In the

United States Court of Appeals

For the Seventh Circuit

No. 07-4031

JEFFREY D. BURR,

Petitioner-Appellant,

v.

WILLIAM J. POLLARD,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04 C 992—Aaron E. Goodstein, Magistrate Judge.

ARGUED SEPTEMBER 11, 2008—DECIDED OCTOBER 15, 2008

Before EASTERBROOK, Chief Judge, and POSNER and EVANS,

Circuit Judges.

EVANS, Circuit Judge. On a March day in 2000, loggers

working in rural Pepin County, Wisconsin, found a dead,

nearly naked body lying in the snow. Hypothermia was

evident, but Mother Nature was not the cause of death. As

a subsequent investigation discovered, the body was that

of Ronald Ross, a man who several other men assaulted at
2 No. 07-4031

He was also convicted of aggravated battery and false 1

imprisonment.

a house party two days earlier in Red Wing, Minnesota.

The body was left for dead in Wisconsin that night. Jeffrey

Burr, 15 years old at the time, was the chief assailant. He

attacked Ross at the party and suggested slitting his throat

as he and three confederates drove the unconscious Ross to

Wisconsin. When Ross came to during the drive, Burr beat

him with a machete. After Burr and his companions

unloaded Ross from the SUV they were using, two of the

men went back to the car, but Burr and one other stayed

with Ross, kicking him several times. Upon returning to

the SUV, Burr said they had “killed him.”

A Wisconsin state court jury convicted Burr of firstdegree murder. Under Wisconsin law, a defendant con- 1

victed of first-degree murder must serve a life sentence.

Wis. Stat. §§ 940.01(1), 939.50(3)(a). The judge, however,

can influence the actual time of confinement by setting an

eligibility date for “extended supervision.” See Wis. Stat.

§ 973.014(1g)(a). When an inmate is released on extended

supervision, he still serves his sentence, but in a different

manner—outside the prison walls. See State v. Larson, 268

Wis. 2d 162, 166, 672 N.W.2d 322, 324 (Wis. Ct. App. 2003)

(“[T]he term extended supervision . . . means supervision

of an individual not incarcerated.”). Extended supervision,

therefore, is synonymous with “supervised release,” a term

used by federal courts. See, e.g., United States v. HattenLubick, 525 F.3d 575, 581-82 (7th Cir. 2008).
No. 07-4031 3

The details of those encounters are not in the record before us. 2

An eligibility date for extended supervision became an

issue at Burr’s sentencing. The presentence report stated

Burr bullied a boy named Andy Rush in school. Burr 2

disputed that allegation, and his attorney asked the court

to strike the information or hold an evidentiary hearing to

determine its validity. The judge went with option one,

stating that he would not consider the allegation for

sentencing purposes. Yet, when it came time to announce

the sentence, that ruling apparently slipped his mind. The

judge remarked, “All through school and his contact with

other kids, [Burr has] been a bully.” After recounting the

events concerning the beating and murder of Ross, the

judge imposed the mandatory life term and ordered that

Burr would be eligible for “extended supervision” after 60

years, in 2061.

The judge subsequently refused to modify the sentence,

stating that he premised the extended supervision date on

the fact that it was a “brutal murder,” and 60 years would

ensure that Burr “would be old enough when he got

out that he couldn’t hurt anyone else.” The judge said

he did not consider the bullying issue “as a factor at

sentencing.”

Burr also contended in his motion to modify that the

judge punished him for exercising his right to remain

silent. Burr did not take the stand at trial, and he declined

to say any thing during the sentencing hearing. The judge

at sentencing said he was disturbed that Burr didn’t show
4 No. 07-4031

“one ounce of remorse or repentance” and had an “absolutely flat affect” in his court appearances. As the judge

saw it, Burr failed to exhibit “tenderness towards anybody

on the stand.”

Later, the judge handed out lighter sentences (at least

in terms of extended supervision) to Noah and Arlo

White, two brothers who were also convicted of Ross’s

murder. There, the judge contrasted their actions in court

with those of Burr. The White brothers, who pleaded

guilty, would be eligible for earlier extended supervision

because they acknowledged their crimes. Burr, on the

other hand, “took no responsibility. He did not say one

word in this court. He never acknowledged any guilt

whatsoever.”

Burr sought relief in the Wisconsin Court of Appeals.

State v. Burr, 266 Wis. 2d 694, 2003 WL 21448555 (Wis. Ct.

App. June 24, 2003). The Wisconsin Court of Appeals

agreed that the sentencing judge erred with respect

to the bullying issue, but Burr’s victory was superficial.

The court concluded that the error was harmless at

best because the judge’s comments at sentencing

“focus[ed] primarily on the crime’s brutal nature and

Burr’s primary role, lack of remorse, antisocial tendencies,

aggressive and violent nature, history of discipline problems, and substance abuse.” Burr had even less success

with a Fifth Amendment argument. The appellate court

decided that the sentencing judge properly considered

Burr’s lack of remorse and gave due weight to that factor.

The Wisconsin Supreme Court denied a request for

review.
No. 07-4031 5

Magistrate Judge Aaron E. Goodstein presided with the 3

consent of the parties.

