DECISION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
Phillip Saeger, who is currently serving a sentence at the Sturtevant Transitional Facility, filed a petition seeking federal relief from his state conviction pursuant to 28 U.S.C. § 2254. Saeger was convicted of two counts of burglary as a party to the crime, contrary to Sections 943.10(lm)(a) and 939.05 of the Wisconsin Statutes, and sentenced to seven years and six months imprisonment with five years of extended supervision. He alleges in his petition that an incriminating statement he made to two detectives was involuntary and obtained in violation of his Fifth Amendment right to remain silent. He further alleges that the decision of the Wisconsin Court of Appeals affirming the denial of his motion to suppress the statement is contrary to clearly established federal law. The case has been fully briefed and is now ready for disposition. For the following reasons, Saeger’s petition will be granted.
BACKGROUND
In the course of investigating a series of burglaries in Fond du Lac and Washington counties sometime in 2005, law enforcement officers began focusing their attention on Saeger and put out a request that he be detained. Saeger was later taken into custody in South Beloit, Illinois, and on December 13, 2005, Detective Gerard Kane from the Fond du Lac County Sheriffs Department and Detective Mark Sette from the Washington County Sheriffs Department proceeded there to interview him. Detective Kane read Saeger his Miranda rights from a form, which Saeger also read and signed, indicating he was waiving his rights and agreeing to talk to the detectives. They then proceeded to question him about the burglaries they were investigating from about 8:30 p.m. until 1:50 a.m. the following morning. Ultimately, Saeger confessed to participating in several burglaries in the two counties.
Following the issuance of charges in each of the two counties, Saeger moved to suppress his statement on the grounds that it was involuntary and that his rights under Miranda v. Arizona,
After a couple of hours, the course of the interview changed. One of the detectives received a telephone call advising him that a gun had been found at Saeger’s girlfriend’s house. The gun was identified as being one of the items stolen in the burglaries that occurred in Fond du Lac. It soon became clear to Detectives Kane and Sette that Saeger was fearful of the possibility of federal prosecution for being a felon in possession of a firearm. Kane and Sette told Saeger about the discovery of the firearm and advised him he could face federal charges carrying a potential prison term of 25 years in prison. Given his age at the time (54), Saeger viewed this possibility as a “life sentence.” (Response, Ex. C at 49, ECF No. 21-3.)
At that point, Saeger began arguing with the detectives over whether he could be charged federally. As recounted by the Wisconsin Court of Appeals, Saeger testified that “he was scared and angry and said, interspersed with profanity, “You ... ain’t listening to what I’m telling you. You don’t want to hear what I’m saying. You want me to admit to something I didn’t ... do ... and I got nothin[g] more to say to you. I’m done. This is over.’ ” State v. Saeger,
Neither detective could recall whether Saeger made this statement, though Kane testified “it’s very possible.” (Response, Ex. H at 45, ECF No. 21-8.) Indeed, it appears that Detective Kane was not even aware that under Miranda law enforcement officers were required to stop questioning a suspect who stated he no longer wanted to talk to them. When asked if Saeger had at one point informed them he was done talking to them, and whether they had convinced him to continue the interview by promising that they would not have him charged federally, Detective Kane responded that he did not know whether it happened that way or not. He continued: “I mean, obviously, if he stopped talking, we can’t make him talk. So, he obviously continued talking for some reason and he never mentioned the word ‘lawyer.’ So that’s all I can tell you for sure.” (Id., at 46.) When asked during the hearing on Saeger’s motion in the Washington County proceeding whether he would have stopped his conversation with Saeger even if Saeger in fact said he no longer wanted to talk to him, Detective Kane’s response suggests he would not: “I guess I have the right to talk all night, that’s how I look at it. If he wants to listen, he can; if he doesn’t want to, he doesn’t have to.” (Response, Ex. E at 21, ECF No. 21-5.)
In any event, immediately after Saeger’s outburst, the detectives told Saeger that they were not interested in pursuing federal charges against him and that they would agree not to refer the matter of the gun possession to federal authorities. At Saeger’s request, the detectives reduced the promise to writing, signed it and provided Saeger a copy. The interrogation then continued, and Saeger eventually confessed to being a “point-man” and “backup” in several of the burglaries. The statement was also reduced to writing and signed by Saeger.
