Adrean L. Smith v. GARY A. BOUGHTON , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2192
A DREAN L. S MITH ,
Petitioner-Appellant,
v.
GARY A. BOUGHTON , Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:15-cv-01235 — Lynn Adelman, Judge.
____________________
A RGUED F EBRUARY 8, 2022 — DECIDED A UGUST 4, 2022
____________________
Before S YKES , Chief Judge, and S CUDDER and JACKSON -
A KIWUMI , Circuit Judges.
S CUDDER , Circuit Judge. Adrean Smith confessed to partic-
ipating in an armed robbery, but believes police obtained his
confession in violation of the Fifth Amendment. On direct ap-
peal, the Wisconsin Supreme Court disagreed, concluding
that Smith had not unequivocally invoked his right to cut off
the interrogation that led to his confession. Our task is limited
to deciding whether that conclusion reflected an

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2 No. 17-2192
unreasonable application of the Supreme Court’s Miranda line
of cases. We conclude that it did not, so we affirm the denial
of Smith’s habeas petition.
I
A
Sometime in November 2010, Milwaukee police pulled
over a stolen van. Adrean Smith, the driver, made a break for
it, but the officers eventually caught and arrested him. Back
at the precinct, Detective Travis Guy questioned Smith about
the van, which officers believed was involved in a series of
armed robberies. Smith’s conversation with Detective Guy
spans three audio recordings.
The first recording begins with Detective Guy providing
Smith the Miranda warnings, adding to the familiar list of
rights an express statement that “if you decide to answer
questions now without a lawyer present, you have the right
to stop the questioning or remain silent at any time you wish.”
Smith acknowledged that he understood all these rights, and
agreed to speak with Detective Guy without a lawyer. All
agree that Smith waived his Miranda rights knowingly and
voluntarily.
The two then discussed the van for about ten minutes.
Eventually, Detective Guy told Smith that the van was stolen.
Smith admitted that he knew this, but claimed he did not steal
the van himself—instead, he said, he got the van from some-
one named Joker.
After a short break, the second recording begins with more
discussion of the van. Smith expressed remorse for having
driven the stolen van, telling Detective Guy that he would pay

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No. 17-2192 3
the owners for any damages or needed repairs. This part of
the conversation came to a close as follows:
SMITH: Okay, so what else do you want to
know about the van?
DET. GUY: [inaudible] I’m just letting you
talk.
SMITH: See, I don’t know what to say.
What I’m sayin’ is I got caught in the van. That’s
pretty much all I can say.
The crucial exchange happened next. At this point, Detec-
tive Guy attempted to change the topic. He began describing
a robbery:
DET. GUY: … Okay, alright, um, we’re going
to talk about this incident here, okay? This is
Milwaukee Police Incident number 1032710—
correction, 0130, which is an armed robbery, at-
tempted home invasion. This happened on 7205
West Brentwood, okay? In this incident here, a
woman was approached in her side drive,
okay? On here it says that actors intentionally
removed the victim’s purse, okay? The victim
pulled in a driveway, and one of the suspects
was armed with a handgun, a silver and chrome
handgun. And then the actors pointed the gun
at the victim and took her purse. Now she was
getting out of her vehicle—
SMITH: See, I don’t want to talk about, I
don’t want to talk about this. I don’t know noth-
ing about this.

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4 No. 17-2192
DET. GUY: Okay.
SMITH: I don’t know nothing. See,
look, I’m talking about this van. I don’t know
nothing about no robbery. Or no—what’s the
other thing?
DET. GUY: Hm?
SMITH: What was the other thing that this
is about?
DET. GUY: Okay.
SMITH: I don’t want to talk—I don’t know
nothing about this, see. That’s—I’m talking
about this, uh, van. This stolen van. I don’t
know nothing about this stuff. So, I don’t even
want to talk about this.
Smith contends that his statements to this point consti-
tuted an unambiguous invocation of his right to remain silent,
requiring Detective Guy to stop all questioning. But that is not
what happened. Immediately after the exchange above, De-
tective Guy pressed on:
DET. GUY: Okay. I got a right to ask you
about it.
SMITH: Yeah, you got a right but—
DET. GUY: You know what I mean?
SMITH: —I don’t know nothing about it. I
don’t know nothing about this. I’m here for
the van.
DET. GUY: You’re here for some other things
that we’re going to talk about, so let me finish.

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No. 17-2192 5
You don’t know anything about this robbery
that happened at 7205 West Brentwood Ave-
nue?
SMITH: Nah.
DET. GUY: On the 23rd of November.
SMITH: Nah.
DET. GUY: Okay, where a woman was ap-
proached?
SMITH: Uh-uh. I don’t know nothing
about this.
DET. GUY: Okay—
SMITH: And then—nah.
DET. GUY: [inaudible] Okay. Go ahead.
SMITH: And then there’s something else
you’re supposed to be talking to me about
that—that was on my cell phone?
DET. GUY: Okay. We’re going to get to that,
there’s a few things I got to go across with you,
okay?
Detective Guy then transitioned back to questioning Smith
about the van. That conversation lasted about three minutes,
at which point Guy again asked Smith about a robbery on No-
vember 23. Smith maintained that he knew nothing about it.
Over the next 20 minutes, Detective Guy attempted to con-
vince Smith that police already had enough evidence to
charge him with various robberies, and that it would be in his
best interest to cooperate. At no point during this portion of

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6 No. 17-2192
the discussion did Smith indicate that he was uncomfortable
or wished to terminate the interview.
Detective Guy then suggested that they take a break.
About a half-hour later, the third recording begins with Smith
confessing to a robbery.
State charges followed. Wisconsin authorities charged
Smith with seven armed robberies and other offenses. Smith
then moved to suppress his statements to Detective Guy. In
Smith’s view, his statement “I don’t want to talk about this”
expressed an unambiguous intention to cut off all further
questioning, and Guy’s failure to honor that request violated
Miranda. After the trial court denied the motion, Smith pled
guilty to three counts of armed robbery and one count of first-
degree reckless injury, preserving his right to appeal. The
court sentenced him to 25 years’ initial confinement and
10 years’ extended supervision.
B
Smith’s appeal eventually made its way up to the Wiscon-
sin Supreme Court, which consolidated his case with that of
his co-defendant, Carlos Cummings. See State v. Cummings,
850 N.W.2d 915 (Wis. 2014). Drawing upon the Miranda line
of cases, the Wisconsin Supreme Court concluded that
Smith’s statements were admissible, though it saw the case as
“a relatively close call.” Id. at 927. The court observed that,
“standing alone, Smith’s statements might constitute the sort
of unequivocal invocation required to cut off questioning.” Id.
But placing the statements “[i]n the full context of his interro-
gation,” the court found ambiguity in Smith’s words that pre-
cluded a finding that he had invoked his Miranda rights and
wished to end all further questioning. Id.

