In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3379

JEREMY ARMSTRONG,

Petitioner-Appellant,

v.

DANIEL BERTRAND, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 01-C-744—Thomas J. Curran, Judge.

____________

ARGUED APRIL 3, 2003—DECIDED JULY 17, 2003

____________

Before CUDAHY, MANION and KANNE, Circuit Judges.

CUDAHY, Circuit Judge. Six years ago, fifteen year-old

Jeremy Armstrong shot and killed Robert Drury, his

father’s roommate. A Wisconsin state jury found Armstrong

guilty of first-degree reckless homicide and he was sentenced as an adult to a prison term not to exceed 20 years.

A Wisconsin Court of Appeals affirmed the conviction, and

Armstrong’s petition for review to the Wisconsin Supreme Court was denied. Armstrong appeals now from the

Eastern District of Wisconsin’s denial of habeas relief. We

affirm.
2 No. 02-3379

I.

At age fifteen, Jeremy Armstrong was a high school

student with more than his share of challenges. His time

was divided between his separated parents—his mother

Cheryl, who was mentally ill, and his father Robert, who

was a crack addict. His father’s roommate, Robert Drury,

was also a crack addict and repeatedly threatened Armstrong with both physical and sexual violence. Weapons

were stashed all around his father’s house, and the electricity was sometimes cut off because of unpaid bills.

Despite all of these negative influences, Armstrong was

an honor student with a perfect attendance record.

On June 19, 1997, Armstrong heard that Drury had

come into some money, money that Armstrong felt should

be given to his father for repayment of a debt. Armstrong

went to his father’s house, confronted Drury and demanded the cash, eventually grabbing a gun and pointing

it at Drury. Drury refused to hand over the money. According to witness Christopher Torres, Drury threatened

to kill Armstrong and lunged for the gun. Armstrong shot

Drury dead.

Armstrong was arrested and charged with first-degree

intentional homicide. Following Wis. Stat. § 938.183(2),

under which adult criminal courts have exclusive jurisdiction over juveniles age fifteen or older charged with firstdegree intentional homicide, the state tried Armstrong

as an adult. Three Wisconsin state trial court decisions

are at issue here. First, Armstrong moved to suppress

inculpatory statements made while in police custody.

Armstrong claimed that the interrogation session that

eventually resulted in his confession involved a detective’s

putting his hands around Armstrong’s throat, knocking

Armstrong’s head against a wall and telling Armstrong

that he would be brutally and repeatedly raped in prison. To substantiate these claims of police misconduct, Arm-
No. 02-3379 3

strong took and passed a polygraph test and moved to

admit the results in support of his suppression motion.

Both that evidentiary motion and the underlying suppression motion were denied by the state court.

Second, Armstrong requested jury instructions on perfect and imperfect self-defense. The court, after an instruction conference, refused to give the self-defense

instructions, finding that there was insufficient evidence

to support either theory of self-defense. Oddly enough, on

the second day of jury deliberations, the jury sent two

questions to the trial judge: “What [does] the privilege of

self-defense mean[ ]? Is [Armstrong] allowed the privilege

of self-defense in the act of committing a crime?” The court

then discovered that the instructions sent into the jury

room had accidentally included self-defense language: “If

the defendant was acting reasonably in the exercise of the

privilege of self defense, his conduct did not create an

unreasonable risk to another.” The defense moved for a

mistrial and, in the alternative, for the belated issuance

of an authorized self-defense instruction. Both motions

were denied. Instead, the judge ordered the jury to disregard the mistakenly included self-defense language.

Third, Armstrong brought a motion to dismiss, arguing

that the state statutes that guided the determination

of whether Armstrong would be sentenced as a juvenile

or an adult were unconstitutional as applied to Armstrong.

The trial court denied that motion as well.