On the basis of this evidence, Saeger argued in the separate proceedings that his statement should be suppressed for two reasons. He claimed that the detectives had violated his rights under Miranda when they continued to question him after he told them he was done talking to them. He also claimed that his statement was involuntary because it was in
Both courts denied Saeger’s motion, finding that he did not unequivocally invoke his right to remain silent and that his statement was voluntary. On the voluntariness issue, both courts found that the detectives’ promise that they would not charge Saeger federally, notwithstanding the fact that they did not have the power to issue federal charges, was not misconduct and that his statement to them was not coerced. On the Miranda question, however, the two courts appear to have differed in their findings as to what Saeger had said.
The Fond du Lac County circuit court, citing the testimony of the detectives given in response to the questions of the prosecutor on direct examination, found that Saeger had not exercised his right to remain silent and that, at best, Saeger had made some ambiguous statement to the effect that he had completed his statement to them. The court made no finding as to precisely what Saeger had said. (Response Ex. C at 42, ECF No. 21-3.)
The Washington County circuit court, on the other hand, found that Saeger’s testimony as to what he had said to the detectives was essentially accurate. The court noted that when directly asked whether Saeger had made such a statement, both detectives “were only able to say they didn’t recall him saying that he didn’t want to make any further statements,” which, the court observed, was “far from a denial that those statements were made.” (Id., at 51.) Absent a denial, the court concluded, it was “forced to accept those statements ... as having been made.” (Id.)
Despite this finding, however, the Washington County court also found that Saeger had not unambiguously invoked his right to remain silent. Viewing the statements in the context in which they were made, the court concluded that when Saeger told the detectives he didn’t want to talk to them any further, he really didn’t mean it; he was just bargaining with them. In explaining its conclusion, the court drew an analogy with negotiating over the price of a car with a car dealer. The court noted that a buyer will often say “no” to the dealer’s last offer and start walking away without really meaning to terminate the negotiations. In the view of the court, that is what Saeger was doing here:
It seems to me that Mr. Saeger’s motivation in this context was to get whatever assurances he was in the position to get that he wouldn’t be prosecuted under the Trigger Lock law. That his statements that: that’s it, I don’t want— this is over, I don’t want to talk to you any further, basically puts him in a bargaining position. The officers clearly want to be able to talk to him, because he has information they want to obtain. Now Mr. Saeger has a bargaining chip to get what he is concerned about, which is, not to be prosecuted by the Feds.
(Id. at 53.) Since Saeger’s statement that he no longer wanted to talk to the detectives and proclaiming the interview over could be read in this way, the court concluded that the statement was ambiguous. Absent a clear an unequivocal invocation of his right to remain silent, the court concluded that no Miranda violation had been shown.
Reserving his -right to appeal the denial of his motions to suppress, Saeger then reached an agreement with the state, and the two cases were consolidated for plea and sentencing in Washington County. On appeal, the Wisconsin Court of Appeals adopted the findings and analysis of the Washington County court as to what Sae
LEGAL STANDARD
Saeger’s petition is covered by the Anti-terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Under AEDPA, if a state court adjudicated a constitutional claim on the merits, a federal court may grant habeas relief only if the state court decision was contrary to, or involved an unreasonable application of, Supreme Court precedent or if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the state proceeding. 28 U.S.C. § 2254(d); see also Williams v. Taylor,
“An ‘unreasonable application’ of United States Supreme Court precedent occurs when a state court identifies the correct governing legal rule but unreasonably applies it to the facts of a case or if the state court either unreasonably extends a legal principle from the Supreme Court’s precedent to a new context in which it should not apply or .unreasonably refuses to extend that principle to a new context in which it should apply.” Ellison v. Acevedo,
ANALYSIS
The dispositive issue, in this court’s view, is whether the Wisconsin Court of Appeals’ decision holding that Saeger did not unequivocally invoke his right to remain silent during his interrogation by Detectives Kane and Sette was contrary to or involved an unreasonable application of clearly established federal law. Under federal law, a person subjected to custodial interrogation by police must first be advised of his right to remain silent, that any statements he makes can be used as evidence against him, and that he has the right to the advice of an attorney during questioning, either retained or appointed. Miranda,
More recent cases have held that the invocation of either the right to counsel or the right to remain silent at a custodial interrogation must be unequivocal. See Davis v. United States,
In Thompkins, the Court extended the Davis holding to the right of a suspect to remain silent and decline to answer questions. Thompkins, a suspect in a murder investigation, remained largely silent after he was advised of his Miranda rights. At no point during the interrogation, however, did he state that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney.
