Frederick G. Jackson v. Matthew J. Frank , 1

1 Pursuant to Federal Rule of Appellate Procedure 43(c), Matthew
J. Frank, the current Secretary of the Wisconsin Department of
Corrections, has been substituted for Jon E. Litscher as Respon-
dent in this case.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1979
F REDERICK G. J ACKSON ,
Petitioner-Appellee,
v.
M ATTHEW J. F RANK , 1
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 1587—Lynn Adelman, Judge.
____________
A RGUED S EPTEMBER 12, 2002—D ECIDED N OVEMBER 6, 2003
____________
Before R IPPLE , R OVNER , and W ILLIAMS , Circuit Judges.
W ILLIAMS , Circuit Judge. When Frederick Jackson told
the detective questioning him that he wanted a lawyer
“right now,” the detective responded that he could not
accommodate Jackson’s request and that he would have to
end the interview. The detective’s statement to Jackson
was, at the very least, misleading: under Wisconsin law

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2 No. 02-1979
2 The record does not explain how long Jackson remained in the
hospital or why he was not interviewed for four days after he was
arested. We are similarly left in the dark as to the reason he did
not receive a probable cause hearing until June 5, well past the
presumptive 48-hour limit set out in County of Riverside v.
McLaughlin, 500 U.S. 44, 54-60 (1991), but Jackson does not raise
a Riverside-related claim in this appeal.
public defenders are available to suspects in custody on an
emergency basis. After his conversation with the detective,
Jackson waived his Miranda rights and confessed. He later
moved to suppress his confession, arguing that his waiver
was not voluntary due to the detective’s misstatement of
Wisconsin law. The Wisconsin trial and appellate courts
found no Miranda violation, and Jackson filed a writ of
habeas corpus, which the district court granted. We find
that the detective’s failure to follow state law does not give
rise to habeas relief and the Wisconsin appellate court’s
decision was not objectively unreasonable in light of the
Supreme Court’s decision in Duckworth v. Eagan, 492 U.S.
195 (1989). Although we share many of the district court’s
concerns about Jackson’s waiver of his Miranda rights, we
find that the district court exceeded the limits imposed on
federal habeas review, and we therefore reverse its grant of
Jackson’s petition.
I. BACKGROUND
On May 29, 1997, Milwaukee police officers investigating
a report of gunshots observed Frederick Jackson’s car
speeding. They pulled Jackson over and noticed a white
substance all over his mouth and teeth, and, after they
asked him about it, Jackson drove away. Jackson was
quickly stopped, arrested, and taken to the hospital.
Four days after he was arrested, 2 Jackson was inter-
viewed by Milwaukee police detective James Guzinski. The

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No. 02-1979 3
detective advised Jackson of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). Jackson then asked the de-
tective if he could arrange for him to see a lawyer. Accord-
ing to Detective Guzinski’s testimony at the state suppres-
sion hearing, he responded:
At that point I told him I could not do that, and
that I was going to end my interview with him. He
stated he wanted to talk to me now. I stated that he
would have to waive his right to an attorney and he
would have to be very clear about that which he
stated yes, he did want to do that because he want-
ed to cooperate in giving a statement and answer-
ing my questions.
Detective Guzinski further testified as follows:
Q: . . . After you read him his rights and asked him
if he wanted to make a statement, what exact
words do you recall him speaking to you?
A: He asked me if he could have a lawyer right now.
. . .
Q: Was your sense of that whether you personally
could get him a lawyer—you were physically able to
go and summon a lawyer for him, or was he asking
that someone bring him a lawyer?
A: His intent to me was to have a lawyer present
there, then and there, right now, and if I could ar-
range for that.
Q: And you said no, I can’t, basically?
A: That’s correct.
. . .
Q: Okay. Could you as a matter of actual fact have
gotten on the phone at that moment and tried to

