Johnnie Mertice Wesley v. Randall Hepp

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2968
J OHNNIE M ERTICE WESLEY,
Petitioner-Appellant,
v.
R ANDALL HEPP,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:18-cv-52-pp — Pamela Pepper, Chief Judge.
____________________
A RGUED SEPTEMBER 19, 2023 — D ECIDED J ANUARY 5, 2024
____________________
Before EASTERBROOK , WOOD, and KIRSCH , Circuit Judges.
KIRSCH , Circuit Judge. On February 6, 2014, Wisconsin po-
lice brought Johnnie Wesley in for questioning related to an
ongoing murder investigation. During an initial interroga-
tion, Wesley invoked his right to remain silent, and the inter-
rogation ceased. Nine hours later, officers attempted to inter-
rogate 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

-- 1 of 14 --

2 No. 22-2968
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 state-
ments on two grounds. First, he argued that the officers did
not scrupulously honor his initial invocation of his right to re-
main 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 ha-
beas corpus in the Eastern District of Wisconsin. His petition
was dismissed, and this appeal followed. Because the Wiscon-
sin Court of Appeals reasonably applied Supreme Court prec-
edent 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—

-- 2 of 14 --

No. 22-2968 3
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. Be-
fore 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 lis-
ten. 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.

-- 3 of 14 --

4 No. 22-2968
Miranda warnings were then given, and the interrogation con-
tinued. 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 homi-
cide 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 noth-
ing about it officer.
DALLAND: Okay.
WESLEY: Honest to God truth I don’t know
nothing.

-- 4 of 14 --

No. 22-2968 5
Upon further questioning, Wesley continued to deny in-
volvement in Lloyd’s death but admitted he had bought ma-
rijuana 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 at-
tempted to rob Lloyd at gunpoint, that Lloyd tried to wrestle
the gun away from Wesley, and that Lloyd was shot during
the struggle.

-- 5 of 14 --

6 No. 22-2968
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. Mos-
ley, 423 U.S. 96 (1975), and (2) he unequivocally invoked his
right to remain silent during the third interrogation, see
Berghuis v. Thompkins, 560 U.S. 370 (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 (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 fol-
lowed.
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 applica-
tion with respect to claims adjudicated on the merits only if a
state court’s decision “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as de-
termined by the Supreme Court of the United States,” 28
U.S.C. § 2254(d)(1), or “was based on an unreasonable deter-
mination of the facts in light of the evidence presented in the

-- 6 of 14 --

No. 22-2968 7
State court proceeding,” id. § 2254(d)(2). In his petition, Wes-
ley only brings constitutional challenges under § 2254(d)(1).
While we review a district court’s denial of a § 2254 peti-
tion de novo, “we review the decision of the last state court to
address the merits of the petitioner’s claim … with defer-
ence.” 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 prece-
dent, 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 be-
cause it was meant to be.” Harrington v. Richter, 562 U.S. 86,
102 (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 Ap-
peals misapplied two Supreme Court cases: (1) Michigan v.
Mosley, 423 U.S. 96 (1975), and (2) Berghuis v. Thompkins, 560
U.S. 370 (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 in-
terrogation. In Mosley, the Supreme Court “held that the ad-
missibility of statements obtained after a defendant invokes
his right to remain silent is dependent on whether the defend-
ant’s right to cut off questioning was ‘scrupulously honored.’”

-- 7 of 14 --

8 No. 22-2968
United States v. Montgomery, 555 F.3d 623, 633 (7th Cir. 2009)
(quoting Mosley, 423 U.S. at 103). The Supreme Court did not
lay out explicit factors for this determination, but courts
across the country have extrapolated their own non-exhaus-
tive factors based on the facts and reasoning of the case. See,
e.g., United States v. Alvarado-Saldivar, 62 F.3d 697, 699 (5th Cir.
1995); Davie v. Mitchell, 547 F.3d 297, 310 (6th Cir. 2008).
To be sure, no single multifactor test reigns supreme. Ra-
ther, Mosley is best understood to have created “a totality of
the circumstances test for determining whether police have
breached their duty to honor a suspect’s right to remain si-
lent.” Easley v. Frey, 433 F.3d 969, 972 (7th Cir. 2006). In our
circuit, for example, we consider four factors: “[(1)] the
amount of time that lapsed between interrogations; [(2)] the
scope of the second interrogation; [(3)] whether new Miranda
warnings were given; and [(4)] the degree to which police of-
ficers pursued further interrogation once the suspect had in-
voked his right to silence.” Montgomery, 555 F.3d at 633 (quot-
ing United States v. Schwensow, 151 F.3d 650, 658 (7th Cir.
1998)). On the other hand, Wisconsin courts use a multifactor
test that, while similar to our own, has additional considera-
tions: (1) whether the original interrogation was promptly ter-
minated; (2) whether the interrogation resumed only after the
passage of a significant period of time; (3) whether the suspect
was given complete Miranda warnings at the outset of the sec-
ond interrogation; (4) whether a different officer resumed the
questioning; and (5) whether the second interrogation was
limited to a crime that was not the subject of the earlier inter-
rogation. State v. Hartwig, 366 N.W.2d 866, 869 (Wis. 1985).
Wesley does not challenge the legal validity of Wisconsin’s
multifactor test, nor could he. Under § 2254, the state court