In reversing the Court of Appeals, the Court noted “there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis.”
The Wisconsin Court of Appeals cited both Davis and Thompkins in affirming Saeger’s conviction, but concluded that neither required suppression of Saeger’s statement because, considered in context, his statements were ambiguous. As support for its ruling, the‘court cited its earlier decision in State v. Markwardt,
In so ruling, the Wisconsin court unreasonably applied clearly established federal law. Interpretation of the context in which the invocation is made “is only required where the defendant’s words, understood as ordinary people would understand them, are ambiguous.” Connecticut v. Barrett,
In essence, however, the court did not really find that Saeger’s actual words were unclear. Instead, the Wisconsin court found that while Saeger’s actual words were clear, he did not really mean them. Because a reasonable person could find that Saeger might have had a motive other than to protect himself against self-incrimination; his otherwise clear invocation of his Miranda right not to speak to law enforcement was, in the view of the state courts, ambiguous. But if this reasoning
In Anderson v. Terhune, the Ninth Circuit, sitting en banc, held a state court unreasonably applied federal law in finding the defendant’s statement was “ambiguous in context” under similar facts.
Using “context” to transform an unambiguous invocation into open-ended ambiguity defies both common sense and established Supreme Court law. It is not that context is unimportant, but it simply cannot be manufactured by straining to raise a question regarding the intended scope of a facially unambiguous invocation of the right to silence. As the Supreme Court has observed, in invoking a constitutional right, “a suspect need not ‘speak with the discrimination of an Oxford don.’ ”
It is also irrelevant that a suspect invokes his right to remain silent in an “outburst” of frustration. See Anderson,
Because Saeger’s statement was unambiguous on its face (a person is not left wondering what “I got nothin[g] more to say to you” or “I’m done” or “This is over” means), the only reasonable interpretation by the police was that although Saeger said he wanted the questioning to stop, they did not think he really meant what he said. Such a foray into the mental state of the accused has never been advanced by the Supreme Court. Rather, it is exactly the kind of “difficult decision about an accused’s unclear intent” sought to be avoided by the bright-line rule stated in Miranda and the requirement that a suspect unambiguously invoke the right to remain silent. Thompkins,
CONCLUSION
In sum, Saeger’s rights under Miranda v. Arizona were violated when detectives continued to question him after he unequivocally stated that he no longer wanted to speak with them. The decision of the Wisconsin Court of Appeals to the contrary constitutes an unreasonable application of clearly established federal law. It thus follows that Saeger’s petition for relief under 28 U.S.C. § 2254 should be granted. Unless the state elects to retry Saeger within 120 days of this decision, Respondent is ordered to release Saeger from custody. The Clerk is directed to enter judgment accordingly.
DECISION AND ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT
Respondent has filed a motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure 59(e), asserting that this court’s judgment granting Phillip Saeger’s petition for a writ of habeas corpus was based on a manifest error of law. In a decision and order granting the petition on March 6, 2013 (ECF No. 38), the court found that Saeger’s rights under Miranda v. Arizona,
In its motion, Respondent first argues that the state court of appeals did not act unreasonably when it examined the context in which Saeger’s statements were made in order to conclude that his invocation of his right to cut off questioning was ambiguous. Respondent contends that “numerous courts have recognized that it is permissible to consider the context in which a suspect’s remarks were made, even if the words in isolation are unambiguous, in determining if a suspect has unequivocally invoked on of his rights under [Miranda ].” (Respondent’s Br. 2-3, EOF No. 40.) Respondent fundamentally misconstrues the Court’s decision in arguing at length that the context in which a suspect’s alleged invocation of his rights under Miranda is relevant. A fair reading of the decision reveals that the Court never stated that context is irrelevant in determining whether a suspect unambiguously invoked the right to remain silent. An examination of the circumstances or “context” leading up to an articulation of the right to remain silent may and should be considered to determine whether a suspect’s statement was unequivocal and unambiguous. For example, if a suspect prefaces a statement that on its face invokes his right to remain silent by noting that he is only speaking hypothetically, a law enforcement officer could reasonably conclude that questioning could continue.