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No. 17-2192 7
Reviewing the transcript of the interrogation, the Wiscon-
sin Supreme Court determined that it was “not clear”
whether Smith’s statements were “intended to cut off ques-
tioning about the robberies, cut off questioning about the
minivan, or cut off questioning entirely.” Id. The court also
observed that Smith intermixed his possible invocations with
exculpatory statements—like “I don’t know nothing about
this”—that it believed were “incompatible with a desire to cut
off questioning.” Id. at 928.
Also significant, in the court’s view, were Smith’s repeated
references to the stolen van. By telling Detective Guy that he
was “talking about this van,” the court explained, Smith ap-
peared to “indicate that [he] was willing to continue answer-
ing questions about the van,” even if he was “unwilling, or
perhaps unable, to answer questions about the robberies.” Id.
In this sense, the court reasoned, Smith’s statements could be
construed as “selective refusals to answer specific questions”
rather than assertions of “an overall right to remain silent.” Id.
(quoting State v. Wright, 537 N.W.2d 134, 157 (Wis. Ct. App.
1995) (citing Fare v. Michael C., 442 U.S. 707, 726–27 (1979))).
All told, the Wisconsin Supreme Court concluded that
Smith’s statements were “subject to reasonable competing in-
ferences,” as they could be “interpreted as proclamations of
innocence or selective refusals to answer questions.” Id.
(cleaned up). And this ambiguity led the court to conclude
that Smith had not unequivocally invoked his right to remain
silent. See id.
Three Justices dissented. Justice Prosser, joined by Justice
Bradley, concluded that Detective Guy’s inappropriate asser-
tion that he had “a right” to ask about the robberies “undercut
[Smith’s] constitutional right to remain silent.” Id. at 930

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8 No. 17-2192
(Prosser, J., concurring in part and dissenting in part). In his
view, “[w]hen Smith said, ‘I don’t want to talk about this,’ he
unambiguously indicated that he did indeed not want to talk
anymore.” Id. at 931. Chief Justice Abrahamson, meanwhile,
expressed concern that the majority “seem[ed] to assert that
[Smith] did not mean what [he] said” and “f[ound] equivoca-
tion where … none exists.” Id. at 932–33 (Abrahamson, C.J.,
dissenting). She concluded that “a reasonable person would
understand that ‘I don’t want to talk about this’ … mean[t]
the conversation [wa]s at an end.” Id. at 933.
The Wisconsin Supreme Court thus affirmed Smith’s con-
viction and sentence.
C
With his avenues for state-court review exhausted, see 28
U.S.C. § 2254(b)(1)(A), Smith pursued habeas corpus relief in
federal court. Invoking 28 U.S.C. § 2254(d)(1), Smith argued
that the Wisconsin Supreme Court’s decision reflected an un-
reasonable application of clearly established federal law—
specifically, the Supreme Court’s Miranda cases. See id.
§ 2254(d)(1); see also Wilson v. Sellers, 138 S. Ct. 1188, 1192
(2018) (explaining that, under § 2254, federal courts review
the decision of “the last state court to decide a prisoner’s fed-
eral claim … on the merits in a reasoned opinion”).
The district court took care to explain that, in both the Wis-
consin courts and in his federal habeas petition, Smith ad-
vanced one and only one argument—that his statement
“I don’t want to talk about this” was an unambiguous invo-
cation of his right to cut off all questioning about all topics.
The district court likewise emphasized two arguments Smith
had not made. For one, Smith never contended that he had

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No. 17-2192 9
selectively invoked his right to remain silent as to the topic of
the robbery alone, such that Detective Guy’s continued ques-
tions about that particular topic were improper. Nor had
Smith ever argued—along the lines of Justice Prosser’s dis-
sent—that Detective Guy’s statement that he had “a right” to
ask about the robbery itself violated Miranda by undermining
Smith’s desire or ability to exercise his right to remain silent.
On the sole question put to it—whether Smith had unam-
biguously invoked his right to end all questioning—the Wis-
consin Supreme Court answered no. And the district court,
looking to the governing Supreme Court precedent and ap-
plying the deferential standard of review set out in
§ 2254(d)(1), concluded that this decision did not result from
“an unreasonable application of[ ] clearly established Federal
law.” 28 U.S.C. § 2254(d)(1).
In the district court’s view, Smith’s use of the phrase
“about this” (in his statement “I don’t want to talk about this”)
indicated a desire not to talk only about “a particular topic”—
specifically, “the topic most recently mentioned.” And so the
district court found that “the most natural interpretation of
[Smith’s] interjection” was that “he did not want to talk about
the robbery, as opposed to the other matters that had been
under discussion” to that point—foremost, the van. This fact,
taken alongside Smith’s assertions of innocence and his af-
firmative statements indicating a willingness to continue dis-
cussing the van, led the district court to conclude that the Wis-
consin Supreme Court’s holding that Smith had “not ex-
press[ed] a desire to cut off questioning on all topics” was not
unreasonable.
The district court did not issue a certificate of appealabil-
ity, but in May 2021 we did, determining that “[r]easonable

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10 No. 17-2192
jurists could debate whether Smith’s confession was obtained
in violation of his right to end a custodial interview.”
II
A
Section 2254 sets a high bar for federal habeas petitioners.
Congress has instructed that federal courts “shall not” grant
relief unless the relevant state-court decision “was contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1). This deferential
standard ensures that § 2254 serves only as “a ‘guard against
extreme malfunctions in the state criminal justice systems,’
not a substitute for ordinary error correction through appeal.”
Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jack-
son v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concur-
ring in the judgment)). To this end, the Supreme Court has
underscored that success under § 2254 requires a petitioner to
“show far more than that the state court’s decision was
‘merely wrong’ or ‘even clear error.’” Shinn v. Kayer, 141 S. Ct.
517, 523 (2020) (per curiam) (quoting Virginia v. LeBlanc, 137
S. Ct. 1726, 1728 (2017) (per curiam)).
Instead, § 2254 affords relief only where the state court’s
holding is “objectively unreasonable.” White v. Woodall, 572
U.S. 415, 419 (2014) (cleaned up). A state court falls short only
“where there is no possibility fairminded jurists could disa-
gree that the state court’s decision conflicts with [Supreme
Court] precedents.” Richter, 562 U.S. at 102. Put another way,
for a federal court to issue the writ, the state-court decision
must be “so lacking in justification that there was an error
well understood and comprehended in existing law beyond

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No. 17-2192 11
any possibility for fairminded disagreement.” Id. at 103. And
if a state decision rests on multiple grounds, it may not be dis-
turbed unless “each ground supporting [it] is examined and
found to be unreasonable.” Kayer, 141 S. Ct. at 524.
A reader confronting these standards for the first time
might be left wondering whether relief under § 2254 is avail-
able only in theory. It exists in practice, too, but examples are
few and far between. See, e.g., Sims v. Hyatte, 914 F.3d 1078,
1088–92 (7th Cir. 2019). And that is by congressional design:
“Federal habeas review of state convictions frustrates both the
States’ sovereign power to punish offenders and their good-
faith attempts to honor constitutional rights.” Calderon v.
Thompson, 523 U.S. 538, 555–56 (1998) (cleaned up). So if the
standard for relief under § 2254 appears “difficult to meet,
that is because it was meant to be.” Richter, 562 U.S. at 102.
B
In affirming the denial of Smith’s motion to suppress, the
Wisconsin Supreme Court discussed and applied all the right
governing law.
The Fifth Amendment provides that no person “shall be
compelled in any criminal case to be a witness against him-
self.” U.S. Const. amend. V. The Supreme Court’s decision in
Miranda announced a set of “concrete constitutional guide-
lines” to effectuate that protection in the context of custodial
interrogations. Miranda v. Arizona, 384 U.S. 436, 442 (1966); see
Dickerson v. United States, 530 U.S. 428, 444 (2000) (holding that
“Miranda announced a constitutional rule”). In particular, be-
cause of the “inherent compulsions of the interrogation pro-
cess,” Miranda requires that, “if a person in custody is to be
subjected to interrogation, he must first be informed in clear

