a blended sentence given the conditions of ODYS somehow constitutes an unreasonable application of federal law.

3. Conclusion on Ground Four

For the foregoing reasons, the Court finds that a writ should not issue with respect to Ground Four. However, Bucio’s constitutional challenge to Ohio’s blended sentencing scheme is colorable. Therefore, because reasonable jurists may find the Court’s assessment of Bucio’s constitutional claims “debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), issuance of a certificate of appealability of this order pursuant to 28 U.S.C. § 2253(c) is GRANTED.

C. Ground Six

Neither Respondent nor Bucio objects to the Magistrate’s Report and Recommendation with respect to Ground Six. Having thoroughly reviewed the matter, the Court is persuaded by the Magistrate Judge’s analysis and rationale and ADOPTS his recommendation with respect to Ground Six. Therefore, the Court ORDERS that the plea bargain that had been previously offered to Bucio by the government, which was not conveyed to Bucio by his trial counsel, be reinstated in its entirety and that, should Bucio accept the bargain, Bucio be sentenced according to the terms of the agreement.

VI. Conclusion

The Court finds that the Magistrate Judge’s Report and Recommendation is thorough and well-reasoned. For the foregoing reasons, the Court ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation with respect to Ground Two, GRANTS Bucio’s writ of habeas corpus on Ground Two, and ORDERS that Bucio be released from custody if a new trial is not scheduled within ninety (90) days from the filing of this Order; ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation with respect to Ground Six, GRANTS Bucio’s writ of habeas corpus on Ground Six, and ORDERS that the plea bargain that had been previously offered to Bucio by the government be reinstated in its entirety and that, should Bucio accept the bargain, he be sentenced according to the terms of the agreement; and ADOPTS and AFFIRMS the Magistrate Judge’s Report and Recommendation with respect to Ground Four, DENIES Bucio’s writ of habeas corpus on Ground Four, and ORDERS that a certificate of appealability shall issue in respect thereof.

SO ORDERED.

REPORT AND RECOMMENDATION

TIMOTHY S. BLACK, United States Magistrate Judge.

Petitioner, a state prisoner, brings this case through counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the petition (Doc. 1), respondent’s return of writ and exhibits thereto (Doc. 10), and petitioner’s traverse to the return of writ. (Doc. 19).

I. FACTS

This case involves the following facts, as summarized by the Twelfth District Ohio Court of Appeals:

In June 2003, appellant’s mother left her apartment, leaving appellant in charge of his four younger siblings. Appellant was 13 years old at the time. His siblings were ages ten years, three years, two years, and 13 months. While their mother was gone, appellant and his siblings were to clean two bedrooms, prepare dinner, and bathe. At some point after dinner, appellant called his ten-year-old brother, A.B., and told him that something was wrong with their 13-month-old brother, J.R. When it was apparent that J.R. was not breathing, appellant performed mouth-to-mouth resuscitation. A.B. subsequently administered chest compressions. J.R. was not responsive. Appellant and A.B. looked for the phone, but could not find it. Appellant then brought J.R. to the couch in a blanket, where the children prayed as they waited for their mother to return.

The children’s mother eventually arrived home with her boyfriend. At that time, J.B. told his mother that J.R. had fallen down the stairs. After examining J.R., appellant’s mother called 9-1-1. Emergency personnel soon arrived, and transported J.R. to the hospital via ambulance. Appellant’s mother rode in the ambulance to the hospital, while the police transported appellant and his other siblings to the police station. J.R. subsequently died at the hospital. Detective Hayes of the Hamilton Police Department spoke with the children at the police station. Because appellant was the oldest child, Detective Hayes interviewed him first. According to Detective Hayes, appellant was not suspected of a crime at that time. Appellant initially told Detective Hayes that J.R. had fallen down the stairs. Detective Hayes questioned the veracity of that statement, and informed appellant that J.R. had died. Appellant then cried and said that he was sorry. Appellant told Detective Hayes that he struck J.R. with a metal bar, and choked J.R. around the neck. After appellant made those statements, Detective Hayes read appellant his Miranda rights. Appellant subsequently waived his Miranda rights and signed a statement consistent with his oral statements.

(Doc. 10, Exh. 31 at 2-3).

II. PROCEDURAL HISTORY

On June 17, 2003, two complaints were filed in the Butler County, Ohio Juvenile Court, one alleging that Bucio was a delinquent child for committing the murder of his 13 month old brother and the other alleging delinquency for his committing domestic violence against his brother. (Doc. 10, Exhs. 1 and 2). Detective Mark Hayes was named as the complainant and issuing officer. (Id.). On June 18, 2003, Bucio entered a plea of “not true” to both allegations. (Doc. 10, Exh. 3). The juvenile court appointed a priv