Loper Bright Does Not Undermine AEDPA: Sixth Circuit Reaffirms “Double Deference” on Strickland Habeas Claims and Upholds Use of Pre-Arrest Request for Counsel

Introduction

In Jason Michael Miles v. Michelle Floyd, Warden, the Sixth Circuit (unpublished) affirmed the denial of federal habeas relief to a Michigan inmate convicted of two counts of second-degree criminal sexual conduct. The appeal centered on three ineffective-assistance-of-counsel theories under Strickland v. Washington and a threshold challenge to the constitutionality of AEDPA deference in light of the Supreme Court’s administrative law decision in Loper Bright Enterprises v. Raimondo. The panel rejected the Loper Bright argument, reinforced AEDPA’s “highly deferential” standard (especially when coupled with Strickland’s own deference), and found no deficient performance on any of the three asserted attorney errors: not retaining a memory/suggestibility expert, playing an unredacted police interview that captured Miles’s pre-arrest request for counsel, and not seeking the child complainant’s counseling records.

At stake were foundational federal habeas principles—what “clearly established Federal law” requires under 28 U.S.C. § 2254(d), how “double deference” operates in practice for Strickland claims, and how pre-arrest conduct during noncustodial interviews may be used at trial. The case offers immediate guidance for habeas practitioners, criminal defense counsel, and trial courts confronting decisions about expert strategy, interrogation recordings, and confidential therapy records in child sexual assault prosecutions.

Summary of the Opinion

• The Sixth Circuit affirmed the district court’s denial of habeas relief, applying AEDPA deference to the Michigan Court of Appeals’ merits decisions.
• The panel held that Loper Bright (which abrogated Chevron deference to federal agencies) did not disturb AEDPA’s statutory deference to state-court adjudications of federal claims.
• On ineffective assistance, the court found no deficient performance:
  • Counsel’s decision not to present a memory/suggestibility expert (after consulting one whose views aligned with the State’s expert) was a reasonable strategic choice tied to a chosen defense of intentional fabrication.
  • Playing the entire noncustodial interview—including Miles’s pre-arrest request for counsel—was a strategic response to the detective’s testimony about his demeanor; use of pre-arrest silence was not barred under Salinas v. Texas.
  • Not seeking the complainant’s therapy records was not constitutionally deficient under clearly established Supreme Court precedent, particularly where the records were tied to an alternative (rejected) defense theory and there was no showing akin to Brown v. Smith.

Analysis

Precedents Cited and Their Role

• AEDPA core cases:
  • 28 U.S.C. § 2254(d)(1)–(2): Limits habeas relief to state adjudications that are contrary to, or involve unreasonable applications of, clearly established Supreme Court law, or are based on unreasonable factual determinations.
  • Williams v. Taylor: Defines “contrary to” and “unreasonable application” benchmarks.
  • Davis v. Ayala and Brown v. Davenport: Emphasize AEDPA’s “highly deferential” review of state-court decisions and the narrowness of habeas relief.
  • Harrington v. Richter: Articulates the “fairminded jurist” standard and underscores deference to reasonable state-court decisions; frames strategy deference under Strickland.
  • Andrew v. White (per curiam, 2025): Quoted for the “no fairminded jurist would agree” articulation of unreasonableness, reinforcing Richter’s lens.
• Strickland framework and deference cases:
  • Strickland v. Washington: Two-pronged test—deficient performance and prejudice; strong presumption of reasonable strategy.
  • Dunn v. Reeves: Clarifies “double deference” when Strickland claims are adjudicated by a state court; federal habeas courts owe deference both to counsel’s strategic choices and to the state-court adjudication of those choices.
  • Padilla v. Kentucky: Reiterates that meeting Strickland’s standard is demanding.
• Loper Bright and deference:
  • Loper Bright Enterprises v. Raimondo: Abrogated Chevron deference in the administrative law context under the APA; the panel explains why that has no effect on AEDPA’s distinct statutory regime.
  • Agostini v. Felton: Appellate courts should follow controlling Supreme Court precedent unless the Supreme Court itself overrules it; used to decline petitioner’s implied-overruling argument.
  • Williams and Upshaw v. Stephenson: Emphasize that habeas courts still “say what the law is,” while AEDPA channels when relief may issue.
• Silence, counsel requests, and use at trial:
  • Miranda v. Arizona: Bars use of post-Miranda silence following custodial warnings as substantive evidence.
  • Salinas v. Texas (plurality): Permits use of pre-arrest silence unless the privilege is expressly invoked; a defendant who answers selectively pre-arrest without invoking the Fifth can have that silence used against him.
  • Abby v. Howe (6th Cir.) and McGraw v. Holland (6th Cir.): Applied in the Sixth Circuit to pre-arrest silence issues.
• Victim counseling records:
  • People v. Stanaway (Mich.): Sets state-law threshold for in camera review of confidential counseling records—defendant must show a good-faith belief, grounded in demonstrable fact, that records likely contain material defense information.
  • Brown v. Smith (6th Cir.), overruled on other grounds by Cullen v. Pinholster: Found deficiency where the counselor herself disbelieved the complainant and offered helpful notes; distinguished in Miles because no comparable showing existed.
  • Cullen v. Pinholster: Limits federal habeas review to the state-court record for § 2254(d) analysis.