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12 No. 17-2192
and unequivocal terms” of his constitutional rights. 384 U.S.
at 467–68.
First among the rights set out in Miranda is the one at issue
here: the right to remain silent. See id. at 468. This right in-
cludes not only a right not to respond to official questions, but
also an affirmative “right to cut off questioning” at any time
during a custodial interrogation—even if the suspect has ear-
lier waived his rights and agreed to speak with police. Michi-
gan v. Mosley, 423 U.S. 96, 103 (1975) (quoting Miranda, 384
U.S. at 474); see Cummings, 850 N.W.2d at 925. The Supreme
Court has characterized a suspect’s power to terminate ques-
tioning as “[t]he critical safeguard” of the Miranda right to si-
lence, permitting him to “control the time at which question-
ing occurs, the subjects discussed, and the duration of the in-
terrogation.” Mosley, 423 U.S. at 103–04.
In Berghuis v. Thompkins, the Supreme Court underscored
that a suspect seeking to invoke the right to remain silent
must do so “unambiguously.” 560 U.S. 370, 381 (2010); see
Cummings, 850 N.W.2d at 925–26 (discussing Thompkins’s
“unequivocal invocation standard”). Van Chester Thompkins
remained largely silent during a three-hour interrogation be-
fore ultimately confessing to a murder. See Thompkins, 560
U.S. at 375–76. The Court held that this silence alone did
not require police to terminate the interrogation. See id. at 382.
Instead, the Court explained, a defendant may invoke his Mi-
randa right to silence only by making an “unambiguous”
statement to that effect, such as by telling police “that
he want[s] to remain silent or that he [does] not want to talk
with [them].” Id.
Courts applying the Thompkins standard have thus looked
for simple statements clearly indicating that the suspect

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No. 17-2192 13
wished to bring police questioning to a close. 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 any-
thing at all” to be an unambiguous invocation); Jones v. Har-
rington, 829 F.3d 1128, 1140 (9th Cir. 2016) (reaching the same
conclusion when the defendant told police “I don’t want to
talk no more”); Tice v. Johnson, 647 F.3d 87, 107 (4th Cir. 2011)
(holding likewise for “I have decided not to say any more”).
Thompkins also emphasized an important corollary to its
clear-invocation rule: if a suspect’s attempt to invoke his right
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. Thompkins, 560 U.S. at 381 (quot-
ing Davis v. United States, 512 U.S. 452, 459, 461–62 (1994)). 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. See
Davis, 512 U.S. at 458–59. If so, as the Wisconsin Supreme
Court recognized, “all police questioning must cease” imme-
diately. Cummings, 850 N.W.2d at 926 (citations omitted). If
not, the interrogation may proceed.
C
Because the Wisconsin Supreme Court rooted its decision
in “the correct governing legal rule[s],” our task under
§ 2254(d)(1) is to determine whether its application of those
rules to the facts of Smith’s interrogation was “objectively un-
reasonable.” Woodall, 572 U.S. at 419, 425 (cleaned up).
It was not.

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14 No. 17-2192
1
When Detective Guy switched topics from the van to the
robberies, Smith responded by saying “I don’t want to talk
about this.” Smith insists that this statement clearly expressed
a desire to cut off questioning about all topics. But another rea-
sonable interpretation of Smith’s statement that he did
not want to talk “about this” is that this referred only to the
robbery—the topic Detective Guy had just introduced—and
that Smith was willing to continue talking about the van. That
possibility alone means it was not unreasonable for the Wis-
consin Supreme Court to conclude that Smith’s statement fell
short of satisfying Thompkins’s unambiguous-invocation test.
See 560 U.S. at 381.
A look back at the transcript reveals that this interpreta-
tion of Smith’s statement is bolstered by his statements a mo-
ment later that he was “here for the van” and “talking about
this van.” Smith contends that we cannot consider these state-
ments, as the Supreme Court has held that courts may not use
a suspect’s “subsequent responses to continued police ques-
tioning” to render earlier clear statements ambiguous. Smith
v. Illinois, 469 U.S. 91, 97 (1984) (emphasis omitted). But we
have rejected the premise: it was reasonable for the Wisconsin
Supreme Court to think that Smith’s initial statement—“I
don’t want to talk about this”—was not unambiguous but in-
stead left unclear what he meant by “this.” And so the court’s
consideration of Smith’s subsequent references to the van was
not “contrary to” or “an unreasonable application of” Smith
or any other Supreme Court case. See 28 U.S.C. § 2254(d)(1).
Looking at the full context of the back and forth in the in-
terrogation, the Wisconsin Supreme Court determined that
Smith appeared “willing to continue answering questions

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No. 17-2192 15
about the van, but was unwilling, or perhaps unable, to an-
swer questions about the robberies.” Cummings, 850 N.W.2d
at 928. That analysis aligns with the Supreme Court’s obser-
vation in Fare v. Michael C. that a suspect’s statements that “he
could not, or would not, answer [specific] question[s] … were
not assertions of his [overall] right to remain silent.” 442
U.S. at 727.
We are not the only ones to see alignment with Michael C.
The Wisconsin Supreme Court did too, affirmatively relying
on Michael C. to conclude that a reasonable officer could have
believed Smith’s statements were “selective refusals to an-
swer specific questions” about the robbery rather than asser-
tions of “an overall right to remain silent.” Cummings, 850
N.W.2d at 928 (citations omitted). The court went on to ex-
plain that “[t]he mere fact that Smith’s statements could be in-
terpreted as … selective refusals to answer questions is suffi-
cient to conclude” that they were not unambiguous invoca-
tions within the meaning of Thompkins. Id. Far from being “an
error well understood and comprehended in existing law,”
Richter, 562 U.S. at 103, this is an accurate statement of the Su-
preme Court’s Miranda case law.
For his part, Smith takes issue with the conclusion that “I
don’t want to talk about this” could reasonably be interpreted
as ambiguous. It is, after all, quite similar to Thompkins’s pro-
totypical example of a clear invocation: a statement that the
suspect “did not want to talk with police.” 560 U.S. at 382. In
Connecticut v. Barrett, the Supreme Court made clear that
“[i]nterpretation” of a claimed invocation “is only required
where the defendant’s words, understood as ordinary people
would understand them, are ambiguous.” 479 U.S. 523, 529
(1987). Smith says his invocation was unambiguous—full

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16 No. 17-2192
stop—and that the state court ran afoul of Barrett by looking
to context to “interpret” the statement as ambiguous.
But the Supreme Court has likewise underscored that con-
text is an important factor in the plain-meaning analysis. See,
e.g., Yates v. United States, 574 U.S. 528, 537 (2015) (Ginsburg,
J., plurality opinion) (“In law as in life … the same words,
placed in different contexts, sometimes mean different
things.”). And ordinary listeners would know that the mean-
ing of “I don’t want to talk about this” depends on the answer
to the question talk about what? Since Smith’s statement left
that crucial question unanswered, Barrett recognizes that an
ordinary listener must look to the broader context of the in-
terrogation for the answer. At the very least, then, the Wis-
consin Supreme Court’s consideration of that added context
was not “objectively unreasonable.” Woodall, 572 U.S. at 419.
Smith begs to differ, relying on the Sixth Circuit’s opinion
in McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001), a case he
says “cannot be distinguished” from his own. We think oth-
erwise. In McGraw, police interviewed a suspect about one
and only one thing—an alleged sexual assault. See id. at 515.
In response the suspect repeatedly told police “I don’t want
to talk about it,” id., a statement which, like the one here,
raises the question talk about what? The Sixth Circuit, consid-
ering the context of the interrogation, found it clear that “it”
meant the sexual assault—the only topic being discussed. See
id. at 518. And so the court determined that the statement was
a clear invocation of the right to remain silent. See id.
Here, by contrast, the interrogation covered two topics. Af-
ter discussing the van for 15 minutes, Detective Guy asked
about a robbery. Only then did Smith indicate that he didn’t
“want to talk about this.” In this context, it was not