-- 8 of 14 --

No. 22-2968 9
need only apply Supreme Court precedent reasonably. State
courts may adopt their own multifactor tests based on that
precedent, so long as the test accurately reflects the law; here,
it does. The test is both consistent with Mosley’s holding and
reflects the totality of the circumstances the Court considered
in that case. Accordingly, in analyzing whether the Wisconsin
Court of Appeals reasonably applied Mosley, we rely on Wis-
consin’s test. See, e.g., Renico v. Lett, 559 U.S. 766, 778–79 (2010)
(noting that the circuit court erred when it evaluated the rea-
sonableness of the state court’s application of Supreme Court
precedent through the lens of the circuit’s own three-factor
test, when the Supreme Court case “nowhere established
[those] three factors as a constitutional test”).
First, Wesley’s initial interrogation was promptly termi-
nated after he invoked his right to remain silent. Wesley ar-
gues that Miranda warnings were not given before the first in-
terrogation, but that is not pertinent to the first factor. That is,
our Mosley factors, as well as Wisconsin’s, only focus on
whether Miranda warnings were given in the subsequent in-
terrogation. Here, Detective Spano gathered some logistical
information from Wesley in an initial interrogation, Wesley
quickly invoked his right to remain silent, and the interroga-
tion ceased. That is all the first factor contemplates.
Second, there was a significant lapse of time between the
interrogations. Wesley believes his right to remain silent was
not scrupulously honored because he was interrogated three
times in less than thirty-six hours. This is hardly unreasona-
ble. Less than three hours passed between the first and second
interrogations in Mosley, yet the Supreme Court found that
time lapse sufficient. 423 U.S. at 104–06. Here, nine hours
elapsed between the first and second interrogations, and

-- 9 of 14 --

10 No. 22-2968
approximately seventeen hours elapsed between the second
and third interrogations. It was not unreasonable for the Wis-
consin Court of Appeals to find a sufficient lapse in time be-
tween interrogations.
Third, Miranda warnings were given before the third in-
terrogation. Wesley does not dispute this fact.
Fourth, a different officer conducted the questioning in the
third interrogation. Detective Dalland conducted the third in-
terrogation, while Detective Spano conducted the first inter-
rogation (Detective Klemstein conducted the brief second in-
terrogation, which is not challenged). Wesley objects to De-
tective Dalland’s presence at the first interrogation, even
though he did not speak. However, he points to no law sug-
gesting that the mere presence of an officer at both interroga-
tions contravenes the holding in Mosley. Indeed, the Court in
Mosley found no constitutional violation in part because Mos-
ley “was questioned by another police officer.” Id. at 104 (em-
phasis added). The Wisconsin Court of Appeals’ focus on the
officers conducting the questioning, rather than the other of-
ficers present, does not rise to an objectively unreasonable ap-
plication of this precedent to these facts, particularly because
Mosley does not create a firm rule on the issue. See Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004) (noting that in habeas
cases, “[t]he more general the rule, the more leeway courts
have in reaching outcomes in case-by-case determinations”).
Fifth, the subject matter of the third interrogation was the
same as that of the first: Lloyd’s murder. Thus, the fifth factor
favors Wesley. However, we have held that “the constitution-
ality of a subsequent police interview depends not on its sub-
ject matter but rather on whether the police, in conducting the
interview, sought to undermine the suspect’s resolve to

-- 10 of 14 --

No. 22-2968 11
remain silent.” Schwensow, 151 F.3d at 659. “Such an approach
naturally follows from Mosley because Mosley did not elevate
any one factor as predominant or dispositive nor suggest that
the enumerated factors are exhaustive.” Montgomery, 555 F.3d
at 633 (cleaned up). Thus, while the fifth factor favors Wesley,
it is not conclusive.
Looking at the totality of the circumstances, and noting
that most factors favored the state, the Wisconsin Court of
Appeals determined that the officers did not seek to under-
mine Wesley’s right to remain silent. Based on the facts of the
case and the considerations supplied in Mosley, this conclu-
sion was not objectively unreasonable.
B
The Wisconsin Court of Appeals also reasonably applied
Supreme Court precedent in finding that Wesley did not un-
equivocally invoke his right to remain silent during the third
interrogation. In Berghuis v. Thompkins, the Supreme Court
concluded that an individual seeking to invoke the right to
remain silent must do so “unambiguously.” 560 U.S. 370, 381
(2010). Courts applying this standard have looked for simple,
unambiguous statements showing that the suspect wished to
end interrogation. See, e.g., United States v. Abdallah, 911 F.3d
201, 211–12 (4th Cir. 2018) (finding the defendant’s statement
that he “wasn’t going to say anything at all” to be an unam-
biguous invocation); Tice v. Johnson, 647 F.3d 87, 107 (4th Cir.
2011) (same as to, “I have decided not to say any more”); Jones
v. Harrington, 829 F.3d 1128, 1139–40 (9th Cir. 2016) (same as
to, “I don’t want to talk no more”).
“Thompkins also emphasized an important corollary to its
clear-invocation rule: if a suspect’s attempt to invoke his right

