In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2486

HOWARD A. ALLEN, JR.,

Petitioner-Appellant,

v.

EDWIN G. BUSS, SUPERINTENDENT, 

Respondent-Appellee.

Appeal from the United States District Court 

for the Southern District of Indiana, Indianapolis Division.

No. 01 C 1658—John Daniel Tinder, Judge.

ARGUED JULY 25, 2008—DECIDED MARCH 11, 2009

Before FLAUM, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. In 1988, consistent with a jury’s

verdict and sentencing recommendation, the Marion

Superior Court in Indiana sentenced Howard A. Allen, Jr.

to death by lethal injection for the murder and robbery

of Ernestine Griffin. Since then, Allen has been asking

the Indiana state courts to consider his claim that he is

mentally retarded and therefore should not be executed.

First, he sought relief when Indiana banned the execution
2 No. 07-2486

of mentally retarded persons in 1994, but the Indiana

courts held that the new statute did not apply retroactively to Allen. Instead, the state trial court, without

holding a hearing, considered his mental retardation as a

mitigating factor and found it did not outweigh the

aggravating circumstance of his crime. In 2002, after the

Supreme Court issued its opinion in Atkins v. Virginia,

536 U.S. 304 (2002), which categorically banned the execution of the mentally retarded, Allen again sought relief

from his execution. But the Indiana Supreme Court determined that because Allen had already litigated his claim

that he was mentally retarded as a mitigating circumstance, he would not be allowed to relitigate his Atkins

claim. We think this decision is contrary to the Supreme

Court’s holding in Atkins, which recognized that there

is a difference between using mental retardation as a

mitigating factor and categorically excluding mentally

retarded persons from the death penalty altogether.

Because Allen has presented evidence that he is mentally

retarded, we vacate the district court’s denial of Allen’s

habeas petition and remand the case to the district court

for an evidentiary hearing to address whether Allen

is mentally retarded under Indiana law.

In light of our standard of review on habeas claims, we

reject Allen’s remaining two arguments. Allen maintains,

pursuant to the Supreme Court’s opinion in Eddings v.

Oklahoma, 455 U.S. 104 (1982), that he should have

received a new penalty phase hearing before a jury and

that the sentencing court ignored some of his mitigating

evidence. Because Allen did not raise the first argument

in the Indiana courts, we find that he procedurally de-
No. 07-2486 3

faulted this claim, which precludes us from reaching its

merits. As to his claim regarding mitigating evidence, the

sentencing court’s order does not make clear that it

ignored Allen’s evidence rather than choosing to give

it little weight so we are constrained by the Indiana

Supreme Court’s finding that the trial court considered

the evidence, which is not objectively unreasonable.

Allen also claims that his statements were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and

were improperly admitted at trial. However, he fails to

establish that the state court’s adjudication of his Miranda

claims resulted in a decision that was contrary to, or an

unreasonable application of, Supreme Court precedent,

or based on an unreasonable determination of the facts.

See 28 U.S.C. § 2254(d)(1) & (2). For these reasons, we

affirm the judgment of the district court on Allen’s Eddings

and Miranda claims.

I. BACKGROUND

Because Allen has raised three distinct issues, we set

forth here a brief summary of the facts and discuss in

greater detail the facts applicable to each issue below. In

1988, a jury convicted Allen of the murder, felony

murder, and robbery of Ernestine Griffin. The State of

Indiana sought the death penalty based on the circumstances of the crime (intentional killing during a robbery). The trial court followed the jury’s recommendation

and sentenced Allen to death.

Allen appealed, but before the Indiana Supreme Court

considered his appeal, it remanded the case to the trial
4 No. 07-2486

court and directed it to issue a written sentencing order.

In the same order, it stated that the trial court should

consider Allen’s evidence of mental retardation as a

mitigating factor. In 1996, the trial court, without holding

a hearing, considered Allen’s evidence and concluded in

a written sentencing order that “the possibility of the

mitigating circumstance of [Allen’s] mental retardation”

did not outweigh the aggravating circumstance of his

crime. In that order, the court also considered and ruled

out other mitigating circumstances, such as Allen’s age

and criminal history.

The Indiana Supreme Court then ordered supplemental

briefing and considered Allen’s appeal in full. It affirmed

Allen’s conviction and sentence. Allen v. State, 686 N.E.2d

760 (Ind. 1997) (“Allen I”). The Indiana Supreme Court

considered no less than seventeen issues but the

following holdings are the only relevant ones: (1) Allen’s

statements to the police at the time of his interrogation

were made voluntarily; (2) Allen was not entitled to the

benefit of Indiana’s amended law prohibiting the execution of the mentally retarded; and (3) the trial court’s

sentencing order properly considered and weighed the

evidence in favor of and against imposing the death

penalty and reflected no constitutional or statutory error.