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No. 17-2192 17
unreasonable for the state court to conclude that “about this”
referred only (or, at least, ambiguously) to the robbery. Con-
strued in this way, the statement was not a clear and unequiv-
ocal invocation of the right to remain silent about any and all
topics. On this record, then, we cannot say the Wisconsin Su-
preme Court’s decision amounted to an unreasonable appli-
cation of the clear-invocation rule announced in Thompkins.
2
The comparison to McGraw leads us to a final observation.
In McGraw, when the suspect said she did not want to talk
about the sexual assault, the officer told her that she “ha[d]
to.” 257 F.3d at 515. The Sixth Circuit held that a reasonable
officer “would have understood that when [the suspect] re-
peatedly said she did not want to talk about the rape, she
should not have been told that she had to talk about it.” Id. at
518. A similar concern is present here. If, as the Wisconsin Su-
preme Court suggested, Smith remained willing to speak
about the van but was “unwilling, or perhaps unable, to an-
swer questions about the robberies,” Cummings, 850 N.W.2d
at 928, Detective Guy should not have told him he had “a right
to ask” about the robberies and then proceeded to do so.
No doubt Detective Guy’s statement went too far—and, if
this case were coming to us on direct review, we may have
more leeway to address this point further. But remember that
Smith made only one argument before the Wisconsin Su-
preme Court: that he unambiguously invoked as to all topics,
not just the robbery, and that Detective Guy’s statement was
not itself the cause of any Miranda violation. For whatever rea-
son, this is the way Smith’s state-court counsel chose to tee up
his case on direct appeal. And Smith is bound by that decision
on collateral review in federal court. See White v. United States,

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18 No. 17-2192
8 F.4th 547, 554 (7th Cir. 2021) (“A claim not raised on direct
appeal generally may not be raised for the first time on collat-
eral review and amounts to procedural default.”); Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991) (explaining that a peti-
tioner’s “fail[ure] to exhaust state remedies” with respect to a
particular claim amounts to “a procedural default for pur-
poses of federal habeas” when the state court “to which the
petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims
procedurally barred”). In the deferential § 2254(d)(1) context
it is especially important that we adhere to the general
rule that parties, and not courts, “are responsible for advanc-
ing the facts and argument[s] entitling them to relief.”
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)
(cleaned up).
Recognizing the need to hew closely to the arguments pre-
sented in the Wisconsin courts, Smith’s habeas counsel has
not argued that “I don’t want to talk about this” was a selec-
tive invocation of the right to remain silent about the robbery
alone. That argument would be procedurally defaulted. See
White, 8 F.4th at 554. Instead, in line with his state-court sub-
missions, Smith’s main argument—the one we have dis-
cussed to this point—is all-or-nothing: that he invoked his
right to remain silent as to all topics.
But Smith does press an alternative argument that relies
upon selective invocation, albeit in roundabout fashion. In
Smith’s view, even if his statements were not an unambigu-
ous invocation of the right to remain silent as to all topics, they
were an unambiguous invocation as to some topics—either the
robberies, the van, or everything. “Each of those options,”
Smith contends, “is an invocation of the right to remain

-- 18 of 40 --

No. 17-2192 19
silent.” And Smith says that the Wisconsin Supreme Court
should have resolved this “ambiguity as to the scope of [his]
invocation” in his favor by requiring all questioning to end.
For this proposition he relies on the Supreme Court’s state-
ment in Barrett that courts must “give a broad, rather than a
narrow, interpretation to a defendant’s” invocation of his Mi-
randa rights. 479 U.S. at 529. The dissent sees things the same
way. See post at 31–36.
To our eyes, though, Smith never presented this argument
to the Wisconsin courts. Nowhere in his briefs before the Wis-
consin Supreme Court did he reference Barrett or suggest that
his statements could be interpreted as selective invocations as
to the robbery. His failure to do so leaves us without a state-
court decision to review on the issue. See Perruquet v. Briley,
390 F.3d 505, 514 (7th Cir. 2004) (explaining that a procedural
default occurs where a petitioner’s “claim was not presented
to the state courts and it is clear that those courts would now
hold the claim procedurally barred”) (citing Coleman, 501 U.S.
at 735 & n.1).
Regardless, we have already observed that, in line with
Michael C., it was not unreasonable for the Wisconsin Su-
preme Court to determine that Smith’s statements could be
viewed as reflecting “selective refusals to answer specific
questions” about the robbery but a continued willingness to
talk about the van. Cummings, 850 N.W.2d at 928 (citation
omitted). And that means the Wisconsin Supreme Court was
within its rights to conclude that the statement was not an un-
ambiguous all-or-nothing invocation under Thompkins.
Make no mistake: Smith—aided here by talented pro bono
counsel—has advanced a serious Miranda claim. All judges to
have considered it, including the Justices of the Wisconsin

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20 No. 17-2192
Supreme Court, have struggled with the issue. And we share
the dissent’s concerns about Detective Guy’s conduct during
the interrogation and the effect it had on Smith’s ability to ex-
ercise his rights. But we are limited to the task Congress set
for us in § 2254(d)(1). In our view, nothing in this case reflects
an “extreme malfunction[ ]” of the judicial process beyond all
“possibility for fairminded disagreement.” Richter, 562 U.S. at
102–03 (citations omitted). To the contrary, in the competing
opinions of the Wisconsin Supreme Court we see only a state
court doing its level best to answer a difficult question of Fifth
Amendment law. And in that case § 2254 bars relief.
For these reasons we AFFIRM the denial of Smith’s habeas
petition.

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No. 17-2192 21
JACKSON -A KIWUMI , Circuit Judge, dissenting. In Miranda,
the Supreme Court made clear that if an individual “indicates
in any manner, at any time” during an interrogation that he
wishes to cut off questioning, “the interrogation must cease.”
Miranda v. Arizona, 384 U.S. 436, 473–74 (1966). The right to
terminate questioning, the Supreme Court explained, is a
“critical safeguard” that must be “‘scrupulously honored.’”
Michigan v. Mosley, 423 U.S. 96, 103 (1975) (citation omitted).
Without it, an interrogator “through badgering or overreach-
ing—explicit or subtle, deliberate or unintentional—might
otherwise wear down the accused and persuade him to in-
criminate himself notwithstanding [an individual’s] earlier
request” to terminate questioning. Smith v. Illinois, 469 U.S. 91,
98–99 (1984) (cleaned up).1
This case is a poster child for what Miranda and its prog-
eny were designed to prevent. Adrean Smith, at the time
eighteen years old, stated “I don’t want to talk about this” and
“I don’t want to talk” multiple times. Smith’s statements were
all he needed to unambiguously invoke his right to terminate
questioning. But instead of honoring Smith’s request, Detec-
tive Travis Guy continued the interrogation and falsely as-
serted that he had a right to ask Smith questions. Eventually,
Detective Guy obtained a confession. This was a violation of
Smith’s right to cut off questioning.
1 The Supreme Court has stated that “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[.]” See
Berghuis v. Thompkins, 560 U.S. 370, 381 (2010); see also Davis v. United
States, 512 U.S. 452 (1994). Accordingly, both the majority opinion and I
cite right to counsel cases like Smith in our analysis.

