In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1695

JIMMIE JOHNSON,

Petitioner-Appellant,

v.

WILLIAM POLLARD, Warden,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 2:06-cv-00357-AEG—Aaron E. Goodstein, Magistrate Judge.

ARGUED OCTOBER 30, 2008—DECIDED MARCH 24, 2009

Before EASTERBROOK, Chief Judge, and RIPPLE and

TINDER, Circuit Judges.

RIPPLE, Circuit Judge. Jimmie Johnson was convicted in

Wisconsin state court of reckless homicide, recklessly

endangering safety and being a felon in possession of a

firearm. The trial court admitted into evidence Mr. Johnson’s confession. Mr. Johnson claims that this confession

was the product of police coercion and, consequently,

was inadmissible at trial. After unsuccessfully seeking
2 No. 08-1695

The parties dispute the number of the interviews and the time 1

period over which they occurred. Mr. Johnson claims he was

interviewed five times between October 2 and October 4.

Elsewhere in the record, he indicated that he was interviewed

six times in five days. Our review of the evidence presented

at the hearing on Mr. Johnson’s motion to suppress his confession suggests that Mr. Johnson participated in two interviews

on October 2, submitted to a polygraph examination on the

morning of October 3 and confessed to his involvement in the

shootings in an interview following the polygraph examination

on October 3. 

(continued...)

relief in the Wisconsin courts, Mr. Johnson filed a petition

for a writ of habeas corpus under 28 U.S.C. § 2254. The

district court denied his petition and later denied his

request for a certificate of appealability. We granted a

certificate of appealability on the issue of whether

Mr. Johnson’s confession was voluntary. For the reasons

set forth in this opinion, we affirm the judgment of the

district court.

I

BACKGROUND

On September 20, 2000, two men were fatally injured and

three individuals were wounded when a gunman

opened fire outside a Milwaukee tavern. Mr. Johnson was

implicated in the shootings, and police arrested him on

unrelated charges in the early morning hours of October 2,

2000. The police interviewed Mr. Johnson on multiple

occasions following his arrest. Mr. Johnson initially denied 1
No. 08-1695 3

(...continued) 1

Specifically, the record suggests that Mr. Johnson was arrested

on October 2, 2000, at 4:25 a.m. R.35 at 12. At that time, he was

not considered a suspect in the shootings, but he had been

identified as a potential witness. Id. at 14-15. Two detectives

questioned Mr. Johnson about the shootings from approximately 6:00 a.m. until approximately 8:00 a.m. on the day of his

arrest. Id. at 15. Mr. Johnson was not informed of his Miranda

rights during that interview. Id. at 14. Later that evening, Mr.

Johnson requested a second interview. Id. at 42. Mr. Johnson

was informed of his Miranda rights at the beginning of that

interview. Id. at 36-38. During the interview, which lasted from

approximately 9:00 p.m. until 2:47 a.m., the interrogating

officers allowed Mr. Johnson to take six breaks. Id. at 34, 44, 47.

On October 3, Mr. Johnson submitted to a polygraph examination. Id. at 86. The examination lasted from approximately 11:15

a.m. until 2:58 p.m. Id. at 87, 98. At the beginning of the examination, Mr. Johnson was informed of his Miranda rights and

specifically acknowledged that he was aware that he could call

an attorney at any point during the examination. Id. at 90-94.

At the conclusion of the examination, Mr. Johnson was advised

that the test was complete and was moved to another room.

Id. at 97-99.

Later that evening, Mr. Johnson was interviewed by Lieutenant Jessup and Detective Heier. The interview began at 6:24 p.m.

R.36 at 28. At the beginning of the interview, Mr. Johnson again

was informed of his Miranda rights. Id. at 25-26. Shortly after

the interview began, Mr. Johnson admitted that his earlier

statements were false and confessed to firing a gun into the

crowd on the night in question. Id. at 33-35, 46-49. At approximately 7:00 p.m., after he admitted to firing a weapon, Mr.

Johnson was placed under arrest for homicide. Id. at 35. Lieuten-

(continued...)
4 No. 08-1695

(...continued) 1

ant Jessup indicated that, throughout the interview, Mr. Johnson

appeared cooperative and willing to discuss his involvement

in the incident. Id. at 25. Lieutenant Jessup also stated that

Mr. Johnson never appeared reluctant to answer questions. Id.

at 30-31. During the interview, