Armstrong v. Bertrand, 02-3379.

• Decision Date: 17 July 2003
• Docket Number: No. 02-3379.,02-3379.
• Citation: 336 F.3d 620
• Parties: Jeremy ARMSTRONG, Petitioner-Appellant, v. Daniel BERTRAND, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

336 F.3d 620

Jeremy ARMSTRONG, Petitioner-Appellant, v. Daniel BERTRAND, Warden, Respondent-Appellee.

No. 02-3379.

United States Court of Appeals, Seventh Circuit.

Argued April 3, 2003.

Decided July 17, 2003.

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Robin Shellow, Angela C. Kachelski (argued), The Shellow Group, Milwaukee, WI, for Petitioner-Appellant.

William L. Gansner (argued), Office of the Attorney General, Wisconsin Dept. of Justice, Madison, WI, for Respondent-Appellee.

Before CUDAHY, MANION and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

Six years ago, fifteen year-old Jeremy Armstrong shot and killed Robert Drury, his father's roommate. A Wisconsin state jury found Armstrong guilty of first-degree reckless homicide and he was sentenced as an adult to a prison term not to exceed 20 years. A Wisconsin Court of Appeals affirmed the conviction, and Armstrong's petition for review to the Wisconsin Supreme Court was denied. Armstrong appeals now from the Eastern District of Wisconsin's denial of habeas relief. We affirm.

I.

At age fifteen, Jeremy Armstrong was a high school student with more than his share of challenges. His time was divided between his separated parents—his mother Cheryl, who was mentally ill, and his father Robert, who was a crack addict. His father's roommate, Robert Drury, was also a crack addict and repeatedly threatened Armstrong with both physical and sexual violence. Weapons were stashed all around his father's house, and the electricity was sometimes cut off because of unpaid bills. Despite all of these negative influences, Armstrong was an honor student with a perfect attendance record.

On June 19, 1997, Armstrong heard that Drury had come into some money, money that Armstrong felt should be given to his father for repayment of a debt. Armstrong went to his father's house, confronted Drury and demanded the cash, eventually grabbing a gun and pointing it at Drury. Drury refused to hand over the money. According to witness Christopher Torres, Drury threatened to kill Armstrong and lunged for the gun. Armstrong shot Drury dead.

Armstrong was arrested and charged with first-degree intentional homicide. Following Wis. Stat. § 938.183(2), under which adult criminal courts have exclusive jurisdiction over juveniles age fifteen or older charged with first-degree intentional homicide, the state tried Armstrong as an adult. Three Wisconsin state trial court decisions are at issue here. First, Armstrong moved to suppress inculpatory statements made while in police custody. Armstrong claimed that the interrogation session that eventually resulted in his confession involved a detective's putting his hands around Armstrong's throat, knocking Armstrong's head against a wall and telling Armstrong that he would be brutally and repeatedly raped in prison. To substantiate these claims of police misconduct, Armstrong took and passed a polygraph test and moved to admit the results in support of his suppression motion. Both that evidentiary motion and the underlying suppression motion were denied by the state court.

Second, Armstrong requested jury instructions on perfect and imperfect self-defense. The court, after an instruction conference, refused to give the self-defense instructions, finding that there was insufficient evidence to support either theory of self-defense. Oddly enough, on the second day of jury deliberations, the jury sent two questions to the trial judge: "What [does] the privilege of self-defense mean[ ]? Is [Armstrong] allowed the privilege of self-defense in the act of committing a crime?" The court then discovered that the instructions sent into the jury room had accidentally included self-defense language: "If the defendant was acting reasonably in the exercise of the privilege of self defense, his conduct did not create an unreasonable risk to another." The defense moved for a mistrial and, in the alternative, for the belated issuance of an authorized self-defense instruction. Both motions were denied. Instead, the judge ordered the jury to disregard the mistakenly included self-defense language.

Third, Armstrong brought a motion to dismiss, arguing that the state statutes that guided the determination of whether Armstrong would be sentenced as a juvenile or an adult were unconstitutional as applied to Armstrong. The trial court denied that motion as well.