Although he had been charged with first-degree intentional homicide, Wis. Stat. § 940.01, the jury convicted

Armstrong on the lesser offense of first-degree reckless

homicide, Wis. Stat. § 940.02. Armstrong argued prior to

sentencing that he should be given a juvenile disposition

under Wis. Stat. § 938.183(2)(a)(2), which permitted adult

criminal courts trying a juvenile to hand over the juvenile

to the juvenile justice system as long as the juvenile
4 No. 02-3379

was not convicted of first-degree intentional homicide

and met certain other criteria. The court considered the

factors for determining the appropriateness of waiver

of eligibility for an adult sentence, Wis. Stat. § 938.18(5),

but found that Armstrong did not qualify for the waiver.

Armstrong was sentenced as an adult to a prison term not

to exceed twenty years. His conviction was subsequently

affirmed by the Wisconsin Court of Appeals. State v.

Armstrong, No. 98-1768-CR, 2000 Wisc. App. LEXIS 184

(Wis. Ct. App. Mar. 7, 2000).

Armstrong’s § 2254 petition in the district court challenged the above three trial court decisions. First, he

argued that the Wisconsin Court of Appeals decision

affirming the trial court’s exclusion of polygraph evidence

was contrary to United States v. Scheffer, 523 U.S. 303

(1998). Second, he argued that the decision affirming the

trial court’s refusal to instruct the jury on self-defense

was contrary to or involved an unreasonable application

of Keeble v. United States, 412 U.S. 205 (1973), and

Mathews v. United States, 485 U.S. 58 (1988). Third, he

challenged the decision affirming the constitutionality

of the statutes governing whether Armstrong would be

sentenced as a juvenile or as an adult. Armstrong argued

that these statutes, as applied to him, were contrary to

or involved an unreasonable application of controlling

Supreme Court due process law. The district court rejected all three arguments and denied Armstrong’s petition.

II.

The Antiterrorism and Effective Death Penalty Act

(AEDPA), 28 U.S.C. § 2254, provides our standard of

review of state court proceedings in petitions for habeas

relief. The AEDPA states, in pertinent part, that habeas

relief may be granted if the state court’s holding “resulted

in a decision that was contrary to, or involved an unrea-
No. 02-3379 5

sonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

A state court decision is “contrary to” a Supreme Court

precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question

of law” or “if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court

precedent and arrives at a result opposite to [that precedent].” Williams v. Taylor, 529 U.S. 362, 405 (2000). Under

§ 2254(d)(1)’s “contrary to” clause, we review the state

court decision de novo to determine, as a question of law,

what is clearly established law as determined by the

Supreme Court and whether the state court decision is

contrary to Supreme Court law. See Schaff v. Snyder, 190

F.3d 513, 522 (7th Cir. 1999).

An application of Supreme Court precedent is unreasonable “if the state court identifies the correct governing legal rule from [the Supreme Court] cases but

unreasonably applies it to the facts of the particular state

prisoner’s case” or “if the state court either unreasonably

extends a legal principle from [Supreme Court] precedent

to a new context where it should not apply or unreasonably refuses to extend that principle to a new context

where it should apply.” Williams, 529 U.S. at 407. Under

the “unreasonable application of” clause of § 2254(d)(1),

we defer to a reasonable state court decision. Anderson

v. Cowan, 227 F.3d 893, 896-97 (7th Cir. 2000).

We review de novo the district court’s decision on

Armstrong’s petition. 28 U.S.C. § 2254(d)(1); Washington

v. Smith, 219 F.3d 620, 627 (7th Cir. 2000).

A.

Armstrong’s first claim is that the Wisconsin Court of

Appeals’ affirmance of the trial court’s exclusion of poly-
6 No. 02-3379

1 Wis. Stat. § 301.132, as in place at the time of Armstrong’s trial,

read in relevant part:

(2) The department [of corrections] may require, as a condition of probation or parole, that a probationer or parolee who

is a sex offender submit to a lie detector test when directed to

do so by the department.

graph evidence was contrary to United States v. Scheffer,

523 U.S. 303 (1998). In Scheffer, the Supreme Court, while

ruling that even a per se ban on polygraph evidence

was constitutionally permissible, stated that “[i]ndividual

jurisdictions . . . may reasonably reach differing conclusions as to whether polygraph evidence should be admitted.” Id. at 312. The use of polygraph evidence in Wisconsin is controlled by State v. Dean, 307 N.W.2d 628 (Wis.