Allen then sought post-conviction relief on a number of

issues not relevant to this appeal. The Indiana Supreme

Court denied his claims. Allen v. State, 749 N.E.2d 1158

(Ind. 2001) (“Allen II”).

In March 2002, Allen filed a petition for habeas relief

in federal district court. While that petition was pending,
No. 07-2486 5

the United States Supreme Court issued its opinion in

Atkins v. Virginia, 536 U.S. 304 (2002), which held that

“death is not a suitable punishment for a mentally

retarded criminal,” and categorically banned the execution of mentally retarded persons. 536 U.S. at 321.

Allen then moved the Indiana Supreme Court for

permission to file a successive petition for post-conviction

relief. In that motion, Allen claimed that his execution

was prohibited by Atkins. The court held that because

Allen had already litigated that claim, he would not be

allowed to relitigate it. Allen v. State, No. 49S00-0303-SD122, 2003 Ind. LEXIS 581 (Ind. July 15, 2003) (unpublished

order) (“Allen III”). Justice Boehm dissented, contending

that the issue was, in fact, not litigated and that Allen

should be permitted to litigate it.

On September 19, 2006, the district court denied Allen’s

habeas petition without a hearing and entered judgment

against him. The district court concluded that Supreme

Court case law did not entitle Allen to habeas relief. It

also denied Allen’s motion to alter or amend judgment

on May 30, 2007.

II. ANALYSIS

A. Standard of Review

We review de novo the district court’s denial of a habeas

petition. Arredondo v. Huibregtse, 542 F.3d 1155, 1167 (7th

Cir. 2008). Pursuant to the Antiterrorism and Effective

Death Penalty Act (AEDPA), we may grant habeas relief

only if: (1) the state court’s decision was “contrary to, or
6 No. 07-2486

involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court,”

28 U.S.C. § 2254(d)(1), or (2) “the decision . . . was based on

an unreasonable determination of the facts in light of the

evidence presented in the state proceeding.” 28 U.S.C.

§ 2254(d)(2).

A decision is “contrary to” clearly established federal

law “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 decides a case differently than

[the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).

A decision represents an “unreasonable application” of

clearly established federal law “if the state court identifies

the correct governing legal principle from [the Supreme

Court’s] decisions but unreasonably applies that principle

to the facts of the prisoner’s case.” Id. Factual issues

determined by state courts are presumed to be correct,

and the petitioner bears the burden of rebutting this

presumption by clear and convincing evidence. 28

U.S.C. § 2254(e)(1).

B. Allen is entitled to an Atkins hearing.

Allen claims that his execution would violate the

Eighth Amendment because he is mentally retarded. In

Atkins v. Virginia, the Supreme Court construed the

Eighth Amendment to prohibit the execution of mentally

retarded persons, reasoning that such punishment would

be “excessive.” 536 U.S. at 321. The Court did not provide a definition for “mental retardation,” entrusting the
No. 07-2486 7

states with the “task of developing appropriate ways to

enforce the constitutional restriction” upon the execution

of their sentences. Id. at 317 (quoting Ford v. Wainwright,

477 U.S. 399, 416-17 (1986)). Atkins is retroactive on collateral review. Penry v. Lynaugh, 492 U.S. 302, 330 (1989)

(a holding that “the Eighth Amendment prohibits the

execution of mentally retarded persons such as Penry . . .

would fall under the first exception to the general rule

of nonretroactivity and would be applicable to defendants

on collateral review”); see also Davis v. Norris, 423 F.3d

868, 879 (8th Cir. 2005) (Atkins retroactive pursuant to

Penry); In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003).

Indiana defines a mentally retarded individual as

someone who, “before becoming twenty-two (22) years of

age, manifests: (1) significantly subaverage intellectual

functioning; and (2) substantial impairment of adaptive

behavior. . . .” Ind. Code § 35-36-9-2. Indiana enacted

this statute in 1994, prior to the Supreme Court’s decision

in Atkins, but by that time Allen had already been convicted and sentenced to death. That same year, Indiana

also banned the execution of the mentally retarded. Prior

to 1994, Indiana courts could consider mental retardation

as a mitigating factor when deciding whether to impose

the death penalty.

Allen sought appellate relief from his death sentence

under the Indiana statute, claiming that he was mentally

retarded, and submitted affidavits in support of his

claim. In 1996, the Indiana Supreme Court remanded the

case to the trial court and directed it to consider Allen’s

affidavits as mitigating evidence. Critically, the Indiana
8 No. 07-2486

We note that this is not an exhaustive summary of the 1

evidence presented by Allen. We set forth only some of the

relevant evidence for purposes of the discussion.

