1 Pursuant to Federal Rule of Appellate Procedure 43(c), Matthew

J. Frank, the current Secretary of the Wisconsin Department of

Corrections, has been substituted for Jon E. Litscher as Respondent in this case. 

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-1979

FREDERICK G. JACKSON,

Petitioner-Appellee,

v.

MATTHEW J. FRANK,

1

Respondent-Appellant.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00 C 1587—Lynn Adelman, Judge.

____________

ARGUED SEPTEMBER 12, 2002—DECIDED NOVEMBER 6, 2003

____________

Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. When Frederick Jackson told

the detective questioning him that he wanted a lawyer

“right now,” the detective responded that he could not

accommodate Jackson’s request and that he would have to

end the interview. The detective’s statement to Jackson

was, at the very least, misleading: under Wisconsin law
2 No. 02-1979

2 The record does not explain how long Jackson remained in the

hospital or why he was not interviewed for four days after he was

arested. We are similarly left in the dark as to the reason he did

not receive a probable cause hearing until June 5, well past the

presumptive 48-hour limit set out in County of Riverside v.

McLaughlin, 500 U.S. 44, 54-60 (1991), but Jackson does not raise

a Riverside-related claim in this appeal. 

public defenders are available to suspects in custody on an

emergency basis. After his conversation with the detective,

Jackson waived his Miranda rights and confessed. He later

moved to suppress his confession, arguing that his waiver

was not voluntary due to the detective’s misstatement of

Wisconsin law. The Wisconsin trial and appellate courts

found no Miranda violation, and Jackson filed a writ of

habeas corpus, which the district court granted. We find

that the detective’s failure to follow state law does not give

rise to habeas relief and the Wisconsin appellate court’s

decision was not objectively unreasonable in light of the

Supreme Court’s decision in Duckworth v. Eagan, 492 U.S.

195 (1989). Although we share many of the district court’s

concerns about Jackson’s waiver of his Miranda rights, we

find that the district court exceeded the limits imposed on

federal habeas review, and we therefore reverse its grant of

Jackson’s petition.

I. BACKGROUND

On May 29, 1997, Milwaukee police officers investigating

a report of gunshots observed Frederick Jackson’s car

speeding. They pulled Jackson over and noticed a white

substance all over his mouth and teeth, and, after they

asked him about it, Jackson drove away. Jackson was

quickly stopped, arrested, and taken to the hospital. 

Four days after he was arrested,2

 Jackson was interviewed by Milwaukee police detective James Guzinski. The
No. 02-1979 3

detective advised Jackson of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966). Jackson then asked the detective if he could arrange for him to see a lawyer. According to Detective Guzinski’s testimony at the state suppression hearing, he responded:

At that point I told him I could not do that, and

that I was going to end my interview with him. He

stated he wanted to talk to me now. I stated that he

would have to waive his right to an attorney and he

would have to be very clear about that which he

stated yes, he did want to do that because he wanted to cooperate in giving a statement and answering my questions. 

Detective Guzinski further testified as follows:

Q: . . . After you read him his rights and asked him

if he wanted to make a statement, what exact

words do you recall him speaking to you?

A: He asked me if he could have a lawyer right now.

. . . 

Q: Was your sense of that whether you personally

could get him a lawyer—you were physically able to

go and summon a lawyer for him, or was he asking

that someone bring him a lawyer?

A: His intent to me was to have a lawyer present

there, then and there, right now, and if I could arrange for that.

Q: And you said no, I can’t, basically?

A: That’s correct.

. . . 

Q: Okay. Could you as a matter of actual fact have

gotten on the phone at that moment and tried to
4 No. 02-1979

summon an attorney from the Public Defender’s or

somewhere else?

A: No. 

Q: Why not?

A: I had no phone. I’m in a locked room. I have no

access to any of these things. 

Q: You were at the Criminal Justice Facility?

A: That is correct. 

Q: And you had no access to a phone to call anyone?

A: I had no access to leave the room.

Q: You had no way to get him a lawyer at that

point?

A: No. 

According to his testimony, the detective then described to

Jackson the procedure by which public defenders are assigned once charges are established, and Jackson responded

again that he would like a lawyer but also wanted to talk

with the detective. Detective Guzinski testified that the

conversation continued as follows: 

A: I then told him I couldn’t talk to him now because he wished an attorney. 