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4 No. 02-1979
summon an attorney from the Public Defender’s or
somewhere else?
A: No.
Q: Why not?
A: I had no phone. I’m in a locked room. I have no
access to any of these things.
Q: You were at the Criminal Justice Facility?
A: That is correct.
Q: And you had no access to a phone to call anyone?
A: I had no access to leave the room.
Q: You had no way to get him a lawyer at that
point?
A: No.
According to his testimony, the detective then described to
Jackson the procedure by which public defenders are as-
signed once charges are established, and Jackson responded
again that he would like a lawyer but also wanted to talk
with the detective. Detective Guzinski testified that the
conversation continued as follows:
A: I then told him I couldn’t talk to him now be-
cause he wished an attorney.
Q: Did you then get up and begin to leave the room?
A: No.
Q: What did you do?
A: I paused for a few minutes, and then he re-
initiated conversation with me, and at that point is
when he replied to me that he wished to talk to me
now, and that’s when I re-initiated whether or not
he was going to waive his right to an attorney, and

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No. 02-1979 5
3 Wisconsin argues that the detective’s statement was not nec-
essarily incorrect because there is no evidence that an attorney
could have been on the scene immediately. We do not share this
overly-literal interpretation of Jackson’s request for a lawyer
“right now,” and we assume, as did the Wisconsin Court of
Appeals, that the detective’s response to Jackson was a misstate-
ment.
that’s when he replied yes he would, and then I pro-
ceeded to go through the thing with the questions
about the occurrence.
In fact, the detective’s statement about the availability of
a public defender did not accurately describe state law. 3
Wisconsin regulations provide that public defenders are
available to individuals in custody prior to their being
charged on an emergency basis, 24 hours per day including
weekends and holidays. W IS . A DMIN . C ODE § PD 2.03(2).
Moreover, the public defender must have immediate access
in person or by phone to any individual held in custody, id.
§ 2.03(3), and individuals “who indicate at any time that
they wish to be represented by a lawyer, and who claim that
they are not able to pay in full for a lawyer’s services, shall
immediately be permitted to contact the authority for
indigency determinations. . . .” W IS . S TAT . § 967.06.
Jackson filed a motion to suppress his confession, argu-
ing that he did not knowingly and voluntarily waive his
Miranda rights. After his motion was denied, Jackson pled
guilty to conspiracy to posses cocaine with intent to deliver,
see W IS . S TAT . §§ 961.41(1)(cm); 961.48, and was sentenced
to eight years in prison. He appealed the denial of his
motion to suppress to the Wisconsin Court of Appeals,
which affirmed the judgment of the trial court and found
Jackson’s waiver was knowing and voluntary. See State
v. Jackson, 600 N.W.2d 39 (Wis. Ct. App. 1999). The Court
of Appeals relied on the Supreme Court’s holding in

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6 No. 02-1979
Duckworth, gleaning from the opinion that “all a person in
custody need be told is that he or she does not have to talk
to the police until that person has a lawyer,” id. at 45 n.2,
and finding that the directive was complied with in Jack-
son’s case. One judge dissented from the appellate court’s
decision, commenting that Duckworth was distinguishable
from Jackson’s case and the panel opinion did not comport
with Miranda. Jackson’s petition for review to the Wiscon-
sin Supreme Court was denied.
Jackson then sought a writ of habeas corpus in federal
court under 28 U.S.C. § 2254. The district court granted
Jackson’s petition, finding that Jackson had not voluntarily
waived his Miranda rights. Following the lead of the
dissenting Wisconsin appellate judge, the district court
found Duckworth distinguishable and the failure to sup-
press the confession to have violated Miranda. After grant-
ing his petition, the district court released Jackson from
custody pursuant to Federal Rule of Appellate Procedure
23. At that time, according to the district court, Jackson
had only four months left to serve on his sentence. The
state of Wisconsin appeals the judgment of the district
court.
II. ANALYSIS
The scope of our review of the Wisconsin Court of Appeals’
decision is strictly limited by the standard for habeas
corpus cases promulgated by Congress in the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.
1214. Under the relevant provisions of the AEDPA, an
application for a writ of habeas corpus may not be granted
unless adjudication of the claim in state court “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28