Supreme Court did not vacate the death sentence, nor

did it instruct the trial court to consider evidence of

mental retardation as a potential bar to Allen’s execution.

See Allen I, 686 N.E.2d at 788.

Allen submitted the following evidence to support his

claim that he is mentally retarded. IQ tests administered 1

when Allen was seven years old revealed he had an IQ

of 70. He was placed in special education classes for

mentally retarded children when he was eight years old.

At the age of ten, he was retested and received a score

of 68, so he remained in special education classes. Mary

Jo Dare Avers and Dr. Richard Dever provided affidavits

on behalf of Allen. Dr. Dever concluded, based on tests

administered to Allen when he was a child and his IQ

scores, that Allen was mentally retarded. Avers, the

Director of Special Education for the Indianapolis Public

School Corporation, opined that Allen had difficulty

processing language as a child and could have difficulty

understanding the consequences of his conduct and be

easily led. Dr. Dever opined that Allen manifested deficits

in adaptive behavior during the developmental period

in his life. There was no expert who contradicted these

conclusions.

Without holding a hearing, the trial court issued an

order stating that it had examined the “mitigating circumstances” and concluded that death was appropriate
No. 07-2486 9

based on the jury’s recommendation. In so doing, the trial

court explained that the “information contained in the

affidavits . . . tend [sic] to show a mitigating factor, but

is a very slight mitigating factor.” It discussed other

evidence in the record, such as the reports of two courtappointed psychiatrists in 1975 who reported that he

was “well oriented and had the capacity to understand

his behavior,” the fact that no witness called by Allen at

his sentencing mentioned mental retardation, and the

court’s own observations of Allen during the trial and

sentencing hearing. It also noted that the pre-sentence

report stated that Allen “had an IQ of 104.” The court

then concluded that “the aggravating circumstance outweighs the possibility of the mitigating circumstance of

mental retardation” and agreed with the jury that death

was the appropriate sentence. The Indiana Supreme

Court affirmed Allen’s conviction and sentence. Although Allen attempted to seek relief under Indiana’s

new statute prohibiting the execution of the mentally

retarded, the court held that the statute did not apply

retroactively to Allen. Allen I, 686 N.E.2d at 786.

After the Supreme Court issued its opinion in Atkins,

Allen moved the Indiana Supreme Court for permission

to file a successive petition for post-conviction relief,

claiming that his execution is prohibited by Atkins. The

Indiana Supreme Court denied the motion. It explained

that because the Indiana courts had already considered

evidence of Allen’s mental retardation as a mitigating

factor, Allen could not relitigate his Atkins claim. Allen III,

2003 Ind. LEXIS 581, at *14.
10 No. 07-2486

The court acknowledged that the issue of Allen’s mental

capacity was presented to the trial court in the context

of whether Allen’s mental retardation was a mitigating

circumstance sufficient to outweigh the aggravating

circumstance. But it reasoned that the factual inquiry

required by this balancing test is the same as the one

required by Atkins: “is the person mentally retarded?” Id.

at *12. After reviewing the paper evidence submitted

by Allen in 1996 and the trial court’s decision to give it

little weight as a mitigating factor in light of other evidence, the Indiana Supreme Court concluded that Allen

“had a full and fair opportunity to litigate the issue of

whether he is mentally retarded.” Id. at *14.

This decision is contrary to the Supreme Court’s holding

in Atkins, which recognized that there is a difference

between using mental retardation as a mitigating factor

and categorically excluding mentally retarded persons

from the death penalty altogether. 536 U.S. at 320-21. One

is a balancing test and the other is a ban. According to

the Supreme Court, the difference between these inquiries matters. The Supreme Court held that reliance on

mental retardation as a mitigating factor was insufficient to protect mentally retarded defendants because

they are less able to give meaningful assistance to their

counsel, and their demeanor may create an unwarranted

impression of lack of remorse. Id. (noting the “lesser

ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial

evidence of one or more aggravating factors”). Because

“[m]entally retarded defendants . . . face a special risk of

wrongful execution,” the Supreme Court found it neces-
No. 07-2486 11

sary to “categorically” exclude mentally retarded persons

from the death penalty. Id. at 320-21. Indeed, the state

court in Atkins considered evidence of the defendant’s

mental retardation as a mitigating factor, but the

Supreme Court held that was not sufficient under the

Constitution. And it bears noting that the state court on

remand held a hearing regarding Atkins’s mental retardation even though a jury already heard evidence

regarding his mental retardation during the penalty

phase of his trial.