Although he had been charged with first-degree intentional homicide, Wis. Stat. § 940.01, the jury convicted Armstrong on the lesser offense of first-degree reckless homicide, Wis. Stat. § 940.02. Armstrong argued prior to sentencing that he should be given a juvenile disposition under Wis. Stat. § 938.183(2)(a)(2), which permitted adult criminal courts trying a juvenile to hand over the juvenile to the juvenile justice system as long as the juvenile was not convicted of first-degree intentional homicide and met certain other criteria. The court considered the factors for determining the appropriateness of waiver of eligibility for an adult sentence, Wis. Stat. § 938.18(5), but found that Armstrong did not qualify for the waiver. Armstrong was sentenced as an adult to a prison term not to exceed twenty years. His conviction was subsequently affirmed by the Wisconsin Court of Appeals. State v. Armstrong, 234 Wis.2d 524, 611 N.W.2d 470, No. 98-1768-CR, 2000 Wisc.App. LEXIS 184 (Wis.Ct.App. Mar. 7, 2000).

Armstrong's § 2254 petition in the district court challenged the above three trial court decisions. First, he argued that the Wisconsin Court of Appeals decision affirming the trial court's exclusion of polygraph evidence was contrary to United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). Second, he argued that the decision affirming the trial court's refusal to instruct the jury on self-defense was contrary to or involved an unreasonable application of Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), and Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Third, he challenged the decision affirming the constitutionality of the statutes governing whether Armstrong would be sentenced as a juvenile or as an adult. Armstrong argued that these statutes, as applied to him, were contrary to or involved an unreasonable application of controlling Supreme Court due process law. The district court rejected all three arguments and denied Armstrong's petition.

II.

The Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254, provides our standard of review of state court proceedings in petitions for habeas relief. The AEDPA states, in pertinent part, that habeas relief may be granted if the state court's holding "resulted in a decision that 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).

A state court decision is "contrary to" a Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [that precedent]." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under § 2254(d)(1)'s "contrary to" clause, we review the state court decision de novo to determine, as a question of law, what is clearly established law as determined by the Supreme Court and whether the state court decision is contrary to Supreme Court law. See Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.1999).

An application of Supreme Court precedent is unreasonable "if the state court identifies the correct governing legal rule from [the Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407, 120 S.Ct. 1495. Under the "unreasonable application of" clause of § 2254(d)(1), we defer to a reasonable state court decision. Anderson v. Cowan, 227 F.3d 893, 896-97 (7th Cir.2000).

We review de novo the district court's decision on Armstrong's petition. 28 U.S.C. § 2254(d)(1); Washington v. Smith, 219 F.3d 620, 627 (7th Cir.2000).

A.

Armstrong's first claim is that the Wisconsin Court of Appeals' affirmance of the trial court's exclusion of polygraph evidence was contrary to United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In Scheffer, the Supreme Court, while ruling that even a per se ban on polygraph evidence was constitutionally permissible, stated that "[i]ndividual jurisdictions ... may reasonably reach differing conclusions as to whether polygraph evidence should be admitted." Id. at 312, 118 S.Ct. 1261. The use of polygraph evidence in Wisconsin is controlled by State v. Dean, 103 Wis.2d 228, 307 N.W.2d 628 (1981), in which the Wisconsin Supreme Court established a per se ban on polygraph evidence in criminal cases, and by Wis. Stat. § 301.132,¹ which arguably overruled Dean in part by specifically authorizing the use of polygraph tests of convicted sex offenders by the state department of corrections.

Armstrong argues that Scheffer's declaration that each state has the authority to determine the use of polygraph tests within the state, combined with Wisconsin's arguable partial statutory overruling of Dean, somehow required the trial court here to accept Armstrong's polygraph evidence on the alleged abusive police interrogation incidents. Scheffer provides little support for Armstrong's argument. As the district court wrote: "Even if Section 301.132 can be termed an exception to Wisconsin's per se rule, [Armstrong] has failed to establish that the United States...