1981), in which the Wisconsin Supreme Court established

a per se ban on polygraph evidence in criminal cases, and

by Wis. Stat. § 301.132,1

 which arguably overruled Dean

in part by specifically authorizing the use of polygraph

tests of convicted sex offenders by the state department

of corrections.

Armstrong argues that Scheffer’s declaration that each

state has the authority to determine the use of polygraph

tests within the state, combined with Wisconsin’s arguable partial statutory overruling of Dean, somehow required the trial court here to accept Armstrong’s polygraph

evidence on the alleged abusive police interrogation incidents. Scheffer provides little support for Armstrong’s

argument. As the district court wrote: “Even if Section

301.132 can be termed an exception to Wisconsin’s per se

rule, [Armstrong] has failed to establish that the United

States Supreme Court has held that, once any exception

is made in a state’s statutory scheme, polygraph evidence

must be admissible in a suppression hearing.” District Ct.

Order at 9 (emphasis added). In other words, Armstrong

cannot explain why, even if we read Wis. Stat. § 301.132
No. 02-3379 7

very broadly to suggest that Wisconsin courts should

reconsider the Dean exclusion of polygraph evidence in

contexts other than those expressly covered by the statute, the trial court should have admitted Armstrong’s

polygraph evidence pursuant to a Supreme Court command. The state courts’ exclusion of the polygraph evidence was not contrary to Scheffer.

B.

Armstrong next claims that the trial court erred by not

giving the requested self-defense instructions. Armstrong

asserts that the failure to give a perfect self-defense

instruction violated Mathews v. United States, 485 U.S. 58,

63 (1988) (“As a general proposition a defendant is entitled

to an instruction as to any recognized defense for which

there exists evidence sufficient for a reasonable jury to

find in his favor.”). Further, Armstrong argues that the

failure to give an imperfect self-defense instruction violated Keeble v. United States, 412 U.S. 205, 208 (1973)

(“[T]he defendant is entitled to an instruction on a lesser

included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him

of the greater.”). According to Armstrong, self-defense

was relevant here because he only fired when Drury

jumped toward Armstrong and, threatening to kill him,

tried to grab his gun.

The trial court refused to give these instructions because it found that there was insufficient evidence to

support either defense. As a matter of Wisconsin law, since

Armstrong was the initial aggressor, he had no right of selfdefense. See Wis. Stat. § 939.48(2)(a); Armstrong, 2000

Wisc. App. LEXIS 184, at *13 (“Like the armed gunman in

Ruff, Armstrong confronted his intended robbery victim

with a gun and announced that he wanted the victim’s

money. At that point, the right of self-defense was not
8 No. 02-3379

available to Armstrong as an excuse or justification for

killing the victim.” (citing Ruff v. State, 223 N.W.2d 446

(Wis. 1974))); see also 40 Am. Jur. 2d Homicide § 148 (2002)

(“The general rule is that one who slays another, to be

justified or excused on the ground of self-defense, must be

without fault in provoking the difficulty.”). Although the

law does permit initial aggressors to regain their right

of self-defense by withdrawing from the conflict and

communicating the cessation of aggression, Wis. Stat.

§ 939.48(2)(b); 40 Am. Jur. 2d Homicide § 152, an armed

gunman does not regain the right of self-defense simply

because his target attempts to defend himself. See Ruff, 223

N.W.2d at 451-53. Because the evidence simply did not

support a defense of self-defense, such a jury instruction

would have been inappropriate. The state courts’ rejection

of the jury instructions was neither contrary to, nor did

it involve an unreasonable application of, clearly established federal law.