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22 No. 17-2192
Yet, a closely divided Wisconsin Supreme Court con-
cluded otherwise. The Wisconsin Supreme Court reasoned
that although Smith’s statements standing alone, “might con-
stitute the sort of unequivocal invocation required to cut off
questioning,” when placed in context, it was unclear whether
Smith—who previously answered questions about a stolen
van—intended to cut off questioning about unsolved rob-
beries, the stolen van, or cut off questioning completely. I see
several issues with this reasoning: (1) the fact that Smith ini-
tially cooperated cannot be used to render his invocation am-
biguous—he had a right to cut off questioning “at any time[.]”
Miranda, 384 U.S. at 473–74; (2) Smith is not required to speak
with a high level of specificity or use particular words to un-
equivocally invoke his right to cut off questioning, see Emspak
v. United States, 349 U.S. 190, 194 (1955), and the number of
topics discussed during an interrogation does not change this;
and (3) Smith’s request to cut off questioning is entitled to a
“‘broad, rather than a narrow’” interpretation, Connecticut v.
Barrett, 479 U.S. 523, 529 (1987) (citation omitted), and any am-
biguity as to the scope of the invocation must be resolved in
his favor, see Michigan v. Jackson, 475 U.S. 625, 633 (1986).2
Smith clearly invoked his right to cut off questioning and
his statements should have been suppressed. The Wisconsin
Supreme Court’s decision to the contrary was the result of an
unreasonable application of Miranda and its progeny.3 For
2 Jackson was overruled by Montejo v. Louisiana, 556 U.S. 778 (2009), on
grounds not relevant here. Jackson’s discussion about the scope of waivers
and resolving doubts in favor of protecting the constitutional claim re-
mains good law. See Jackson, 475 U.S. at 633.
3 Under Title 28, Section 2254—promulgated as part of the Antiterrorism
and Effective Death Penalty Act of 1996, otherwise known as AEDPA—a

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No. 17-2192 23
these reasons, even under the deferential and “difficult to
meet” standard for relief under § 2254, Harrington v. Richter,
562 U.S. 86, 102 (2011), I cannot join the majority opinion in
affirming the denial of Smith’s habeas petition.
I. The Interrogation
A brief recap of the facts is necessary. In November 2010,
Detective Guy conducted a custodial interrogation of eight-
een-year-old Smith about a stolen van used in a string of
armed robberies. The interrogation was captured on three au-
dio recordings.
In the first audio recording, Detective Guy began the in-
terrogation by reading Smith his Miranda rights and specifi-
cally informed Smith that he had “the right to stop question-
ing or remain silent anytime” he wished. After Smith agreed
to talk, Detective Guy told Smith they had “multiple things to
talk about,” including a stolen van. During questioning about
the van, Smith insisted that he did not steal the van but ex-
plained that because he was caught driving the van, he would
pay the owners for any damages.
By the start of the second audio recording, Smith said all
he could say about the van, and the discussion about the van
ended. At that point, Detective Guy transitioned to describing
a robbery. Within seconds of Detective Guy’s transition,
Smith interrupted and said: “I don’t want to talk about this.”
Smith briefly explained that he knew nothing about the
federal court may grant relief if a state-court 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).

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24 No. 17-2192
robbery. He twice repeated “I don’t want to talk about this.”
He also said once, “I don’t want to talk.” Smith then stopped
talking.
From Smith’s view, the interrogation should have ended
there. Instead, Detective Guy falsely stated: “I got a right to
ask you about it.” And Detective Guy continued the interro-
gation.
After Detective Guy said that he had a right to ask ques-
tions, Smith resumed talking. He again claimed that he did
not know anything about a robbery but was there to discuss
the van. Detective Guy reminded Smith that they had multi-
ple things to talk about, stating: “You’re here for some other
things that we’re going to talk about, so let me finish.” Detec-
tive Guy then asked Smith questions about the robbery. When
Smith denied any knowledge about the robbery, Detective
Guy returned to discussing the van, but three minutes later,
resorted to asking Smith about the same robbery. Despite De-
tective Guy’s repeated attempts to get Smith to talk about the
robbery, including informing Smith that police had evidence
of his involvement, Smith maintained that he did not know
anything about a robbery. Detective Guy then suggested a
break. This ended the second audio recording.
There are no details about what happened during the
break. Thirty minutes later, the third audio recording begins
with Smith confessing to participating in an armed robbery.
The state charged Smith with several armed robberies and
other offenses. Smith filed a motion to suppress his incrimi-
nating statements, but after the trial court denied the motion,
he pled guilty to three counts of armed robbery as party to a
crime and one count of first-degree reckless injury by use of a

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No. 17-2192 25
dangerous weapon. Smith was sentenced to twenty-five years
of initial confinement and ten years of extended supervision.
Smith appealed the denial of his motion to suppress in
state court, arguing that he invoked his right to cut off ques-
tioning, thus Detective Guy’s failure to end the interrogation
violated Miranda. The Wisconsin Supreme Court affirmed the
denial of his suppression motion and concluded that Smith
did not unambiguously invoke his right to cut off question-
ing. The Wisconsin Supreme Court reasoned:
We agree that, standing alone, Smith’s state-
ments might constitute the sort of unequivocal
invocation required to cut off questioning, and
we further acknowledge that Smith’s statement
presents a relatively close call. In the full context
of his interrogation, however, Smith’s state-
ments were not an unequivocal invocation of
the right to remain silent.
When placed in context it is not clear whether
Smith’s statements were intended to cut off
questioning about the robberies, cut off ques-
tioning about the minivan, or cut off question-
ing entirely … Prior to Smith’s statement, Detec-
tive Guy had been asking Smith about his in-
volvement in the theft of the minivan. Smith
had been participating in this portion of the
questioning in a fairly straightforward and co-
operative fashion.
The Wisconsin Supreme Court’s decision led three justices to
dissent; they concluded that Smith unambiguously invoked
his right to cut off questioning. When the state courts failed to

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26 No. 17-2192
grant relief, Smith sought habeas corpus relief in federal court
arguing that the Wisconsin Supreme Court’s decision was an
unreasonable application of clearly established federal law.
The district court disagreed, taking the position that Smith’s
use of the words “about this” expressed a desire not to talk
about the robberies, which was insufficient to invoke the right
to cut off questioning altogether.
Although the district court denied Smith a certificate of
appealability, we decided to hear the case on appeal. Today,
the majority opinion, citing the deferential § 2254 standard,
affirms the district court’s decision to deny Smith habeas re-
lief. But § 2254(d)(1) was designed to address the very circum-
stance before our court—when a state court’s decision results
from an unreasonable application of clearly established law.
II. The “Clearly Established” Law
The analysis begins and ends with the Fifth Amendment
and the Miranda line of cases. The Fifth Amendment, made
applicable to the states via the Fourteenth Amendment, pro-
vides that “[n]o person … shall be compelled in any criminal
case to be a witness against himself.” U.S. C ONST. amend. V.
The Fifth Amendment’s prohibition against compelled self-
incrimination allows an individual to refrain from answering
an official’s questions where the answers might incriminate
the individual in a criminal proceeding. See, e.g., Minnesota v.
Murphy, 465 U.S. 420 (1984).
In Miranda, the Supreme Court established procedural
safeguards to protect the right against compulsory self-in-
crimination during custodial interrogations. This includes a
suspect’s right to remain silent and cut off questioning. See
Miranda, 384 U.S. at 467–70. The Supreme Court advised that

