## Facts

- Jeffrey Maxon was accused of molesting his stepdaughter and became the target of a police investigation.
- A police officer called Maxon directly and told him a complaint had been made against him and the officer wanted Maxon’s “side of the story.”
- During the call, Maxon at one point appeared not to understand why the police wanted to talk to him, but he agreed to come to the police department at 1 p.m. that same day.
- Maxon never appeared for the agreed interview.
- At Maxon’s criminal trial, the prosecution elicited testimony from the officer about the phone call and Maxon’s failure to show up.
- Maxon objected, arguing that letting the jury hear about his nonappearance was an improper use of “silence” as evidence of guilt in violation of the Fifth Amendment.
- The prosecutor responded that the testimony was offered to show the officer’s investigative efforts and to explain that the officer tried to give Maxon an opportunity to provide his account.
- Maxon was convicted, pursued state-court review, and then filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254.
- In federal court, Maxon again argued that admission of the nonappearance testimony (and the related argument) violated his Fifth Amendment right to remain silent.

## Issues

1. In a federal habeas case governed by AEDPA, did the state court unreasonably apply clearly established Supreme Court law by allowing testimony (and related argument) that Maxon failed to appear for a voluntary, prearrest police interview after agreeing to come in?

## Decision

- The federal district court denied Maxon’s § 2254 petition.
- The court concluded that, under AEDPA’s deferential standard, Maxon had not shown the state court’s rejection of his Fifth Amendment claim was contrary to, or an unreasonable application of, clearly established Supreme Court precedent.
- The court therefore declined to grant habeas relief based on the trial evidence and argument concerning Maxon’s failure to appear at the police station.

## Legal Principles

- A federal court may grant habeas relief under 28 U.S.C. § 2254 only if the state-court decision was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court, or was based on an unreasonable determination of the facts.
- Supreme Court cases most directly limiting prosecutorial use of “silence” address a defendant’s trial silence (commenting on a defendant’s failure to testify) or post-arrest/post-*Miranda* silence; those decisions do not clearly establish a broad rule barring all references to prearrest, noncustodial noncooperation.
- When the challenged testimony is used to explain the course of an investigation (for example, that an officer attempted to interview a suspect and the suspect did not appear), a state court may treat it as background evidence rather than as unconstitutional punishment for exercising the privilege against self-incrimination.
- On AEDPA review, it is not enough that a federal court might view the Fifth Amendment question differently on direct review; the petitioner must show the state court’s decision was outside the range of reasonable applications of Supreme Court holdings.

## Conclusion

Maxon sought federal habeas relief after his trial included testimony that he agreed to meet police to give his side of the story but failed to appear. The district court denied the petition, holding that AEDPA barred relief because Supreme Court precedent did not clearly and directly forbid the state court from admitting this prearrest, noncustodial nonappearance evidence and allowing the prosecutor to argue it as part of the investigation’s narrative.


Maxon v. Bell, 2010 WL 7698660 (2010)