Q: Did you then get up and begin to leave the room?

A: No. 

Q: What did you do?

A: I paused for a few minutes, and then he reinitiated conversation with me, and at that point is

when he replied to me that he wished to talk to me

now, and that’s when I re-initiated whether or not

he was going to waive his right to an attorney, and
No. 02-1979 5

3 Wisconsin argues that the detective’s statement was not necessarily incorrect because there is no evidence that an attorney

could have been on the scene immediately. We do not share this

overly-literal interpretation of Jackson’s request for a lawyer

“right now,” and we assume, as did the Wisconsin Court of

Appeals, that the detective’s response to Jackson was a misstatement. 

that’s when he replied yes he would, and then I proceeded to go through the thing with the questions

about the occurrence.

 In fact, the detective’s statement about the availability of

a public defender did not accurately describe state law.3

Wisconsin regulations provide that public defenders are

available to individuals in custody prior to their being

charged on an emergency basis, 24 hours per day including

weekends and holidays. WIS. ADMIN. CODE § PD 2.03(2).

Moreover, the public defender must have immediate access

in person or by phone to any individual held in custody, id.

§ 2.03(3), and individuals “who indicate at any time that

they wish to be represented by a lawyer, and who claim that

they are not able to pay in full for a lawyer’s services, shall

immediately be permitted to contact the authority for

indigency determinations. . . .” WIS. STAT. § 967.06. 

Jackson filed a motion to suppress his confession, arguing that he did not knowingly and voluntarily waive his

Miranda rights. After his motion was denied, Jackson pled

guilty to conspiracy to posses cocaine with intent to deliver,

see WIS. STAT. §§ 961.41(1)(cm); 961.48, and was sentenced

to eight years in prison. He appealed the denial of his

motion to suppress to the Wisconsin Court of Appeals,

which affirmed the judgment of the trial court and found

Jackson’s waiver was knowing and voluntary. See State

v. Jackson, 600 N.W.2d 39 (Wis. Ct. App. 1999). The Court

of Appeals relied on the Supreme Court’s holding in
6 No. 02-1979

Duckworth, gleaning from the opinion that “all a person in

custody need be told is that he or she does not have to talk

to the police until that person has a lawyer,” id. at 45 n.2,

and finding that the directive was complied with in Jackson’s case. One judge dissented from the appellate court’s

decision, commenting that Duckworth was distinguishable

from Jackson’s case and the panel opinion did not comport

with Miranda. Jackson’s petition for review to the Wisconsin Supreme Court was denied. 

Jackson then sought a writ of habeas corpus in federal

court under 28 U.S.C. § 2254. The district court granted

Jackson’s petition, finding that Jackson had not voluntarily

waived his Miranda rights. Following the lead of the

dissenting Wisconsin appellate judge, the district court

found Duckworth distinguishable and the failure to suppress the confession to have violated Miranda. After granting his petition, the district court released Jackson from

custody pursuant to Federal Rule of Appellate Procedure

23. At that time, according to the district court, Jackson

had only four months left to serve on his sentence. The

state of Wisconsin appeals the judgment of the district

court.

II. ANALYSIS

The scope of our review of the Wisconsin Court of Appeals’

decision is strictly limited by the standard for habeas

corpus cases promulgated by Congress in the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.

1214. Under the relevant provisions of the AEDPA, an

application for a writ of habeas corpus may not be granted

unless adjudication of the claim in state court “resulted in

a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28
No. 02-1979 7

U.S.C. § 2254(d)(1). Jackson does not suggest that the decision of the Wisconsin appellate court was “contrary to”

clearly established federal law, but instead contends that it

unreasonably applied clearly established federal law to his

case. This is a difficult standard to meet; “unreasonable”

means “something like lying well outside the boundaries of

permissible differences of opinion.” Hardaway v. Young, 302

F.3d 757, 762 (7th Cir. 2002). We have held that under this

criterion, habeas relief should not be granted if the state

court decision can be said to be one of several equally-plausible outcomes. Boss v. Pierce, 263 F.3d 734, 742 (7th Cir.