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No. 17-2192 27
if an individual indicates in “any manner, at any time” that he
does not wish to be interrogated, “the interrogation must
cease.” Id. at 473–74. It does not matter that the individual
“may have answered some questions or volunteered some
statements on his own”—this does not deprive him of his
right to cut off questioning. Id. at 445. “Without the right to
cut off questioning,” the Supreme Court explained, “the set-
ting of in-custody interrogation operates on the individual to
overcome free choice in producing a statement after the priv-
ilege has been once invoked.” Id. at 474.
The Supreme Court elaborated on this “critical safeguard”
in subsequent cases like Michigan v. Mosley, 423 U.S. 96 (1975).
In Mosley, the Court explained that “[t]hrough the exercise of
his option to terminate questioning [a suspect] can control the
time at which questioning occurs, the subjects discussed, and
the duration of the interrogation.” Id. at 103–04 (emphasis
added). Once an individual invokes the right to cut off ques-
tioning, the right must be “‘scrupulously honored.’” Id. (quot-
ing Miranda). Meaning, the interrogation must cease. Id. If an
interrogator fails to honor an individual’s request, any state-
ments obtained during the interrogation may not be admitted
against the individual in a criminal proceeding. See id. at 99–
100. That is because “‘any statement taken after the person in-
vokes his privilege cannot be other than the product of com-
pulsion, subtle or otherwise.’” Id. at 100–01 (citing Miranda,
384 U.S. at 473–74).
In Berghuis v. Thompkins, the Supreme Court explained
that an individual must invoke the right to remain silent, or
to cut off questioning, “unambiguously.” 560 U.S. 370 (2010).
The Court rejected Thompkins’s argument that his silence
during an interrogation was enough to invoke the right to

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28 No. 17-2192
remain silent. Id. at 381-82. The Court explained that had
Thompkins said that “he wanted to remain silent or that he
did not want to talk with the police[,]” he would have in-
voked his right to end questioning. Id. at 382.
Although a suspect must invoke his right unequivocally,
“[n]o ritualistic formula or talismanic phrase” is required.
Emspak, 349 U.S. at 194; see also Davis v. United States, 512 U.S.
452, 459 (1994) (a suspect need not “‘speak with the discrimi-
nation of an Oxford don’”) (citation omitted). At minimum, a
suspect’s invocation requires “‘some statement that can rea-
sonably be construed to be an expression of a desire’” to cut
off questioning. Davis, 512 U.S. at 459 (citation omitted).
To determine whether an individual invoked the right to
cut off questioning, courts employ an objective standard. Un-
der this objective standard, the focus is whether a reasonable
officer would regard the suspect’s statements to be an une-
quivocal invocation of the right to cut off questioning. Davis,
512 U.S. at 458–59. In undertaking this inquiry, a court may
look at context to interpret an invocation when an individ-
ual’s statement is ambiguous as understood by ordinary peo-
ple. Connecticut v. Barrett, 479 U.S. 523, 529 (1987). But even
then, courts must not use context to turn an unambiguous
statement into an ambiguous one. See id. at 529-30.
This rule is particularly important in a case like the instant
one, where the existence of the invocation is unambiguous,
but the scope of the invocation might be ambiguous. In Barrett,
the suspect agreed to confess orally but refused to make a
written statement without the presence of a lawyer. The Su-
preme Court found that there was no ambiguity as to the ex-
istence or the scope of the suspect’s invocation, and therefore
concluded that there was no violation when the interrogators

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No. 17-2192 29
did not end the interrogation. But in so holding, the Barrett
court emphasized that courts must apply a “‘broad, rather
than a narrow, interpretation’” to a suspect’s invocation of the
right to cut off questioning. 479 U.S. at 529 (citation omitted).
That is, any ambiguity as to the scope of the invocation must
be construed broadly and in a suspect’s favor. Id.; see also Jack-
son, 475 U.S. at 633 (“[d]oubts must be resolved in favor of
protecting the constitutional claim[]”). Had the scope of Bar-
rett’s invocation been ambiguous, the result might have been
different.
This is the clearly established law as outlined in Miranda
and the cases that followed. The Wisconsin Supreme Court
identified Miranda’s right to cut off questioning. But the Wis-
consin Supreme Court’s application of the above rules—and
failure to apply Barrett’s broad interpretation rule—“resulted
in a decision that was contrary to, or involved an unreasona-
ble application of, clearly established” Supreme Court prece-
dent. 28 U.S.C. § 2254(d)(1).
III. The Wisconsin Supreme Court’s application of
the law was objectively unreasonable
In holding that Smith did not clearly invoke his right to
cut off questioning, the Wisconsin Supreme Court explained:
“Prior to Smith’s statement, Detective Guy had been asking
Smith about his involvement in the theft of the minivan.
Smith had been participating in this portion of the question-
ing in a fairly straightforward and cooperative fashion.” The
Wisconsin Supreme Court then concluded: “When placed in
context it is not clear whether Smith’s statements were in-
tended to cut off questioning about the robberies, cut off ques-
tioning about the minivan, or cut off questioning entirely.”

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30 No. 17-2192
This analysis runs counter to Supreme Court precedent for
the following reasons.
First, the fact that Smith initially cooperated cannot be
used against him to render his invocation ambiguous. See Mi-
randa, 384 U.S. at 445 (“[t]he mere fact that he may have an-
swered some questions or volunteered some statements on
his own does not deprive him of the right to refrain from an-
swering any further inquiries”). Miranda allows a suspect to
cut off questioning “at any time,” effectively accounting for
those situations where a suspect may initially waive his right,
and then later decide to invoke the right to remain silent. Id.
at 474. The Supreme Court recognized that, during an inter-
rogation, a suspect might receive evolving information and a
suspect’s reactions and decisions may evolve over time. In
Thompkins, the Court wrote:
Interrogation provides the suspect with addi-
tional information that can put his or her deci-
sion to waive, or not to invoke, into perspective.
As questioning commences and then continues,
the suspect has the opportunity to consider the
choices he or she faces and to make a more in-
formed decision, either to insist on silence or to
cooperate. When the suspect knows that Mi-
randa rights can be invoked at any time, he or
she has the opportunity to reassess his or her
immediate and long-term interests.
Thompkins, 560 U.S. at 388. That a suspect may freely cut off
questioning at any point in the interrogation, without his
prior cooperation casting doubt on his later invocation, is es-
sential to the protection of Miranda. See Barrett, 479 U.S. at 528
(“Miranda … [gives] the defendant the power to exert some

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No. 17-2192 31
control over the course of the interrogation”) (citation omit-
ted). This remains the rule regardless of the number of topics
discussed during an interrogation. See Mosley, 423 U.S. at 103–
104 (“[t]hrough the exercise of his option to terminate ques-
tioning” a suspect can control “the subjects discussed”).
This leads me to the second reason I see an unreasonable
application of clearly established law here: the notion that a
suspect must be specific about the scope of his invocation be-
cause of the number of topics discussed during an interroga-
tion finds no support in Supreme Court precedent. The ma-
jority opinion concludes that because Smith’s interrogation
covered “two topics”—opposed to one topic like the interro-
gation in McGraw v. Holland, 257 F.3d 513 (6th Cir. 2001)—it
was not “objectively unreasonable” for the Wisconsin Su-
preme Court to hold that Smith did not meet the Thompkins
clear-invocation rule. Ante at 16–17 (emphasis in original).
But whether Smith’s interrogation included one topic or
twelve topics does not matter. The Supreme Court has never
required a suspect to use particular words to cut off question-
ing, or to be specific about the scope of his invocation. See Mi-
randa, 384 U.S. at 445 (a suspect can invoke his right in “any
manner”); Emspak, 349 U.S. at 194 (no “talismanic phrase” or
“ritualistic formula” is required); Davis, 512 U.S. at 458–59 (a
suspect need not “speak with the discrimination of an Oxford
don.”). Yet, under the Wisconsin Supreme Court’s application
of the Miranda case law, each time an interrogation covers
multiple topics, a suspect who initially waives his right to re-
main silent will have to be specific about the scope of his in-
vocation or use particular words to invoke the right to cut off
questioning. Implicit in the Wisconsin Supreme Court’s deci-
sion is the conclusion that if Smith had stated “I don’t want to
talk about the van, the robberies, or anything else,” he might