Armstrong also argues that the trial court’s refusal to

give a self-defense instruction after the jury asked for

clarification (of the inadvertently included self-defense

language) merits habeas relief. That is, Armstrong’s argument goes, when the jury asked about the inadvertently included self-defense jury instruction language, the

court should have identified self-defense as a proper

defense, rather than telling the jury to disregard the selfdefense language. We see no reason, however, why the

analysis after the jury’s inadvertent exposure to the selfdefense language should be any different from the analysis of the court’s initial refusal to give the self-defense

instructions. Given the mix-up in the jury instructions,

the trial court did its best to minimize confusion by telling the jury to disregard the language it should not

have received in the first place. While this mix-up may

have served as a plausible ground for a mistrial—a motion for mistrial was denied—it certainly did not require
No. 02-3379 9

2 Wis. Stat. § 938.183(2), of Wisconsin’s Juvenile Justice Code,

as in place at the time of Armstrong’s trial, read in relevant part:

(a) . . . [A] juvenile who is alleged to have attempted or

committed a violation of s. 940.01 [first-degree intentional

homicide] or to have committed a violation of s. 940.02 [firstdegree reckless homicide] or 940.05 [second-degree intentional homicide] on or after the juvenile’s 15th birthday . . . is

subject to the procedures specified in chs. 967 to 979 [adult

criminal procedure statutes] and the criminal penalties

provided for the crime that the juvenile is alleged to have

committed, except that the court of criminal jurisdiction

shall impose a disposition specified in s. 938.34 [juvenile

dispositions] if any of the following conditions applies:

. . .

2. The court of criminal jurisdiction convicts the juvenile

of . . . a violation of s. 940.02 or 940.05 . . . and the court

of criminal jurisdiction, after considering the criteria

specified in s. 938.18(5), determines by clear and convincing evidence that it would be in the best interests

of the juvenile and of the public to impose a disposition

specified in s. 938.34. 3 Wis. Stat. § 938.18(5) establishes the circumstances in

which juvenile courts should waive jurisdiction in favor of adult

criminal courts and, by reference from § 938.183(2), the circumstances in which adult criminal courts should waive adult

criminal sentences for juvenile dispositions:

If prosecutive merit is found, the court shall base its decision whether to waive jurisdiction on the following criteria:

(continued...)

the trial court to give jury instructions for which there

was no factual basis.

C.

Armstrong’s last claim is that the state courts should

have found Wis. Stat. §§ 938.183(2) 2

 and 938.18(5)(b)3 to be
10 No. 02-3379

(...continued)

(a) The personality and prior record of the juvenile,

including whether the juvenile is mentally ill or developmentally disabled, whether the court has previously

waived its jurisdiction over the juvenile, whether the

juvenile has been previously convicted following a waiver

of the court’s jurisdiction or has been previously found

delinquent, whether such conviction or delinquency

involved the infliction of serious bodily injury, the juvenile’s motives and attitudes, the juvenile’s physical

and mental maturity, the juvenile’s pattern of living,

prior offenses, prior treatment history and apparent

potential for responding to future treatment.

(b) The type and seriousness of the offense, including

whether it was against persons or property, the extent

to which it was committed in a violent, aggressive,

premeditated or willful manner, and its prosecutive

merit.

(c) The adequacy and suitability of facilities, services and

procedures available for treatment of the juvenile and

protection of the public within the juvenile justice

system, and, where applicable, the mental health system

and the suitability of the juvenile for placement in the

serious juvenile offender program under s. 938.538 or

the adult intensive sanctions program under s. 301.048.

(d) The desirability of trial and disposition of the entire

offense in one court if the juvenile was allegedly associated in the offense with persons who will be charged

with a crime in the court of criminal jurisdiction.

unconstitutional as applied to Armstrong. Section

938.183(2), which references the criteria listed in

§ 938.18(5), instructs criminal courts when a juvenile in

adult criminal proceedings should be given, in place of

an adult criminal sentence, a juvenile disposition. While

not crystal clear, Armstrong’s argument appears to have

two elements: (1) the statutes create an impermissible

irrebuttable presumption of an adult sentence for ju-
No. 02-3379 11

4 The vagueness discussion in Armstrong’s appellate brief is

patchy to the point that we might fairly consider him to have

waived the argument. Nonetheless, we (briefly) consider its merits.

venile defendants charged with intentional homicide, and

(2) the statutes are void for vagueness.4

According to Armstrong, the statutes at issue demand

that all juveniles initially charged with first-degree intentional homicide but convicted of a lesser offense be

sentenced as adults. This is because any such juvenile

would clearly fall on the wrong side of the criteria set out

in § 938.18(5)(b), i.e., whether the offense was violent,

aggressive, premeditated and willful. The operation of

these criteria, according to Armstrong, creates an impermissible irrebuttable presumption and makes any accompanying procedure pointless for the juvenile.