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No. 02-1979 7
U.S.C. § 2254(d)(1). Jackson does not suggest that the deci-
sion of the Wisconsin appellate court was “contrary to”
clearly established federal law, but instead contends that it
unreasonably applied clearly established federal law to his
case. This is a difficult standard to meet; “unreasonable”
means “something like lying well outside the boundaries of
permissible differences of opinion.” Hardaway v. Young, 302
F.3d 757, 762 (7th Cir. 2002). We have held that under this
criterion, habeas relief should not be granted if the state
court decision can be said to be one of several equally-plaus-
ible outcomes. Boss v. Pierce, 263 F.3d 734, 742 (7th Cir.
2001). Indeed, “a federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must be objectively unreasonable.”
Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003) (quoting
Williams v. Taylor, 529 U.S. 362, 411, 409 (2000)).
Within the framework of § 2254(d)(1), we review the
district court’s grant of the petition de novo. Dixon v.
Snyder, 266 F.3d 693, 700 (7th Cir. 2001). And “[w]hether
the state court’s holding involved an ‘unreasonable applica-
tion’ of clearly established federal law, as determined by the
Supreme Court, is a mixed question of law and fact that we
traditionally also review de novo but with a grant of
deference to any reasonable state court decision.” Schaff v.
Snyder, 190 F.3d 513, 522 (7th Cir. 1999) (emphasis in
original).
Jackson argues that the Wisconsin appellate court un-
reasonably applied Miranda v. Arizona, 384 U.S. 436
(1966), when it affirmed the rejection of the motion to
suppress his confession. In Miranda, the Court held that
“[i]f the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain
silent, [or if he] . . . states that he wants an attorney, the

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8 No. 02-1979
4 Under Edwards, “an accused, . . . having expressed his desire to
deal with the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further com-
munication, exchanges, or conversations with the police.” Id. at
484-85. Jackson does not contest that he reinitiated the conversa-
tion with the detective, even after the detective indicated that he
would not interrogate Jackson following his request for counsel.
On the other hand, the detective admits that he did not leave the
interrogation room immediately after Jackson invoked his right
to counsel, but the only testimony provided about this brief period
of time indicates that the detective was gathering his materials
and preparing to leave the room. We do not disagree with the
Wisconsin Court of Appeals and district court’s conclusions that,
given this record, no Edwards violation occurred here. To the
extent Jackson’s decision to resume communication with the
detective may have been based on the detective’s misstatement
about the provision of an attorney, we examine that argument in
our Miranda discussion.
interrogation must cease. . . .” Id. at 473-74. “Miranda thus
declared that an accused has a Fifth and Fourteenth
Amendment right to have counsel present during custodial
interrogation.” Edwards v. Arizona, 451 U.S. 477, 482
(1981). 4 A defendant may waive effectuation of the rights
articulated in Miranda “provided the waiver is made
voluntarily, knowingly, and intelligently.” Miranda, 384
U.S. at 444. “When a Miranda waiver is challenged, two
distinct questions are presented: whether the waiver was
voluntary, knowing, and intelligent as a matter of fact, and
whether it was involuntary as a matter of law.” Henderson
v. DeTella, 97 F.3d 942, 946 (7th Cir. 1996) (citations
omitted). The parties do not disagree about the factual
circumstances surrounding Jackson’s waiver, and neither
the Wisconsin Court of Appeals nor the parties on appeal

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No. 02-1979 9
5 The Wisconsin trial court judge, when ruling on Jackson’s mo-
tion to suppress, observed: “I see these—this defendant I think—
it’s something more than just being informed that he’s been
through this in the past. I think that this is a fairly intelligent
defendant we have here. I think that he—and he made some
conscious choices which were his to make and so that it was a
knowing and intelligent waiver.” Although they are not challenged
here, we note that on habeas review, “[t]he state court’s historical
findings as to the petitioner’s knowledge, understanding, and
determination . . . are . . . entitled to a presumption of correctness
under 28 U.S.C. § 2254(e)(1). . . .” Henderson, 97 F.3d at 946.
focus on the historical components of Jackson’s waiver, such
as his intellect, understanding, or physical condition. 5
Instead, Jackson points to the detective’s misstatement of
Wisconsin law as the crux of his claim that his waiver was
involuntary. Closer examination of Jackson’s argument
reveals that it rests on two distinct legal bases for relief: 1)
the detective misstated the availability of a public defender
under Wisconsin law, and 2) the detective’s statement may
have misled Jackson to believe that he did not have a right
under the Fifth Amendment to have counsel present during
interrogation.
We begin with Jackson’s request for relief under Wiscon-
sin law. Although the detective may have failed to follow
state law by not allowing Jackson to contact the public
defender’s office and mischaracterized the provisions of the
law, review of a habeas petition by a federal court is limited
to consideration of violations of federal law or the United
States Constitution. See 28 U.S.C. § 2254(a) (An application
for a writ of habeas corpus will be entertained “only on the
ground that [the petitioner] is in custody in violation of the
Constitution or laws or treatises of the United States.”);
Williams v. Taylor, 529 U.S. 362, 379 (2000) (explaining
that federal courts have an independent responsibility to
interpret federal law); Gilmore v. Taylor, 508 U.S. 333, 342