Here, Allen’s claim regarding mental retardation received consideration only as a mitigating factor. We

simply cannot reconcile the Indiana Supreme Court’s

determination—that Allen had already litigated his

Atkins claim because he was able to present it as mitigating

evidence—with the Supreme Court’s decision that the

consideration of mental retardation as a mitigating

factor does not sufficiently protect the rights of mentally

retarded persons. See, e.g., Hall v. Quarterman, 534 F.3d

365, 371-72 (5th Cir. 2008) (remanding defendant’s claim

to district court to conduct an evidentiary hearing where

state only considered defendant’s mental retardation

evidence on paper); Hill v. Anderson, 300 F.3d 679, 682

(6th Cir. 2002) (remanding defendant’s claim to state

courts to consider Atkins issue even though jury considered evidence of mental retardation as mitigating

factor in sentencing).

The State maintains that the Indiana courts found Allen

to be not mentally retarded and argues that such

findings are presumed correct on habeas review. How-
12 No. 07-2486

ever, the state courts in this case never considered

whether Allen is mentally retarded under the Indiana

standard for mental retardation. Cf. Murphy v. Ohio, 551

F.3d. 485, 506 (6th Cir. 2009) (state court’s finding that

petitioner was not mentally retarded was a “reasonable

application of and in accordance with Supreme Court

precedent” when state court held an evidentiary hearing

and utilized appropriate standard). Instead, the Indiana

Supreme Court relied on the trial court’s pre-Atkins

determination that Allen’s mental retardation was not

sufficiently mitigating to overcome an aggravating circumstance. That determination was a balancing test, not

a binary inquiry.

And the trial court’s analysis makes clear that it engaged

in a substantively different inquiry from that mandated

by Atkins. First, the trial court did not determine

whether Allen is mentally retarded under Indiana’s test

for mental retardation. That test would have required

consideration of whether Allen “manifest[ed] . . . significantly subaverage intellectual functioning” and “substantial impairment of adaptive behavior” before becoming

twenty-two years of age. Ind. Code § 35-36-9-2. The

trial court’s sentencing order does not even mention,

much less discuss, this test or how it applies to Allen.

Second, the trial court’s sentencing order does not conclude that Allen is not mentally retarded. The sentencing

order states that the information contained in Allen’s

affidavits “tend [sic] to show a mitigating factor, but is a

very slight mitigating factor.” Later, it states that the

“aggravating circumstance outweighs the possibility of the

mitigating circumstance of mental retardation.” (Emphases
No. 07-2486 13

added.) As Justice Boehm aptly notes in his dissent to

the Indiana Supreme Court’s ruling in Allen III, it is not

clear whether the trial court meant that Allen is only

mildly (or slightly) mentally retarded, or whether it

meant that, though Allen might be mentally retarded, that

fact does not mitigate against putting him to death

(or both). 2003 Ind. LEXIS 581, at *16-17. None of these

readings amounts to a conclusion that Allen was not, in

fact, mentally retarded. In light of these statements and

the entirely different standard utilized by the trial court

in reaching its conclusion, the Indiana Supreme Court’s

determination that the trial court found Allen to be not

mentally retarded for the purposes of Atkins is objectively unreasonable.

The State also argues that Allen is not entitled to an

evidentiary hearing on whether he is mentally retarded.

“Where the facts are in dispute, the federal court in

habeas corpus must hold an evidentiary hearing if the

habeas applicant did not receive a full and fair

evidentiary hearing in a state court.” Townsend v. Sain, 372

U.S. 293, 312 (1963), overruled on other grounds, Keeney v.

Tamayo-Reyes, 504 U.S. 1, 5-6 (1992). We have explained

that a hearing is required if: “(1) the petitioner alleges

facts which, if proved, would entitle him to relief and

(2) the state courts, for reasons beyond the control of the

petitioner, never considered the claim in a full and fair

hearing.” Davis v. Lambert, 388 F.3d 1052, 1061 (7th Cir.

2004).

As discussed above, Allen has put forth evidence that

he is mentally retarded as Indiana defines that condition,
14 No. 07-2486

We disagree with the State that Allen’s claim that he is 2

mentally retarded can be rejected on the basis of the record

compiled in the state courts. There are disputes that cannot

be resolved without a hearing. We name only a few examples

here. The Indiana courts relied heavily on a “test used by the

Department of Corrections for assessing prisoners” that showed

Allen had an IQ of 104. That test, unlike the tests administered

when Allen was a child, was administered when Allen was

more than 22 years old. The record reveals that the score did not

result from a standard Wechsler Adult Intelligence Scales test

(what the Supreme Court acknowledged to be the “the standard

instrument in the United States for assessing intellectual

functioning,” Atkins, 536 U.S. at 309 n.5) or a comparable test,

but rather a “Beta” test. The record does not make clear what a

“Beta” test is, or even if it is reliable. More importantly, the

record does not indicate that a score of 104 on a Beta test is

comparable to a score of 104 on a standard Wechsler test or a

Stanford Binet Intelligence Scale. The Indiana Supreme

Court also noted Allen’s mother’s testimony that he was an

“average student.” But the record reveals that Allen was

always in special education classes for mentally retarded children. That he was an average student in special education classes

does not show that he was not mentally retarded.