2001). Indeed, “a federal habeas court may not issue the

writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.

Rather, that application must be objectively unreasonable.”

Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003) (quoting

Williams v. Taylor, 529 U.S. 362, 411, 409 (2000)). 

Within the framework of § 2254(d)(1), we review the

district court’s grant of the petition de novo. Dixon v.

Snyder, 266 F.3d 693, 700 (7th Cir. 2001). And “[w]hether

the state court’s holding involved an ‘unreasonable application’ of clearly established federal law, as determined by the

Supreme Court, is a mixed question of law and fact that we

traditionally also review de novo but with a grant of

deference to any reasonable state court decision.” Schaff v.

Snyder, 190 F.3d 513, 522 (7th Cir. 1999) (emphasis in

original). 

Jackson argues that the Wisconsin appellate court unreasonably applied Miranda v. Arizona, 384 U.S. 436

(1966), when it affirmed the rejection of the motion to

suppress his confession. In Miranda, the Court held that

“[i]f the individual indicates in any manner, at any time

prior to or during questioning, that he wishes to remain

silent, [or if he] . . . states that he wants an attorney, the
8 No. 02-1979

4 Under Edwards, “an accused, . . . having expressed his desire to

deal with the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at

484-85. Jackson does not contest that he reinitiated the conversation with the detective, even after the detective indicated that he

would not interrogate Jackson following his request for counsel.

On the other hand, the detective admits that he did not leave the

interrogation room immediately after Jackson invoked his right

to counsel, but the only testimony provided about this brief period

of time indicates that the detective was gathering his materials

and preparing to leave the room. We do not disagree with the

Wisconsin Court of Appeals and district court’s conclusions that,

given this record, no Edwards violation occurred here. To the

extent Jackson’s decision to resume communication with the

detective may have been based on the detective’s misstatement

about the provision of an attorney, we examine that argument in

our Miranda discussion. 

interrogation must cease. . . .” Id. at 473-74. “Miranda thus

declared that an accused has a Fifth and Fourteenth

Amendment right to have counsel present during custodial

interrogation.” Edwards v. Arizona, 451 U.S. 477, 482

(1981).4

 A defendant may waive effectuation of the rights

articulated in Miranda “provided the waiver is made

voluntarily, knowingly, and intelligently.” Miranda, 384

U.S. at 444. “When a Miranda waiver is challenged, two

distinct questions are presented: whether the waiver was

voluntary, knowing, and intelligent as a matter of fact, and

whether it was involuntary as a matter of law.” Henderson

v. DeTella, 97 F.3d 942, 946 (7th Cir. 1996) (citations

omitted). The parties do not disagree about the factual

circumstances surrounding Jackson’s waiver, and neither

the Wisconsin Court of Appeals nor the parties on appeal
No. 02-1979 9

5 The Wisconsin trial court judge, when ruling on Jackson’s motion to suppress, observed: “I see these—this defendant I think—

it’s something more than just being informed that he’s been

through this in the past. I think that this is a fairly intelligent

defendant we have here. I think that he—and he made some

conscious choices which were his to make and so that it was a

knowing and intelligent waiver.” Although they are not challenged

here, we note that on habeas review, “[t]he state court’s historical

findings as to the petitioner’s knowledge, understanding, and

determination . . . are . . . entitled to a presumption of correctness

under 28 U.S.C. § 2254(e)(1). . . .” Henderson, 97 F.3d at 946. 

focus on the historical components of Jackson’s waiver, such

as his intellect, understanding, or physical condition.5

Instead, Jackson points to the detective’s misstatement of

Wisconsin law as the crux of his claim that his waiver was

involuntary. Closer examination of Jackson’s argument

reveals that it rests on two distinct legal bases for relief: 1)

the detective misstated the availability of a public defender

under Wisconsin law, and 2) the detective’s statement may

have misled Jackson to believe that he did not have a right

under the Fifth Amendment to have counsel present during

interrogation. 