We agree with the state that the statute does not

create such an irrebuttable presumption. Indeed, while

the burden may seem impossibly high, some juveniles

could hypothetically receive a juvenile disposition based

on § 938.18(5)(a), (c) and (d). For example, subsection (a)

takes into account, among other factors, the personality,

mental health, previous record and pattern of living of

the juvenile. Had the trial judge made findings on these

criteria more favorable to Armstrong, it is possible that they

would have outweighed the seriousness of Armstrong’s

offense. The language of the statute, at least, does not

forbid such a hypothetical balancing. Further, even if the

application of the § 938.18(5) criteria always resulted in an

adult disposition for juveniles charged with intentional

homicide, it is not at all clear that the statutes would be

unconstitutional. For one, Armstrong provides us with no

case law suggesting that the state does not have authority

to impose adult sentences on all juveniles charged with
12 No. 02-3379

intentional homicide without a hearing to determine

whether the juvenile should instead be given a juvenile

disposition. Although we agree that the procedure laid

out in § 938.183(2) might, in most cases, have a foreordained outcome for juveniles charged with intentional

homicide, it is certainly preferable to have such a process

to allow for the rare exception than to have no process at

all. At least, Armstrong had an opportunity to present

his case for a juvenile disposition and to appeal the unfavorable decision through the state courts.

Armstrong’s second argument charges that the statutes

are void for vagueness. At the outset we note that it is

unclear to us how statutes that Armstrong argues create

an irrebuttable presumption are at the same time vague.

Armstrong’s argument appears to be that, in part because the statutes create an irrebuttable presumption,

the statutes “do not provide notice as to what the defendant is required to prove and how to prove it.” Armstrong

Br. at 24. Armstrong, citing Rogers v. Tennessee, 532 U.S.

451 (2001), Marks v. United States, 430 U.S. 188 (1977),

and Eastman v. City of Madison, 342 N.W.2d 764, 769 (Wis.

Ct. App. 1984), argues that defendants in his position lack

adequate notice as to what charges they face, what they

stand to lose, what evidence they can bring to the hearing and what standards will be applied in judging them.

We disagree that the statutes are so vague as to be

unconstitutional. Rogers and Marks are simply too far

removed from the facts and law of this case to be applicable here. While they affirm general constitutional

principles of notice, especially in interpreting the Ex Post

Facto Clause, they are simply not on point. Eastman, a

state appellate decision, actually undermines Armstrong’s

argument. The Eastman court found a disputed city ordinance not unconstitutionally vague in part because a

mayoral memorandum in support of the ordinance “set

forth ten specific criteria for determining” the reach of
No. 02-3379 13

the ordinance. Eastman, 342 N.W.2d at 769. Section

938.18(5) delineates clear criteria within the text of the

statute. Armstrong cites no other cases to bolster his

argument that the statutes are so vague as to be unconstitutional, nor does our own review suggest any persuasive argument in his favor.

Moreover, Armstrong does not cite any cases in his

appellate brief to refute the analysis of the lower courts:

the Wisconsin Court of Appeals and the district court

both held that vagueness challenges can only be made

against substantive statutes prohibiting specific conduct

and not against procedural statutes. See District Ct. Order

at 15 (citing Giaccio v. Pennsylvania, 382 U.S. 399, 402-03

(1966), to support the proposition that vagueness challenges cannot be made to procedural statutes); State v.

Dums, 440 N.W.2d 814, 817 (Wis. Ct. App. 1989). We are

wary of attempting to draw such a bright line between

substance and procedure and do not rely on such a distinction. Nonetheless, Armstrong must cite authority that

shows that the state courts’ decision was contrary to or

involved an unreasonable application of federal law, and

he has cited no such United States Supreme Court authority to that end.

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-17-03