and a determination that he is mentally retarded would

entitle him to relief. The State disputes that Allen is

mentally retarded, relying on evidence that remains

free from cross-examination. Because the Indiana state

2

courts never considered Allen’s evidence using the

proper Atkins inquiry (which would have required them

to apply the appropriate standard for mental retardation), it is objectively unreasonable to conclude that Allen
No. 07-2486 15

For this reason, Allen’s argument in a post-conviction pro3

ceeding (pre-dating Atkins) that he was misdiagnosed as

mentally retarded has no bearing on his Atkins claim.

had a “full and fair” hearing on his Atkins claim. See, e.g., 3

Walker v. True, 399 F.3d 315, 327 (4th Cir. 2005) (district

court’s refusal to hold evidentiary hearing was error

where petitioner alleged facts that would entitle him to

relief under Atkins).

The State responds that 28 U.S.C. § 2254(e)(2) blocks

Allen from receiving a hearing. But by its own terms, that

statute “applies only to prisoners who have ‘failed to

develop the factual basis of a claim in State court proceedings.’ ” Williams v. Taylor, 529 U.S. 420, 430 (2000)

(quoting § 2254(e)(2)). Allen did not fail to develop the

factual basis of this claim. Indeed (and somewhat confusingly), the State contends that “Allen has fully developed the factual basis for his claim.” Appellee Br. 24. To

the extent that what the State means to argue is that

Allen had a full and fair opportunity to litigate this claim,

we have already rejected this argument.

One point of clarification remains. At oral argument, the

State argued that if we remanded Allen’s case for an

Atkins hearing, the district court would need to determine whether Allen satisfies the “clinical definition” of

mental retardation (using Indiana’s standard) and also

“whether or not Allen is among the class of offenders of

which there is a total national consensus.” This national

consensus, according to the State, requires the district

court to find that Allen has an IQ of 60 or below.
16 No. 07-2486

We reject this argument. Contrary to the State’s assertion, the Supreme Court in Atkins did not establish a

national standard for mental retardation but expressly

left to the states the task of defining mental retardation.

536 U.S. at 317. And to the extent that the Court acknowledged any limiting IQ score, that score was well above 60.

See id. at 309 n.5 (noting that an IQ score “between 70 and

75 or lower . . . is typically considered the cutoff IQ

score for the intellectual functioning prong of the

mental retardation definition.”).

A straightforward application of Atkins to the facts of

this case entitles Allen to a hearing regarding whether

he is mentally retarded and therefore categorically excluded from the death penalty. We remand this case to

the district court. On remand, the district court should

give Allen the chance to develop the factual basis of his

claim and present it at an evidentiary hearing. The

court must then determine, using Indiana’s standard for

mental retardation, whether Allen is entitled to relief

under Atkins.

C. Eddings claim

Next Allen claims that his sentence was imposed in a

manner that violates the rule announced by the Supreme

Court in Eddings v. Oklahoma, 455 U.S. 104 (1982). Specifically, Allen argues that he should have received a new

penalty phase hearing before a jury (rather than the

trial court), and that the trial court failed to consider

his mitigating evidence. After setting out the relevant

facts, we address each argument in turn.
No. 07-2486 17

The record indicates that Allen’s father abandoned Allen and

4

the rest of the family both physically and financially when

Allen was very young. Allen’s mother suffered from alcoholism

and left Allen with his younger siblings for days at a time

when she went on drinking binges. This abandonment forced

Allen to provide food for his younger siblings when Allen

was too young to get a job. Allen resorted to stealing to get

food and was incarcerated as a juvenile in the 1960s. During the

incarcerations, he endured severe corporal punishment

before a court stepped in to end the traumatic beatings.

The Indiana trial court sentenced Allen to death based

on the recommendation of the jury that convicted him. The

Indiana Supreme Court provided a limited remand because the trial court had imposed its sentence orally and,

at the time of Allen’s appeal, Indiana law required a

written sentencing order. It ordered the trial court to

issue a written sentencing order and directed it to

“balance the aggravating circumstances . . . against the

evidence of mitigating circumstances (including both

statutory and non-statutory circumstances).” See Allen I,

686 N.E.2d at 788 n.32. As discussed above, it also

ordered the court to consider Allen’s newly presented

evidence of mental retardation as a mitigating factor.