We begin with Jackson’s request for relief under Wisconsin law. Although the detective may have failed to follow

state law by not allowing Jackson to contact the public

defender’s office and mischaracterized the provisions of the

law, review of a habeas petition by a federal court is limited

to consideration of violations of federal law or the United

States Constitution. See 28 U.S.C. § 2254(a) (An application

for a writ of habeas corpus will be entertained “only on the

ground that [the petitioner] is in custody in violation of the

Constitution or laws or treatises of the United States.”);

Williams v. Taylor, 529 U.S. 362, 379 (2000) (explaining

that federal courts have an independent responsibility to

interpret federal law); Gilmore v. Taylor, 508 U.S. 333, 342
10 No. 02-1979

(1993) (recognizing that instructions containing error of

state law do not give rise to federal habeas relief). Neither

Miranda nor any other provision of federal law requires a

public defender to be immediately available to a suspect

during interrogation. See Miranda, 384 U.S. at 474 (noting

that police stations are not required to have a “station

house lawyer” present at all times to advise prisoners).

Thus, to the extent Jackson’s petition alleges violations of

protections guaranteed under state law that are more

generous than those required under federal law, we may

not enforce these state law provisions through habeas relief.

Jackson’s more substantial claim is that the detective’s

statement, beyond its inaccuracy under state law, clouded

his understanding of the Fifth Amendment right recognized

in Miranda to have counsel present during interrogation,

making his subsequent waiver involuntary. Unfortunately,

as the Wisconsin Court of Appeals found, Jackson’s argument runs headlong into the Supreme Court’s decision in

Duckworth v. Eagan, 492 U.S. 195 (1989). In Duckworth,

the Court held that when a suspect was informed that he

would be provided an attorney “if and when [he] went to

court,” his subsequent waiver under Miranda was voluntary. Id. at 203-04. In coming to this conclusion, the Court

rejected the argument that the warning may have suggested to the accused that he could not have counsel present

until he went to court, finding that the argument misapprehended the effect of the phrase on the suspect. Id. The

Court noted that “the initial warnings given to respondent

touched all of the bases required by Miranda,” id. at 203,

and explained that “Miranda does not require that attorneys be producible on call, but only that the suspect be

informed, as here, that he has the right to an attorney

before and during questioning, and that an attorney would

be appointed for him if he could not afford one.” Id. at 204.

In Duckworth, the warning given by the officer accurately

described the procedure for appointment of counsel in
No. 02-1979 11

Indiana, the state in which the incident occurred. In approving the officer’s conduct, the Court made clear that, as

was the case in Indiana, “[i]f the police cannot provide appointed counsel, Miranda requires only that police not

question a suspect unless he waives his right to counsel.”

Id. 

In spite of the many similarities between this case

and Duckworth, Jackson argues that the accuracy of the

Indiana officer’s statement under state law clearly distinguishes Duckworth from this case. He argues that, unlike

the situation before the Court there, in this case the police

could have provided counsel, and therefore the detective’s

remarks violated Miranda. While the Court in Duckworth

certainly noted the accuracy of the officer’s statement under

state law, it is far from clear that the Court’s conclusion

rested on that fact. The Court did not explain, for example,

how, if this were so, differences in the provision of public

defenders under state law should affect a petitioner’s understanding and exercise of his federal constitutional rights.

Instead of looking to provisions of state law, the Wisconsin

Court of Appeals found significant under Duckworth the

fact that Jackson, like Duckworth, received warnings that

comported with Miranda. The court’s focus receives support

from language in Moran v. Burbine, in which the Court

stated that: “[o]nce it is determined that a suspect’s decision

not to rely on his rights was uncoerced, that he at all times

knew he could stand mute and request a lawyer, and that

he was aware of the State’s intention to use his statements

to secure a conviction, the analysis is complete and the

waiver is valid as a matter of law.” 475 U.S. 412, 422-23

(1986). We acknowledge that “[i]n certain circumstances,

the Court has found affirmative misrepresentations by the

police sufficient to invalidate a suspect’s waiver of the Fifth

Amendment privilege,” Colorado v. Spring, 479 U.S. 564,

576 n.8 (1987) (holding waiver voluntary despite failure to

inform suspect of potential subjects of interrogation), but
12 No. 02-1979

6 The Supreme Court in a pre-Miranda case held that a factual

misstatement by an officer is only one factor to be considered

when examining voluntariness of a waiver under the totality of

the circumstances. Frazier v. Cupp, 394 U.S. 731, 739 (1969). It

has not, however, since clarified whether this approach applies in

cases analyzed under Miranda, see United States v. Velasquez, 885

F.2d 1076, 1088 (3d Cir. 1989) (applying Frazier in the Miranda

context), nor has it explained whether cases involving legal

misrepresentations rather than factual ones require different

consideration. 

