Wesley v. Hepp

89 F.4th 987

Johnnie Mertice WESLEY, Petitioner-Appellant, v. Randall HEPP, Respondent-Appellee.

No. 22-2968

United States Court of Appeals, Seventh Circuit

Argued September 19, 2023

Decided January 5, 2024

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:18-cv-52-pp — Pamela Pepper, Chief Judge.

Brian P. Mullins, Attorney, Office of the Wisconsin State Public Defender, Milwaukee, WI, for Plaintiff-Appellant.

Jennifer L. Vandermeuse, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before Easterbrook, Wood, and Kirsch, Circuit Judges.

Kirsch, Circuit Judge.

On February 6, 2014, Wisconsin police brought Johnnie Wesley in for questioning related to an ongoing murder investigation. During an initial interrogation, Wesley invoked his right to remain silent, and the interrogation ceased. Nine hours later, officers attempted to interrogate Wesley a second time; again, he indicated he did not wish to speak. On February 7, officers interrogated Wesley a third time. During that interrogation, Wesley made these statements: (1) "Ain't nothing to talk about doe."; (2) "I ain't got shit to say about no homicide."; and (3) "Can I go back to my cell now?" Later, during the same interrogation, Wesley made incriminating statements implicating himself in the homicide. After the State of Wisconsin charged Wesley with felony murder, he moved to suppress the incriminating statements on two grounds. First, he argued that the officers did not scrupulously honor his initial invocation of his right to remain silent. Second, he argued that he unequivocally invoked his right to remain silent during the third interrogation. The trial court denied his motion, the Wisconsin Court of Appeals affirmed, and the Wisconsin Supreme Court denied Wesley's petition for review. Wesley then petitioned for a writ of habeas corpus in the Eastern District of Wisconsin. His petition was dismissed, and this appeal followed. Because the Wisconsin Court of Appeals reasonably applied Supreme Court precedent to Wesley's case, we affirm.

I

Wisconsin police took Johnnie Wesley into custody on February 5, 2014, in connection with the murder of Bruce Lloyd. The next day, around 11:43 am, Detective Katherine Spano interrogated Wesley. Detective David Dalland was also present, though he did not ask any questions. After a brief back-and-forth, the following exchange occurred:

SPANO: Okay—so you don't want to talk to me right now?

WESLEY: About no murder no.

SPANO: You don't want to hear the facts or the story—

WESLEY: About no murder no—

SPANO: —or the reasons of why we believe you were responsible?

WESLEY: No.

The interrogation ended shortly after this exchange; Miranda warnings were not given.

Approximately nine hours later, at 9:27 pm, Detective Kevin Klemstein tried to interrogate Wesley a second time, but Wesley still did not wish to speak. That interrogation did not proceed.

On February 7, at around 2:50 pm, Detective Dalland, who was present but silent at the first interrogation, and Detective Kent Corbett initiated a third interrogation with Wesley. Before giving Miranda warnings, the following conversation took place:

DALLAND: Look, listen, let me get through what I need to do first and then we can talk if that's what you want. Okay. Is that fair?

WESLEY: Ain't nothing to talk about doe. That's what I'm sayin. Ya'll steady questioning me about nothing I don't know nothing about. I don't do nothing. I sit in the house all day. I don't do nothing.

DALLAND: And if that's what you want to tell me, then that is your right and I am going to listen. Okay. But like I said, I have our little rules that we have to go by okay?

WESLEY: yea . . . I feel where you coming from and all but shit.

Miranda warnings were then given, and the interrogation continued. Detective Dalland tried to discuss the homicide with Wesley:

DALLAND: Having those rights in line is it okay if we—

WESLEY: Ughh—you can say—

DALLAND: —exchange information? Now can I ask you questions?

WESLEY: You can say what you want but it just, I ain't got shit to say about no homicide. I don't kill people. I never attempted to kill nobody I never

. . . I don't do that. I'm not that type of person. I just lost my momma November 7.

DALLAND: And I am sorry for your loss.

. . . DALLAND: Well, you can pick and choose whatever you choose to respond to, and what you don't want to respond to. I am asking for a yes or no. Do you—are you—

WESLEY: I ain't got shit to talk about no homicide because I ain't know nothing about it. That's why I'm telling you now. You asking me questions about this homicide case I know nothing about it officer.