The trial court issued a written order concluding that

the aggravating circumstance outweighed any mitigating

circumstances and sentenced Allen to be executed.

Despite the fact that Allen presented evidence of his

traumatic and dysfunctional childhood to the trial court

on remand, the trial court’s sentencing order makes no 4

specific mention of it. The sentencing order reviews a
18 No. 07-2486

number of circumstances, such as Allen’s age and his

mental retardation, and then states that it “finds no

other circumstances appropriate for consideration as a

mitigating factor.”

When Allen appealed the trial court’s sentence in Allen I,

he argued (among other things) that the trial court “ignored” mitigating circumstances other than whether or

not he was mentally retarded. These mitigating circumstances included his dysfunctional childhood and his

mental frailty as a child. Allen’s Supp. Br. 11-14. The

Indiana Supreme Court rejected his argument, finding

that the trial court had properly considered his mitigating

evidence and weighed it against the aggravating circumstance. It stated further that “[a]ccepting the facts alleged

about Allen’s childhood does not compel a finding of

mitigating circumstances.” Allen I, 686 N.E.2d at 790.

We first consider what claims are properly before us.

Federal habeas relief is not available if the petitioner

has not exhausted his state court remedies. See 28 U.S.C.

§ 2254(b)(1)(A). This means Allen first must have “fairly

presented the issues” to the Indiana Supreme Court.

Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir. 2006). Allen

argues that the Indiana Supreme Court erred in 1996

when it remanded his case to the trial court to consider

mitigating evidence rather than ordering a new penalty

phase before a jury. According to Allen, a jury should

have heard all of the mitigating evidence anew. This

argument should have been raised on Allen’s appeal after

the trial court issued its sentencing order. Contrary to

Allen’s strenuous assertions, our review of the record
No. 07-2486 19

Allen directs us to page 24 of his supplemental brief (filed 5

after the trial court issued its written sentencing order on

remand). Nowhere in that section, or anywhere in his supplemental brief, does he argue that the Indiana Supreme Court’s

order to the trial court to consider new mitigating evidence

was constitutional error because it should have remanded

the case to a jury.

Allen has made no “showing of cause and prejudice for the 6

default,” nor has he made “a showing that a failure to grant

him relief would work a fundamental miscarriage of justice.”

Thomas v. McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000).

reveals he never raised this argument in the Indiana state

courts. Our conclusion is buttressed by the fact that the 5

Indiana Supreme Court did not address the issue on

appeal. See Allen I, 686 N.E.2d at 788 (reciting arguments 6

raised by Allen on appeal); Allen II, 749 N.E.2d at 1177.

Therefore it is not properly before us. See 28 U.S.C.

§ 2254(b)(1)(A).

We turn to Allen’s argument regarding the substance of

the trial court’s mitigation analysis. Allen argues that the

trial court failed to consider and give effect to

mitigating evidence such as his traumatic childhood and

his ability to adjust in an institutional setting. Although

Allen raised the argument as to the first of these two

mitigating factors in the Indiana courts, we find no mention of his ability to adjust in an institutional setting.

Therefore, we consider only Allen’s claim that the trial

court ignored the evidence regarding his childhood.

In Eddings, the Supreme Court held that because the

imposition of a death sentence demands individualized
20 No. 07-2486

consideration of each defendant’s circumstances, a sentencing court must admit and consider allrelevant mitigating advice. 455 U.S. at 114-15. In that case, the state trial

judge stated that he could not be persuaded by the fact

that Eddings was sixteen years old at the time of the

crime. The judge continued, “Nor can the Court in following the law, in my opinion, consider the fact of this

young man’s violent background.” Id. at 109. The

Supreme Court remanded the case for the state courts

to consider all relevant mitigating evidence and weigh it

against the evidence of the aggravating circumstances,

asserting, “Just as the State may not by statute preclude

the sentencer from considering any mitigating factor,

neither may the sentencer refuse to consider, as a matter

of law, any relevant mitigating evidence.” Id. at 113-14

(emphasis in original).

The rule of Eddings is that a sentencing court may not

exclude relevant mitigating evidence. See also Lockett v.

Ohio, 438 U.S. 586, 604 (1978). But of course, a court may

choose to give mitigating evidence little or no weight.

Eddings, 455 U.S. at 114-15. Allen maintains the trial

court’s sentencing order violates Eddings. He points out

that the order discusses various mitigating circumstances

(such as Allen’s mental retardation and age) to the exclusion of his traumatic childhood, and then states

that it “finds no other circumstances appropriate for

consideration as a mitigating factor.” Allen interprets

these statements together to mean that the trial court did

not consider (and therefore excluded) his traumatic

childhood as an appropriate circumstance for consideration. Were that to be the case, Eddings would mandate

relief for Allen. See, e.g., Wright v. Walls, 288 F.3d 937,
No. 07-2486 21

942-45 (7th Cir. 2002) (district court properly vacated

Wright’s death sentence pursuant to Eddings because the

sentencing judge impermissibly refused to consider

proposed mitigating evidence related to Wright’s background).