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10 No. 02-1979
(1993) (recognizing that instructions containing error of
state law do not give rise to federal habeas relief). Neither
Miranda nor any other provision of federal law requires a
public defender to be immediately available to a suspect
during interrogation. See Miranda, 384 U.S. at 474 (noting
that police stations are not required to have a “station
house lawyer” present at all times to advise prisoners).
Thus, to the extent Jackson’s petition alleges violations of
protections guaranteed under state law that are more
generous than those required under federal law, we may
not enforce these state law provisions through habeas relief.
Jackson’s more substantial claim is that the detective’s
statement, beyond its inaccuracy under state law, clouded
his understanding of the Fifth Amendment right recognized
in Miranda to have counsel present during interrogation,
making his subsequent waiver involuntary. Unfortunately,
as the Wisconsin Court of Appeals found, Jackson’s argu-
ment runs headlong into the Supreme Court’s decision in
Duckworth v. Eagan, 492 U.S. 195 (1989). In Duckworth,
the Court held that when a suspect was informed that he
would be provided an attorney “if and when [he] went to
court,” his subsequent waiver under Miranda was volun-
tary. Id. at 203-04. In coming to this conclusion, the Court
rejected the argument that the warning may have sug-
gested to the accused that he could not have counsel present
until he went to court, finding that the argument misappre-
hended the effect of the phrase on the suspect. Id. The
Court noted that “the initial warnings given to respondent
touched all of the bases required by Miranda,” id. at 203,
and explained that “Miranda does not require that at-
torneys be producible on call, but only that the suspect be
informed, as here, that he has the right to an attorney
before and during questioning, and that an attorney would
be appointed for him if he could not afford one.” Id. at 204.
In Duckworth, the warning given by the officer accurately
described the procedure for appointment of counsel in

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No. 02-1979 11
Indiana, the state in which the incident occurred. In ap-
proving the officer’s conduct, the Court made clear that, as
was the case in Indiana, “[i]f the police cannot provide ap-
pointed counsel, Miranda requires only that police not
question a suspect unless he waives his right to counsel.”
Id.
In spite of the many similarities between this case
and Duckworth, Jackson argues that the accuracy of the
Indiana officer’s statement under state law clearly distin-
guishes Duckworth from this case. He argues that, unlike
the situation before the Court there, in this case the police
could have provided counsel, and therefore the detective’s
remarks violated Miranda. While the Court in Duckworth
certainly noted the accuracy of the officer’s statement under
state law, it is far from clear that the Court’s conclusion
rested on that fact. The Court did not explain, for example,
how, if this were so, differences in the provision of public
defenders under state law should affect a petitioner’s un-
derstanding and exercise of his federal constitutional rights.
Instead of looking to provisions of state law, the Wisconsin
Court of Appeals found significant under Duckworth the
fact that Jackson, like Duckworth, received warnings that
comported with Miranda. The court’s focus receives support
from language in Moran v. Burbine, in which the Court
stated that: “[o]nce it is determined that a suspect’s decision
not to rely on his rights was uncoerced, that he at all times
knew he could stand mute and request a lawyer, and that
he was aware of the State’s intention to use his statements
to secure a conviction, the analysis is complete and the
waiver is valid as a matter of law.” 475 U.S. 412, 422-23
(1986). We acknowledge that “[i]n certain circumstances,
the Court has found affirmative misrepresentations by the
police sufficient to invalidate a suspect’s waiver of the Fifth
Amendment privilege,” Colorado v. Spring, 479 U.S. 564,
576 n.8 (1987) (holding waiver voluntary despite failure to
inform suspect of potential subjects of interrogation), but