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32 No. 17-2192
be granted the relief he seeks. This places a heavy burden on
suspects. Even in McGraw, the very case the majority opinion
seeks to distinguish, the Sixth Circuit specifically rejected any
suggestion that a suspect needs to be specific about the scope
of an invocation when the court concluded that a similar state-
ment, “I don’t want to talk about it,” was sufficient to invoke
the right to cut off questioning. See 257 F.3d at 518–19.
This brings me to the final reason the Wisconsin Supreme
Court’s reasoning was contrary to clearly established law:
Even if Smith’s invocation was ambiguous, any ambiguity
went to the scope of his invocation and Barrett requires courts
to apply a “‘broad, rather than a narrow’” interpretation re-
solving any ambiguity in Smith’s favor. 479 U.S. at 529 (cita-
tion omitted). The majority opinion quickly dispenses with
this argument in two ways: (1) by taking the position that any
argument about the scope of Smith’s invocation is procedur-
ally defaulted because Smith failed to raise Barrett before the
state courts, ante 18–19, and (2) by concluding that the Wis-
consin Supreme Court’s reliance on one sentence in Fare v. Mi-
chael C., 442 U.S. 707 (1979), was not “objectively unreasona-
ble,” ante 15, 19. I disagree with the majority opinion on both
fronts.
Smith’s argument regarding the scope of his invocation
under Barrett is not procedurally defaulted. To survive proce-
dural default, a petitioner must exhaust state remedies. See
Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991); Perruquet v.
Briley, 390 F.3d 505, 514 (7th Cir. 2004) (“when the habeas pe-
titioner has failed to fairly present to the state courts the claim
on which he seeks relief in federal court and the opportunity
to raise that claim in state court has passed, the petitioner has
procedurally defaulted that claim”). To exhaust state

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No. 17-2192 33
remedies, a petitioner must “fairly present” federal claims to
the state courts to give the state an “opportunity to pass upon
and correct alleged violations of its prisoners’ federal rights.”
Picard v. Connor, 404 U.S. 270, 275 (1971) (cleaned up). This
requires a petitioner to present the necessary facts and iden-
tify the specific constitutional right violated. Gray v. Nether-
land, 518 U.S. 152, 162–63 (1996). A mere variation in legal the-
ory does not automatically lead to a finding of failure to ex-
haust. Picard, 404 U.S. at 277. So long as a federal petition in-
cludes claims that are the “substantial equivalent” of the
claims presented to the state courts, a claim is exhausted. Id.
at 278; Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001) (“peti-
tioner may reformulate his claims somewhat, so long as the
substance of his arguments remains the same”).
In his state courts briefs, Smith fairly presented the facts
necessary to state a claim for relief. He also identified the spe-
cific constitutional right violated (his Fifth Amendment right
to be free from self-incrimination) and the specific issue (that
he unambiguously invoked his right to cut off questioning but
the detective did not honor his request). This is sufficient to
meet the fair presentment requirement of exhaustion. See
Gray, 518 U.S. at 162–63. I therefore see no failure to exhaust
as it relates to Smith’s argument that, under Barrett, the scope
of his invocation should have been interpreted broadly in his
favor. At most, this argument constitutes a mere variation in
legal theory, which does not prevent the court from consider-
ing the argument on habeas review. See Picard, 404 U.S. at 277.
Further, that Smith did not directly cite Barrett before the state
courts is of no consequence, particularly on habeas review,
where we are tasked with determining whether the

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34 No. 17-2192
Wisconsin Supreme Court applied Miranda and its progeny in
a way that is “objectively unreasonable.” 4
Now to the merits of Barrett as it applies to Smith’s case.
The Wisconsin Supreme Court did not construe the scope of
his invocation broadly. Instead, the Wisconsin Supreme
Court looked to Michael C., 442 U.S. at 707, a pre-Barrett case
about whether a juvenile’s request for a probation officer con-
stituted an invocation of the right to counsel (the Supreme
Court held it did not). The Wisconsin Supreme Court relied
on a single sentence in Michael C. to conclude that Smith did
not clearly invoke his right to cut off questioning:
And respondent’s allegation that he repeatedly
asked that the interrogation cease goes too far:
at some points he did state that he did not know
the answer to a question put to him or that he
could not, or would not, answer the question, but
these statements were not assertions of his right
to remain silent.
Michael C., 442 U.S. at 727 (emphasis added). The majority
concludes that it was not “unreasonable” for the Wisconsin
Supreme Court to determine, based on this one sentence in
Michael C., that Smith’s statements could be viewed as reflect-
ing “‘selective refusals to answer specific questions.’” Ante at
4 Unfortunately for Smith, I am unable to reach the same conclusion about
any argument related to Detective Guy’s troubling and false statement
that he had a right to ask Smith questions despite Smith’s desire to end
questioning. As Justice Prosser of the Wisconsin Supreme Court noted in
his dissent, Detective Guy’s statement “undercut [Smith’s] constitutional
right to remain silent.” It is unclear why Smith’s counsel did not make this
argument before the Wisconsin Supreme Court. And because counsel did
not, the argument is unexhausted.

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No. 17-2192 35
19 (citation omitted). But without a transcript or a retelling of
the specific words that the suspect spoke in Michael C., neither
of which the Supreme Court opinion contains, it is hard to
fathom how Michael C. bears any resemblance to Smith’s in-
terrogation.
More importantly, Smith did not refuse to answer a single
question here and there as in Michael C.—he sought to cut off
questioning completely. In fact, when Smith invoked his right
to cut off questioning by stating “I don’t want to talk about
this” and “I don’t want to talk,” he did so not in response to a
question, but in response to Detective Guy’s description of a
robbery. Detective Guy’s specific questions about the robbery
came after Smith invoked his right to cut off questioning and
after Detective Guy falsely asserted that he had a right to ask
Smith questions. The Wisconsin Supreme Court relied on
these post-invocation questions-and-answers in its analysis,
contrary to Smith v. Illinois, which held that “[u]sing an ac-
cused’s subsequent responses to cast doubt on the adequacy
of the initial request” is “intolerable.” 469 U.S. 91, 98–99
(1984). 5
Critically, nothing in Michael C. limits or calls into question
the broad interpretation rule outlined in Barrett, which has
5 The Wisconsin Supreme Court also pointed to Smith’s proclamations of
innocence. In doing so, the Wisconsin Supreme Court conflated waiver
and invocation, inquiries the Supreme Court has clarified are separate and
distinct. Smith, 469 U.S. at 98–96 (“invocation and waiver are entirely dis-
tinct inquiries, and the two must not be blurred by merging them to-
gether”).