Although we acknowledge that the sentencing order

is somewhat cryptic, there is no statement in the sentencing order that expressly indicates that the sentencing

court ignored Allen’s childhood. Cf. Eddings, 455 U.S. at

113-14. Without that, it is plausible that the trial court’s

statement—that it found no other circumstances appropriate for consideration as a mitigating factor—means the

trial court did not find Allen’s childhood to be a “mitigating” circumstance. Cf. Wright, 288 F.3d at 942-45 (rejecting as unreasonable Illinois Supreme Court’s determination that the sentencing judge considered mitigating

evidence of the petitioner’s traumatic history when sentencing court used language of exclusion in rejecting that

evidence). Importantly, that is how the Indiana Supreme

Court saw things. Allen I, 686 N.E.2d at 790. In light of our

standard of review, we must defer to this factual finding.

See, e.g., Todd v. Schomig, 283 F.3d 842, 855 (7th Cir. 2002)

(deferring to the Illinois Supreme Court’s conclusion

that the sentencing court did consider all the mitigation

evidence presented even though the record was ambiguous).

D. Miranda claim

Allen also claims that the trial court’s admission of his

statements to the police, which he contends were taken in
22 No. 07-2486

violation of Miranda v. Arizona, 384 U.S. 436 (1966), violated

his Fifth Amendment rights. In particular, he argues that

the police did not adequately advise him of his Miranda

rights and that his confession was coerced and therefore

involuntary. See Dickerson v. United States, 530 U.S. 428, 433-

34 (2000).

The relevant facts are not in dispute. On July 14, 1987,

Ernestine Griffin’s next-door neighbor found Griffin’s dead

body in her home. She had been murdered with a butcher

knife. The neighbor told officers that a man named

Howard Allen had been at Griffin’s house earlier that day.

That afternoon, two detectives questioned Allen at his

workplace (a carwash) and took him to the station. The

state contends, and Allen does not dispute, that he was not

a suspect then and was free to leave. While he was

being questioned at the station, crime scene investigators

discovered a slip of paper with Allen’s phone number on

it in the victim’s house. At that point, Detective Crooke

read him his Miranda rights, and Allen waived his rights

in writing. Detective Crooke then proceeded to interrogate Allen. 

During this questioning, Detective Crooke told Allen

he did not think he was being truthful, and Allen volunteered to take a lie detector test. At 11:00 p.m. that

evening, Allen was given a lie detector test by Detective

Logsdon, a polygraph specialist. Before giving Allen the

test, Detective Logsdon gave another Miranda warning

orally and peppered it with questionable (and largely

untrue) statements. For example, Detective Logsdon

stated that the right to remain silent “sometimes . . . can
No. 07-2486 23

help and sometimes . . . can hurt” defendants, wrongly

explained that “counsel” didn’t necessarily mean lawyer

but could be “pretty much anybody,” offered to help the

defendant himself, and stated that the court would

appoint counsel that the defendant could not afford.

Allen, who did not ask questions during Detective

Logsdon’s speech, signed a second waiver form that was

identical to the first form he had signed with Detective

Crooke. Detective Logsdon administered the polygraph

and interrogated Allen. He threatened Allen with the

death penalty and represented that the state had evidence

against Allen that it did not actually have. Allen told

Detective Logsdon that he had been to Griffin’s house,

that she had chased him from her house with a butcher

knife, and that he had hit her in the face. He denied

hitting her with a toaster or stabbing her with a knife,

and he never confessed to killing her. At 3:00 a.m., Allen

was permitted to sleep and gave a formal statement the

next day after being given a third Miranda warning by

Detective Wright. He stated that he struck Griffin in

the face.

Although Allen did not object to the introduction of his

statements at trial, he raised Fifth Amendment issues in

his direct appeal. The Indiana Supreme Court considered

his Miranda claims notwithstanding Allen’s failure to

object in the trial court. Allen I, 686 N.E.2d at 769.

The Indiana Supreme Court cited Miranda and rejected

Allen’s arguments that he was not given an adequate

Miranda warning and that his waiver was not voluntary.

First, although the court acknowledged that Detective
24 No. 07-2486

We note that Allen did not argue, either here or before the 7

state courts, that his mental retardation had any effect on the

knowing, intelligent, or voluntary nature of his waiver. So we

do not consider it.