With his state court remedies exhausted, Burr filed a

habeas corpus petition with the federal district court. The 3

district court dismissed Burr’s petition, concluding that the

“bullying” reference was not necessarily based on the same

information stricken by the judge—the stricken information referred to a specific individual; the judge at sentencing said Burr bullied “kids”—and, in any event, the

appellate court’s harmless error analysis was consistent

with Supreme Court precedent. The court further rejected

the Fifth Amendment claim, explaining that the finding of

no remorse rested upon circumstances other than mere

silence. Burr now appeals the dismissal of his petition.

We review the district court’s factual findings for clear

error and its legal conclusions de novo. Rizzo v. Smith, 528

F.3d 501, 505 (7th Cir. 2008). Under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), a petitioner

is entitled to habeas relief when a decision of the state

court is either “contrary to” or “an unreasonable application of” clearly established federal law as determined by

the United States Supreme Court. 28 U.S.C. § 2254(d)(1);

Williams v. Taylor, 529 U.S. 362 (2000). A decision is

“contrary to” Supreme Court precedent when it relies on

a rule that conflicts with that precedent or reaches a

different result in a similar case. Williams, 529 U.S. at 412-

413. A state court unreasonably applies clearly established

law if it “identifies the correct governing legal principle . . .

but unreasonably applies that principle to the facts of the
6 No. 07-4031

prisoner’s case.” Williams, 529 U.S. at 413. In either event,

error alone is not sufficient; a state court’s decision must

be “objectively unreasonable.” Lockyer v. Andrade, 538

U.S. 63, 76 (2003).

Burr renews his claim here that his due process rights

were violated when the judge considered the “bullying”

allegation after striking it from the record and that his Fifth

Amendment rights were infringed when the judge enhanced the confinement component of his sentence

because he remained silent.

Taking the issues in turn, Burr contends the state court of

appeals applied the wrong standard of review in resolving

the “bullying” claim. The appellate court said the sentencing judge’s error was harmless because there was “no

reasonable probability”—as opposed to “possibility”—that

it resulted in a longer period of incarceration. As Burr

points out, the Supreme Court has held that courts conducting harmless error review on direct appeal should

determine whether the error was “harmless beyond a

reasonable doubt.” Chapman v. California, 386 U.S. 18, 24

(1967). Nevertheless, we agree with the district court that

the state appellate court meant to, and more importantly

did, apply the Chapman standard. Second, and more

important, Chapman is neither here nor there. Just two

terms ago, the Supreme Court held that under AEDPA a

federal habeas court is to apply the more forgiving “substantial and injurious effect” standard from Brecht v.

Abrahamson, 507 U.S. 619, 638 (1993), when it identifies a

constitutional error, regardless of whether the state court

recognized the error and reviewed it for harmlessness
No. 07-4031 7

beyond a reasonable doubt under Chapman. Fry v. Pliler,

127 S. Ct. 2321, 2328 (2007). So the standard varies depending on whether the challenge is made on direct appeal or

collateral review, and the state court made no mistake

when it applied Chapman. Regardless, the question for us

is whether the trial judge’s consideration of a stricken

statement in the PSR had a “substantial and injurious

effect” on Burr’s sentence. It did not. The judge’s reference

to Burr’s history as a bully was little more than an afterthought; the judge considered a number of factors in

reaching his decision, but the driving force was the brutal

nature of the beating and subsequent murder, not Burr’s

run-ins with a particular classmate in school. Burr’s

attorney told us at oral argument that the bullying factor

“had to have a substantial effect” on the eligibility date. But

the record doesn’t compel that conclusion; instead it

supports the state appellate court’s finding of harmless

error. The district court properly denied habeas relief on

this ground.

So, too, did the district court reach the right result with

respect to the Fifth Amendment claim. The Fifth Amendment protects an accused’s right to remain silent at trial

and sentencing. Mitchell v. United States, 526 U.S. 314, 326-

27 (1999). That right, of course, would mean little if a judge

could punish a defendant for invoking it. United States v.

Turner, 864 F.2d 1394, 1405 (7th Cir. 1989). Nevertheless,

silence can be consistent not only with exercising one’s

constitutional right, but also with a lack of remorse. The

latter is properly considered at sentencing because it

speaks to traditional penological interests such as rehabilitation (an indifferent criminal isn’t ready to reform) and
8 No. 07-4031

deterrence (a remorseful criminal is less likely to return to

his old ways). See Bergmann v. McCaughtry, 65 F.3d 1372,

1379 (7th Cir. 1995). The line between the legitimate and

the illegitimate, however, is a fine one. As we have recognized, “sometimes it is difficult to distinguish between

punishing a defendant for remaining silent and properly

considering a defendant’s failure to show remorse in

setting a sentence.” Bergmann, 65 F.3d at 1379 (citing

United States v. Johnson, 903 F.2d 1084, 1090 (7th Cir. 1990)).

But this is not one of those difficult cases. Viewing the

record in its entirety, it is plain that the judge was

bothered by Burr’s lack of sympathy—which can be

expressed in a variety of nonverbal ways—rather than

his silence. The judge’s remark to Burr’s codefendants

that Burr failed “to say one word in this court” only has

force when viewed out of context. Considering the record

as a whole, it was simply another way of noting Burr’s lack

of remorse. Perhaps the judge could have chosen better

words, but the Constitution is not violated by a mere slip

of the tongue. Accordingly, the state appellate court’s

decision rejecting this argument was neither contrary to

nor an unreasonable application of federal law.

The district court’s order denying Burr’s petition for

a writ of habeas corpus is AFFIRMED.

10-15-08