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36 No. 17-2192
neither been overruled nor called into question by subsequent
cases. To the extent there was any ambiguity about the scope
of Smith’s request, the Wisconsin Supreme Court was re-
quired to construe the ambiguity in Smith’s favor. But it did
not. The broad interpretation rule is nowhere to be found in
the Wisconsin Supreme Court’s decision. This resulted in an
unreasonable application of Miranda and its progeny to
Smith’s case.
IV. Smith’s incriminating statements should have
been suppressed
Smith clearly invoked his right to cut off questioning. His
statements, standing alone, were unambiguous as ordinary
people would understand them, and this is sufficient to in-
voke the right. Barrett, 479 U.S. at 529; see Thompkins, 560 U.S.
at 382 (a defendant’s statement that “he [does] not want to
talk with the police” is a “simple, unambiguous statement[]”
that invokes the defendant’s “right to cut off questioning”)
(citations omitted); see State v. Cummings, 850 N.W.2d 915, 933
(Wis. 2014) (Abrahamson, C.J., dissenting) (concluding that
“‘I don’t want to talk about this’ … mean[t] the conversation
[wa]s at an end”). At the very least, Smith’s statements “can
reasonably be construed to be an expression of a desire” to cut
off questioning. See Davis, 512 U.S. at 459.
For added context, Smith’s statements are similar to state-
ments that courts have found to be “unambiguous” and suf-
ficient to invoke the right to cut off police questioning. See,
e.g., Thompkins, 560 U.S. at 382 (“[I do] not want to talk with
the police”); McGraw, 257 F.3d at 518 (6th Cir. 2001) (“I don’t
want to talk about it”); Tice v. Johnson, 647 F.3d 87, 107 (4th
Cir. 2011) (“I have decided not to say any more”); Jones v. Har-
rington, 829 F.3d 1128, 1140 (9th Cir. 2016) (“I don’t want to

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No. 17-2192 37
talk no more”); Anderson v. Terhune, 516 F.3d 781, 784 (9th Cir.
2008) (“I don’t even wanna talk about this no more” and “Uh!
I’m through with this” and “I plead the Fifth”).
Smith’s statements are also substantially like statements
the Wisconsin Supreme Court has found sufficient to invoke
the right to cut off police questioning. See State v. Goetsch, 519
N.W.2d 634, 636 (Wis. Ct. App. 1994) (“I don’t want to talk
about this anymore. I’ve told you, I’ve told you everything I
can tell you.”); see State v. Cummings, 850 N.W.2d 915, 931
(Wis. 2014) (Prosser, J., dissenting) (“Like Goetsch, Smith told
his interrogator that he has given all the information he had.
Smith’s statement—“I don’t want to talk about this”—is iden-
tical to one of Goetsch’s statements … [T]here is no basis for
the different result in [Smith’s] case.”).
By contrast, Smith’s statements are markedly different
from the cases in which courts have decided that a suspect’s
invocation was ambiguous or equivocal. See, e.g., Thompkins,
560 U.S. 370 (mere silence insufficient to invoke the right to
remain silent); Davis, 512 U.S. 452, 455 (“Maybe I should talk
to a lawyer”); United States v. Hampton, 885 F.3d 1016, 1018
(7th Cir. 2018) (“Maybe I should have a lawyer”); United States
v. Walker, 272 F.3d 407, 413-14 (7th Cir. 2001) (suspect “wasn’t
sure whether he should talk to” detective); United States v.
Thousand, 558 F. App’x 666, 671-72 (7th Cir. 2014) (“I think I
need a lawyer, I don’t know, but I want to cooperate and
talk”); United States v. Shabaz, 579 F.3d 815, 819 (7th Cir. 2009)
(“am I going to be able to get an attorney?”) (emphasis in orig-
inal); Mueller v. Angelone, 181 F.3d 557, 573-74 (4th Cir. 1999)
(“Do you think I need an attorney here?”); Diaz v. Senkowski,
76 F.3d 61, 63 (2d Cir. 1996) (“Do you think I need a lawyer?”);

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38 No. 17-2192
United States v. March, 999 F.2d 456, 460 (10th Cir. 1993) (“Do
you think I need an attorney?”).
The majority opinion and the Wisconsin Supreme Court
insist that because Smith included “this” at the end of “I don’t
want to talk,” his statement was ambiguous. See ante at 9, 14–
17. As stated previously, if Smith’s statement was ambiguous
at all, it was as to the scope of his invocation, not the existence
of his invocation. As such, a reasonable officer would have
understood Smith’s statements to be an unequivocal invoca-
tion of the right to cut off questioning, or at least an expression
of his desire to do so. See Davis, 512 U.S. at 458–59. Indeed,
Detective Guy, embodying the reasonable officer, understood
this, or else he would not have protested Smith’s invocation
by falsely insisting on his right as a police officer to continue
the interrogation. See Oregon v. Bradshaw, 462 U.S. 1039, 1046
(1983) (considering officer’s response to suspect’s statement);
Cf. McGraw, 257 F.3d at 518 (“[a]ny reasonable police officer,
knowing that exercise of the right to silence must be ‘scrupu-
lously honored,’ would have understood that when [the sus-
pect] repeatedly said she did not want to talk about the rape,
she should not have been told that that she had to talk about
it”) (emphasis in original). Therefore, Detective Guy’s refusal
to end the interrogation was a violation of Smith’s Miranda
right. Mosley, 423 U.S. at 103; see also United States v. Crisp, 435
F.2d 354, 357 (7th Cir. 1970) (“[o]nce the privilege has been
asserted … an interrogator must not be permitted to seek its
retraction, total or otherwise. Nor may he effectively disre-
gard the privilege by unreasonably narrowing its intended
scope.”).
Because a reasonable officer would understand that
Smith’s statements invoked his right to cut off questioning or

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No. 17-2192 39
at least expressed a desire to do so, I view any debate about
the scope of his invocation as unnecessary and unfortunate.
But what stands out as equally troubling is that Smith’s inten-
tions, no matter how you construe them, were not honored dur-
ing the interrogation. If Smith was trying to cut off question-
ing completely, Detective Guy did not “scrupulously honor”
that request. If Smith was trying to cut off questioning only
about the robberies, Detective Guy did not honor that request.
And if Smith was trying to continue questioning only about
the van, Detective Guy did not honor that request because De-
tective Guy continued to press Smith about the robbery. De-
tective Guy did not honor Smith’s attempt to cut off question-
ing or control the subjects discussed in any fashion. Miranda
gives a suspect “the power to exert some control over the
course of the interrogation.” Barrett, 479 U.S. at 528 (cleaned
up). Detective Guy severely limited, if not eviscerated, the
power Miranda granted Smith during his custodial interroga-
tion.
When we consider the big picture, the consequences of De-
tective Guy’s actions were severe. Detective Guy falsely
stated he had a right to ask Smith questions, demanded that
Smith allow him to finish asking questions, and reminded
Smith that they had “multiple things to talk about.” When De-
tective Guy’s attempts to elicit any information about a rob-
bery failed, he suggested a break. Thirty minutes later, Detec-
tive Guy turned the recording on again, with Smith back on
the record, confessing to a robbery. On these facts—and the
information missing in the record about what happened dur-
ing that thirty-minute break—I cannot be confident that
Smith’s confession was not the product of compulsion. And
the law certainly assumes it was: “any statement taken after
the person invokes his privilege cannot be other than the

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40 No. 17-2192
product of compulsion, subtle or otherwise.” Miranda, 384
U.S. at 474.
V. Conclusion
The majority opinion emphasizes that it affirms the dis-
trict court’s denial of Smith’s petition under the “difficult to
meet” and deferential § 2254 standard. Richter, 562 U.S. at 102.
While § 2254 sets a high bar for habeas relief, that bar is not
impossible to clear. Here, the Wisconsin Supreme Court’s ap-
plication of the Miranda cases—including its failure to apply
the standard in one of those cases, Barrett—was objectively
unreasonable. Smith’s incriminating statements should have
been suppressed and because they were not, he was con-
victed. See Brecht v. Abrahamson, 507 U.S. 619 (1993). I would
reverse the judgment of the district court and remand with
instructions to issue a writ of habeas corpus. I respectfully dis-
sent.

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