Legal Reasoning

The panel structures its reasoning in two layers. First, it declines the invitation to jettison AEDPA deference post–Loper Bright, explaining that Chevron’s demise in the federal agency context says nothing about Congress’s habeas framework governing federal review of state convictions. Courts still “decide all relevant questions of law” but under AEDPA may grant relief only where a state decision is contrary to or unreasonably applies clearly established Supreme Court precedent, or rests on an unreasonable factual determination. That is a merits filter, not a surrender of judicial independence.

Second, the court applies Strickland through AEDPA’s lens (“double deference”) to each ineffective-assistance claim, asking not whether counsel’s choices were the best, but whether there is any reasonable argument that counsel satisfied Strickland, and whether the state court’s rejection of the Strickland claim was so wrong that no fairminded jurist could agree.

1) Expert on Memory and Suggestibility

Defense counsel investigated a memory/suggestibility approach at Miles’s request, consulted an expert whose views aligned with the State’s expert, and then elected a different, incompatible defense theory: intentional fabrication. That strategy was coherent and partially successful—the jury acquitted on the most serious counts. Under Strickland, strategic choices made after reasonable investigation are entitled to strong deference; under AEDPA, the state court’s acceptance of that strategy choice must be upheld unless it was beyond the bounds of fairminded disagreement. The panel therefore found no deficiency and did not reach prejudice.

2) Playing the Unredacted Interview (Including the Pre-Arrest Request for Counsel)

The detective testified that Miles grew anxious and abruptly ended the interview after asking for an attorney. Defense counsel opted to play the entire recording so the jury could see Miles’s demeanor and the interview’s ending for itself, countering the detective’s portrayal. Two distinct points support the Sixth Circuit’s rejection of the Strickland claim:

• Substantive use of pre-arrest conduct: Because the interview was voluntary and noncustodial, and Miles did not expressly invoke the right to remain silent, the prosecution’s use of his pre-arrest silence (and his statement that he “would need to speak with an attorney”) as part of its narrative was not barred under Salinas. Thus, counsel was not ineffective for failing to object on Fifth Amendment grounds.
• Strategic use of the full video: Faced with testimony about demeanor, counsel’s “show, don’t tell” choice was a reasonable tactic to let jurors independently assess the video. Even though the clip revealed Miles’s request for counsel, the court viewed this as a permissible strategic tradeoff in context. No clearly established Supreme Court precedent required redaction or rendered such a decision deficient.

3) Failure to Seek the Complainant’s Counseling Records

Under Michigan’s Stanaway, in camera review of therapy records requires a showing—grounded in demonstrable fact—that the records likely contain material information necessary to the defense. Miles argued that therapy records could have documented evolving disclosures or motives tied to behavioral issues. The Michigan Court of Appeals concluded that the records were tightly tied to an alternative “memory contamination” theory the defense rejected at trial and, therefore, were not necessary to the chosen intentional-fabrication defense.

While the Sixth Circuit acknowledged that such records could conceivably have supported the chosen theory (for example, by evidencing the evolution of a false accusation), it ultimately held that, under § 2254(d)(1), Miles had not identified clearly established Supreme Court law making counsel’s decision not to seek the records constitutionally deficient. Brown v. Smith—where a counselor herself disbelieved the complainant and offered helpful notes—was materially distinguishable; there was no comparable proffer here. Without a Supreme Court holding on point, AEDPA forecloses relief.