But here, the way in which the state court of appeals purported to use context to transform Saeger’s unambiguous words into an ambiguous invocation was unreasonable in light of clearly established Supreme Court precedent. Saeger unequivocally articulated his desire for questioning to stop. If Saeger did not mean what he said, if as the state court held he was
Respondent cites several non-binding, largely state court cases to “illustrate” that the Wisconsin court’s consideration of the context in which Saeger’s remarks were made was not an unreasonable application of federal law. Respondent argues these cases demonstrate that “fairminded jurists could disagree on the propriety of considering the context in which otherwise unambiguous words are spoken to decide if a suspect unequivocally invoked his Miranda right to cut off questioning.” (State’s Br. 5, ECF No. 40.) But the question is not whether fairminded judges would agree or disagree; the question- is what the Supreme Court has decided. The Supreme Court has said that “[t]o‘ avoid difficulties of proof and to provide guidance to officers conducting interrogations, [the question whether an accused has invoked his rights under Miranda] is an objective inquiry.” Davis,
As already stated, this court does not disagree that context is important. But consideration of context cannot justify concluding that “no” means “yes” because the suspect may be simply bargaining for a better deal. If this is the rule, then an essential part of Miranda might as well be considered gone. No matter how clearly a suspect invokes either the right to remain silent or the right to counsel, it can always be said that he really didn’t mean it, that it was intended only as a bargaining chip. Such an inquiry into the subjective state of mind of an accused is directly contrary to clearly established' federal law, which states that the determination of whether an accused has invoked his rights under Miranda “is an objective inquiry.” Id.
Moreover, while considering some purportedly illustrative cases, Respondent fails to consider a wealth of habeas cases that have reached results consistent with Supreme Court precedent and with the Court’s decision here. For instance, in McGraw v. Holland, the Sixth Circuit rejected the notion that the defendant’s repeated statements that she did not want to talk about the alleged crime were ambiguous because her invocation might have stemmed from a motive other than her privilege to avoid self-incrimination— namely, her fear of retaliation because she was apparently afraid of being shot and killed if she talked to police.
Likewise, in Anderson v. Smith,
the interrogator never needs to know why a suspect wants to remain silent; once it is clear that the suspect wants to remain silent, the interrogation should cease. After all, the Fifth Amendment assumes that the suspect invokes his right in order not to be a witness against himself; that is reason enough. An interrogator would only want to probe beyond the suspect’s presumed desire to avoid self-incrimination if he expected either to evoke an incriminating response or to get a clue as to how the suspect might be persuaded to abandon his rights.
Id. at 105 (emphasis added) (overruled on other grounds, Maleng v. Cook,
Other federal courts consistently reach the same result: “[although the context and nuances of a request to end questioning can create ambiguity, they cannot overcome a clear expression of the desire to remain silent.” United States v. Rambo,
Respondent’s reliance on Bobo v. Kolb,
Respondent also questions the Court’s reliance on Connecticut v. Barrett,
Similarly unpersuasive is Respondent’s argument that this Court failed to give deference to the state court of appeals’ determination that Saeger did not unambiguously invoke his Miranda right to cut off questioning because it was a factual finding. The Court does not question the Wisconsin’s court’s factual determinations; rather, taking the state court’s findings regarding Saeger’s statements, his actions, the detective’s beliefs, and the context and circumstances surrounding the interrogation as true, the legal conclusion reached was unreasonable. The question of whether an accused has invoked his Miranda rights requires an objective inquiry in order to “avoid difficulties of proof and to provide guidance to officers conducting interrogations.” Davis,
The AEDPA standard is “demanding but not insatiable” and the deference owed state courts “does not by definition preclude relief.” Miller-El v. Dretke,