Logsdon’s Miranda warning was “deplorable,” it noted that

Allen had signed a waiver form after properly being

advised of his rights the first time, and then again signed

an identical waiver form after Detective Logsdon’s warning. Because the two warnings were close in time, and

because Allen had confirmed he understood his rights

before speaking to Detective Logsdon, the court concluded that Detective Logsdon’s warning did “not nullify

the prior, proper advisement Allen received.” Id. at 772.

On this basis the court found that Allen had received

adequate Miranda warnings. Second, the court found

Allen’s waiver of his rights was voluntary. Discussing the

totality of the circumstances, specifically Allen’s “conduct,

apparently normal mental capacity, and extensive criminal record,” the court determined that Allen voluntarily

waived his rights. Id. at 773 (footnote omitted).7

Allen’s argument before this court is that the Indiana

Supreme Court’s decision that Detective Logsdon’s

improper Miranda warning and Allen’s subsequent waiver

did not nullify an earlier valid warning and waiver is

contrary to Supreme Court authority. We disagree.

At the outset we note that Allen does not dispute that

he twice waived his rights pursuant to two proper Miranda

waivers. (Recall that Allen was given a Miranda warning

when he first became a suspect, and then again the
No. 07-2486 25

The Indiana Supreme Court did not discuss the third Miranda 8

waiver.

next day before he gave a statement to Detective Wright.)

Nor does he dispute the Indiana Supreme Court’s finding

that the first of those two waivers was made voluntarily.8

See Allen I, 686 N.E.2d at 772. Instead, Allen focuses

exclusively on his encounter with Detective Logsdon,

which occurred in between those two warnings, and

argues that the encounter tainted Allen’s prior and subsequent waivers.

Rather than citing any case law from the Supreme

Court that directly supports this proposition, Allen

directs our attention to the Eleventh Circuit’s opinion in

Hart v. Attorney General of State of Florida, 323 F.3d 884 (11th

Cir. 2003). Hart held that a defendant’s waiver was the

product of deception where police officers made statements that contradicted their earlier Miranda warning. 323

F.3d at 894-95. AEDPA, however, requires us to look at

Supreme Court authority for “clearly established federal

law,” and the Supreme Court has not established a rule

that would give us clear guidance on this issue. See, e.g.,

Duckworth v. Eagan, 492 U.S. 195 (1989) (officer’s misstatement of state law did not invalidate Miranda waiver);

Jackson v. Frank, 348 F.3d 658, 664 (7th Cir. 2003) (“the

uncertainty after Duckworth as to how to balance . . . the

veracity of an officer’s statement of state law and the

provision of proper Miranda warnings-prevents this

court from concluding that the [state] courts unreasonably applied clearly established federal law.”). So we
26 No. 07-2486

are unable to find that the decision of the Indiana

Supreme Court was “contrary to” clearly established

federal law as determined by the Supreme Court.

Turning to whether the Indiana Supreme Court unreasonably applied clearly established federal law to this

case, we come up equally short. Allen argues that Detective Logsdon’s conduct coerced him into making statements and involuntarily waiving his rights. Pursuant to

Supreme Court authority, a “defendant may waive effectuation” of the rights conveyed in the Miranda warnings

“provided the waiver is made voluntarily, knowingly and

intelligently.” Moran v. Burbine, 475 U.S. 412, 421 (1986)

(quoting Miranda, 384 U.S. at 444, 475). The voluntariness

test takes into consideration “the totality of all the surrounding circumstances—both the characteristics of the

accused and the details of the interrogation.” Schneckloth

v. Bustamonte, 412 U.S. 218, 226 (1973). These circumstances may include the length of the interrogation, the

defendant’s maturity, education, and mental health, as

well as whether the defendant was advised of his

Miranda rights. Withrow v. Williams, 507 U.S. 680, 693-94

(1993). But the element of coercion is “crucial” to a determination that a confession was involuntary. Id.; Colorado

v. Connelly, 479 U.S. 157, 167 (1986) (“coercive police

activity is a necessary predicate to the finding that a

confession is not ‘voluntary’ ”).

Here, the Indiana Supreme Court considered the circumstances surrounding Allen’s interrogation and found

that there was no coercion. 686 N.E.2d at 772-73 (discussing Allen’s first voluntary waiver two hours before
No. 07-2486 27

the second waiver, his conduct during the interrogation,

his “apparently normal mental capacity,” and his “extensive criminal record” and familiarity with the interrogation process). We are not able to say that finding

was “objectively unreasonable.” Jackson, 348 F.3d at 662

(quoting Lockyer v. Andrade, 538 U.S. 63 (2003)).

III. CONCLUSION

The judgment of the district court is AFFIRMED in part

and REVERSED in part. We REMAND the case for further

proceedings consistent with this opinion.

3-11-09