Impact

• AEDPA remains untouched by Loper Bright: Habeas petitioners should not expect administrative-law developments to relax § 2254(d). The Sixth Circuit’s opinion provides a clear roadmap for lower courts to continue applying AEDPA deference exactly as before.
• “Double deference” retains decisive force: When a state court has adjudicated Strickland claims, petitioners face the compounded hurdle of deference to counsel’s strategy and to the state court’s resolution. Demonstrating not merely error, but unreasonableness beyond fairminded disagreement, remains the operative standard.
• Noncustodial interview dynamics matter: In the Sixth Circuit, a defendant’s pre-arrest request for counsel during a voluntary interview does not automatically bar prosecutorial use of that fact or associated silence. Defense teams should plan interrogation strategies—redactions, limiting instructions, or live testimony—to mitigate inference risks, and weigh carefully the costs and benefits of playing full recordings.
• Expert selection is part of strategy, not a per se duty: Counsel’s reasonable investigation, followed by a strategic decision to forgo a memory/suggestibility expert in favor of an incompatible theory, will typically survive Strickland under AEDPA. Defense counsel should document consultations and reasons for strategic pivots.
• Counseling records require concrete proffers: Absent evidence comparable to Brown v. Smith (e.g., a counselor who doubts the allegation and offers helpful notes), failure to seek therapy records is unlikely to constitute deficient performance under clearly established Supreme Court law—especially when the request primarily supports an abandoned defense theory. In jurisdictions like Michigan, practitioners must build specific, demonstrable showings to satisfy thresholds like Stanaway’s good-faith/materiality requirement.

Complex Concepts Simplified

• AEDPA deference (28 U.S.C. § 2254(d)): A federal habeas court can grant relief only if the state court’s decision is contrary to, or an unreasonable application of, clearly established Supreme Court law, or based on an unreasonable view of the facts. It is not enough that the federal court would have decided the case differently.
• “Double deference” on Strickland claims: First, Strickland itself presumes counsel acted reasonably; second, AEDPA presumes the state court’s Strickland ruling is correct unless no fairminded jurist could agree with it. This compound lens is extraordinarily hard for petitioners to overcome.
• “Clearly established Federal law”: Only holdings of the U.S. Supreme Court count. Lower-court decisions may be persuasive but cannot set the benchmark for § 2254(d)(1).
• “Contrary to” vs. “unreasonable application”: “Contrary to” means the state court applied a rule opposite to Supreme Court precedent or reached a different result on materially indistinguishable facts. “Unreasonable application” means the state court identified the right rule but applied it in a way that is not just wrong, but beyond what fairminded jurists could accept.
• Pre-arrest silence and requests for counsel: The Fifth Amendment prohibits penalizing a suspect for post-Miranda silence during custodial interrogation. But pre-arrest silence (including a noncustodial request to speak to a lawyer) can be used unless the suspect expressly invokes the right to remain silent. A request for counsel in a noncustodial setting does not trigger Miranda protections.
• “Opening the door”: When one side introduces a topic (e.g., demeanor during an interview), the other side may introduce otherwise problematic evidence to rebut or contextualize it. Here, playing the full video was framed as a reasonable response to the detective’s portrayal.
• In camera review of therapy records (Michigan’s Stanaway): Defendants must present concrete reasons to believe the records contain material, necessary information for the defense. Speculation or fishing expeditions are insufficient.

Conclusion

Miles v. Floyd reaffirms core habeas principles in the Sixth Circuit: AEDPA deference endures post–Loper Bright; Strickland claims decided by state courts are reviewed under a “double deference” framework; and tactical choices—whether to forgo a memory expert, to play a full interview recording that includes a pre-arrest request for counsel, or to bypass therapy-record requests tied to an abandoned theory—will rarely yield federal habeas relief absent clearly established Supreme Court law to the contrary. The opinion underscores the importance of contemporaneous strategic documentation by defense counsel and provides practical guidance for handling noncustodial interviews and seeking confidential records in sex-offense prosecutions. Although unpublished and nonprecedential, the decision is a clear signal: AEDPA’s stringent gatekeeping remains fully operative, and fairminded strategic choices by trial counsel will generally withstand collateral attack.