7 According to the detective in Soffar, the conversation went as

follows: “Soffar asked whether he should talk to the police or obtain an attorney; [the detective] responded that ‘if he was involved

in the crime he should tell the detective he was in it; otherwise he

should get a lawyer.’ Soffar then asked how he could get a lawyer,

and [the detective] asked him if he could afford a lawyer, knowing

that he could not. Soffar laughed, and asked how he could get a

(continued...)

the uncertainty after Duckworth as to how to balance at

least two factors—the veracity of an officer’s statement of

state law and the provision of proper Miranda warnings—prevents this court from concluding that the Wisconsin courts unreasonably applied clearly established federal

law.6

Indeed, at least one other court of appeals has found that

a misstatement of law does not, in and of itself, make a

Miranda wavier involuntary. In Soffar v. Cockrell, 300 F.3d

588 (5th Cir. 2002) (en banc), the Fifth Circuit reviewed a

habeas petition with a pre-AEDPA lens and held that a

detective’s misleading statements did not render a suspect’s

waiver involuntary. In that case, after the suspect asked

about the availability of a court-appointed lawyer, the detective responded that “[i]t could take as little as a day or as

long as a month,” despite the fact that the municipality had

a rule that suspects could not be held for more than 72

hours without being charged. Id. at 591.7

 After the detec
No. 02-1979 13

7 (...continued)

court-appointed attorney, and when he could get one. [The detective] responded that he did not know Harris County procedures,

and guessed that it could take as little as a day or as long as a

month. [The detective] knew that [Harris County] had a 72-hour

rule . . . but did not tell Soffar about it. Soffar then spat into a

trash can and said ‘so you’re telling me I’m on my own.’ [The

detective] remained silent.” Soffar, 300 F.3d at 591. 

tive’s statement, the suspect went on to confess to the

murder of four bowling alley employees. The Fifth Circuit

found the case to be analogous to other holdings in which

waivers were found to be voluntary despite officers’ misleading statements. See, e.g., Mueller v. Angelone, 181 F.3d

557, 573-75 (4th Cir. 1999) (finding suspect’s waiver

voluntary when officer responded to suspect’s question, “Do

you think I need an attorney here?”, by shaking his head

from side to side and stating, “You’re just talking to us”); De

La Rosa v. Texas, 743 F.2d 299, 302 (5th Cir. 1984) (holding

when officer told accused that “it [would] take some time”

before a lawyer could be appointed, suspect’s waiver was

valid because he received warnings that complied with

Miranda). Although the only definitive source of clearly

established federal law under the AEDPA is Supreme Court

authority, Williams, 529 U.S. at 379, the determination by

one of our sister circuits that a misstatement of state law

alone does not vitiate a Miranda waiver certainly makes it

more difficult to conclude that the Wisconsin Court of

Appeals unreasonably applied Supreme Court authority. 

We do not adopt the conclusions of the Fifth Circuit here,

nor do we determine whether, in our view, the detective’s

statements violated the Fifth Amendment. Instead, our

opinion is limited to “the only question that matters under

§ 2254(d)(1)—whether [the] state court decision is contrary

to, or involved an unreasonable application of, clearly established Federal law.” Lockyer, 123 S.Ct. at 1172. Given the

similarities between this case and the Supreme Court’s
14 No. 02-1979

decision in Duckworth, and the lack of clarity regarding the

effect of an officer’s misstatement on the voluntariness of a

Miranda waiver, we cannot find that the conclusion of the

Wisconsin Court of Appeals lies “well outside the boundaries of permissible differences of opinion.” Hardaway, 302

F.3d at 762.

III. CONCLUSION

Accordingly, the decision of the district court is REVERSED

and the case is REMANDED to the district court for entry of

an order denying Jackson’s petition for a writ of habeas

corpus.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-6-03