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12 No. 02-1979
6 The Supreme Court in a pre-Miranda case held that a factual
misstatement by an officer is only one factor to be considered
when examining voluntariness of a waiver under the totality of
the circumstances. Frazier v. Cupp, 394 U.S. 731, 739 (1969). It
has not, however, since clarified whether this approach applies in
cases analyzed under Miranda, see United States v. Velasquez, 885
F.2d 1076, 1088 (3d Cir. 1989) (applying Frazier in the Miranda
context), nor has it explained whether cases involving legal
misrepresentations rather than factual ones require different
consideration.
7 According to the detective in Soffar, the conversation went as
follows: “Soffar asked whether he should talk to the police or ob-
tain an attorney; [the detective] responded that ‘if he was involved
in the crime he should tell the detective he was in it; otherwise he
should get a lawyer.’ Soffar then asked how he could get a lawyer,
and [the detective] asked him if he could afford a lawyer, knowing
that he could not. Soffar laughed, and asked how he could get a
(continued...)
the uncertainty after Duckworth as to how to balance at
least two factors—the veracity of an officer’s statement of
state law and the provision of proper Miranda warn-
ings—prevents this court from concluding that the Wiscon-
sin courts unreasonably applied clearly established federal
law. 6
Indeed, at least one other court of appeals has found that
a misstatement of law does not, in and of itself, make a
Miranda wavier involuntary. In Soffar v. Cockrell, 300 F.3d
588 (5th Cir. 2002) (en banc), the Fifth Circuit reviewed a
habeas petition with a pre-AEDPA lens and held that a
detective’s misleading statements did not render a suspect’s
waiver involuntary. In that case, after the suspect asked
about the availability of a court-appointed lawyer, the de-
tective responded that “[i]t could take as little as a day or as
long as a month,” despite the fact that the municipality had
a rule that suspects could not be held for more than 72
hours without being charged. Id. at 591. 7 After the detec

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No. 02-1979 13
7 (...continued)
court-appointed attorney, and when he could get one. [The detec-
tive] responded that he did not know Harris County procedures,
and guessed that it could take as little as a day or as long as a
month. [The detective] knew that [Harris County] had a 72-hour
rule . . . but did not tell Soffar about it. Soffar then spat into a
trash can and said ‘so you’re telling me I’m on my own.’ [The
detective] remained silent.” Soffar, 300 F.3d at 591.
tive’s statement, the suspect went on to confess to the
murder of four bowling alley employees. The Fifth Circuit
found the case to be analogous to other holdings in which
waivers were found to be voluntary despite officers’ mis-
leading statements. See, e.g., Mueller v. Angelone, 181 F.3d
557, 573-75 (4th Cir. 1999) (finding suspect’s waiver
voluntary when officer responded to suspect’s question, “Do
you think I need an attorney here?”, by shaking his head
from side to side and stating, “You’re just talking to us”); De
La Rosa v. Texas, 743 F.2d 299, 302 (5th Cir. 1984) (holding
when officer told accused that “it [would] take some time”
before a lawyer could be appointed, suspect’s waiver was
valid because he received warnings that complied with
Miranda). Although the only definitive source of clearly
established federal law under the AEDPA is Supreme Court
authority, Williams, 529 U.S. at 379, the determination by
one of our sister circuits that a misstatement of state law
alone does not vitiate a Miranda waiver certainly makes it
more difficult to conclude that the Wisconsin Court of
Appeals unreasonably applied Supreme Court authority.
We do not adopt the conclusions of the Fifth Circuit here,
nor do we determine whether, in our view, the detective’s
statements violated the Fifth Amendment. Instead, our
opinion is limited to “the only question that matters under
§ 2254(d)(1)—whether [the] state court decision is contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law.” Lockyer, 123 S.Ct. at 1172. Given the
similarities between this case and the Supreme Court’s

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14 No. 02-1979
decision in Duckworth, and the lack of clarity regarding the
effect of an officer’s misstatement on the voluntariness of a
Miranda waiver, we cannot find that the conclusion of the
Wisconsin Court of Appeals lies “well outside the bound-
aries of permissible differences of opinion.” Hardaway, 302
F.3d at 762.
III. CONCLUSION
Accordingly, the decision of the district court is REVERSED
and the case is R EMANDED to the district court for entry of
an order denying Jackson’s petition for a writ of habeas
corpus.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-6-03

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