-- 11 of 14 --

12 No. 22-2968
to remain silent is ‘ambiguous or equivocal,’ the police ‘are
not required to end the interrogation … or ask questions to
clarify’ the suspect’s intent.” Smith v. Boughton, 43 F.4th 702,
709 (7th Cir. 2022) (quoting Thompkins, 560 U.S. at 381). “The
key inquiry, then, is whether a reasonable officer under the
circumstances would understand the defendant’s statements
as an unequivocal invocation of the right to remain silent.” Id.
In applying this standard, courts may look at the statement
within the context of the interrogation. Id. at 711. But this con-
textual interpretation “is only required where the defendant’s
words, understood as ordinary people would understand
them, are ambiguous.” Connecticut v. Barrett, 479 U.S. 523, 529
(1987); see also Smith, 43 F.4th at 710–11 (noting that courts do
not run afoul of Barrett if ordinary listeners would need con-
text to understand the meaning of the defendant’s words).
Wesley alleges that he unequivocally invoked his right to
remain silent during the third interrogation with three sepa-
rate phrases: (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?” The Wisconsin Court of Appeals disagreed,
and that conclusion was not objectively unreasonable given
Supreme Court precedent.
Wesley’s first statement, “Ain’t nothing to talk about doe,”
was made right before Detective Dalland read Wesley his Mi-
randa rights. At that point, Detective Dalland had only just be-
gun to explain the situation and the underlying murder.
While Wesley’s statement could mean he wished to no longer
speak at all, it also could reasonably be interpreted to mean
that he knew nothing about the specific crime, was not re-
sponsible for it, and saw no reason for his detention. In fact,
his subsequent statements support this latter interpretation:

-- 12 of 14 --

No. 22-2968 13
“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.” It was not objectively
unreasonable for the Wisconsin Court of Appeals to find Wes-
ley’s statement to be merely exculpatory, rather than an invo-
cation of silence.
The second statement arose after Miranda warnings were
given, when Detective Dalland asked, “Now can I ask you
questions?” Wesley responded, “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.” Like the
first statement, Wesley’s second statement could reasonably
be interpreted as an exculpatory one. When Detective Dalland
asked Wesley if he could continue the interrogation, Wesley
allowed Dalland to “say what [he] want[ed].” And Wesley’s
“I ain’t got shit to say about no homicide” statement again
was at best ambiguous, perhaps indicating a lack of
knowledge of and culpability for the specific crime (the hom-
icide), rather than an unequivocal desire to end the interroga-
tion. Again, the Wisconsin Court of Appeals’ conclusion that
this statement was ambiguous was not objectively unreason-
able.
Wesley attempts to show that his first two statements were
clear invocations of his right to remain silent by analogizing
to the statements made in Davis v. Greer, 13 F.3d 1134 (7th Cir.
1994), and Smith v. Boughton, 43 F.4th 702 (7th Cir. 2022). How-
ever, those cases do not count as clearly established federal
law under § 2254. Glebe v. Frost, 574 U.S. 21, 24 (2014) (“[C]ir-
cuit precedent does not constitute ‘clearly established Federal
law, as determined by the Supreme Court.’”) (quoting 28
U.S.C. § 2254(d)(1)). Moreover, Wesley’s statements critically

-- 13 of 14 --

14 No. 22-2968
differ from those in Davis and Smith. In Davis, we suggested
(without deciding) that a suspect’s statements of, “I don’t
want to talk no more,” and, “I don’t want to talk about it any
more,” might have invoked his right to remain silent. 13 F.3d
at 1138–39. Similarly, in Smith, we reviewed whether the
statement, “I don’t want to talk about this,” sufficiently in-
voked the right to remain silent. 43 F.4th at 710. These state-
ments unambiguously stated, at least in part, “I don’t want to
talk.” Here, Wesley’s first two statements equated to, “There
is nothing to talk about.” This distinction is significant. On the
one hand, Wesley could mean that he did not want to talk, as
he now argues. But another reasonable inference to draw is
that Wesley had nothing to talk about because he was not re-
sponsible for and knew nothing about the crime. This is the
exculpatory inference that the Wisconsin Court of Appeals
reasonably drew based on applicable Supreme Court prece-
dent.
Wesley’s third statement—“Can I go back to my cell
now?”—fares no better than the previous two. Taken in con-
text, Wesley’s inquiry is not an unambiguous assertion of his
right to remain silent. The statement gives rise to several com-
peting inferences. Of course, Wesley believes the only reason-
able inference is that he invoked his right to remain silent.
However, another possible inference based on the plain, ordi-
nary meaning of the statement is that Wesley, after a noticea-
ble five-second pause in questioning, was simply asking if the
interrogation was over and if he could return to his cell. The
Wisconsin Court of Appeals was not objectively unreasonable
in concluding that Wesley did not, through this statement or
any other, unambiguously invoke his right to remain silent.
A FFIRMED

-- 14 of 14 --