DALLAND: Okay.

WESLEY: Honest to God truth I don't know nothing.

Upon further questioning, Wesley continued to deny involvement in Lloyd's death but admitted he had bought marijuana from Lloyd months earlier. Detective Corbett then took charge of questioning and indicated that he had evidence connecting Wesley to the murder, which led to the following exchange:

WESLEY: I don't know—that's why I'm trying to tell ya'll I don't know shit about shit—I been telling ya'll that for two days I don't know. All I know is ya'll got the wrong person. I still ain't got my Newport—and we've been sitting here talking for at least 30 minutes. Chips and water but no Newport.

CORBETT: You're two up on me. I don't have water or chips.

[four to five seconds of silence]

WESLEY: Can I got [sic] back to my cell now?

CORBETT: Is that really going to help you?

WESLEY: Is me telling ya'll something I don't know going to help me? Well, it isn't going to help me. But me finding some information can that help me?

Eventually, Detective Dalland kept questioning Wesley, asking him if he had planned to rob or shoot someone the night of Lloyd's death. Wesley admitted that he had attempted to rob Lloyd at gunpoint, that Lloyd tried to wrestle the gun away from Wesley, and that Lloyd was shot during the struggle.

Based on these admissions, the State of Wisconsin charged Wesley with one count of felony murder. Wesley moved to suppress his admissions, arguing that (1) his initial invocation of silence was not scrupulously honored, see Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and (2) he unequivocally invoked his right to remain silent during the third interrogation, see Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). After the trial court denied Wesley's motion, he pleaded guilty. The Wisconsin Court of Appeals affirmed his conviction, State v. Wesley, 371 Wis. 2d 563, 884 N.W.2d 534 (Wis. Ct. App. 2016), and the Wisconsin Supreme Court denied his petition for review.

Pursuant to 28 U.S.C. § 2254, Wesley petitioned for a writ of habeas corpus. The district court denied Wesley's petition but granted a certificate of appealability. This appeal followed.

II

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal courts may issue writs of habeas corpus for petitioners in state custody. Makiel v. Butler, 782 F.3d 882, 896 (7th Cir. 2015). "A petitioner in state court custody is entitled to a writ of habeas corpus 'only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.' " Pruitt v. Neal, 788 F.3d 248, 262-63 (7th Cir. 2015) (quoting 28 U.S.C. § 2254(a)). A federal court may grant a habeas application with respect to claims adjudicated on the merits only if a state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). In his petition, Wesley only brings constitutional challenges under § 2254(d)(1).

While we review a district court's denial of a § 2254 petition de novo, "we review the decision of the last state court to address the merits of the petitioner's claim . . . with deference." Pruitt, 788 F.3d at 264 (citation omitted). That deference is substantial. "To grant the petition, we must conclude that the state court unreasonably applied Supreme Court precedent, not our own." Flint v. Carr, 10 F.4th 786, 796 (7th Cir. 2021) (citation omitted). The petitioner must show "far more than that the state court's decision was merely wrong or even clear error." Smith v. Boughton, 43 F.4th 702, 708 (7th Cir. 2022) (cleaned up). "If this standard is difficult to meet, that is because it was meant to be." Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Simply put, § 2254 provides relief only when the state court's holding was objectively unreasonable. Smith, 43 F.4th at 708 (noting that a state court errs only when no "fair-minded jurists" could disagree that the state court's decision conflicted with Supreme Court precedent).

Wesley's petition argues that the Wisconsin Court of Appeals misapplied two Supreme Court cases: (1) Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and (2) Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). We address each argument in turn.

A

Wesley first asserts that his right to remain silent was not scrupulously honored after he invoked it during the first interrogation. In Mosley, the Supreme Court "held that the admissibility of statements obtained after a defendant invokes his right to remain silent is dependent on whether the defendant's right to cut off questioning was 'scrupulously honored.' " United States v. Montgomery, 555 F.3d 623, 633 (7th Cir. 2009) (quoting Mosley, 423 U.S. at 103, 96 S.Ct. 321). The Supreme Court did not lay out explicit factors for this determination, but courts across the country have extrapolated their own non-exhaustive factors based on the facts and reasoning of the case....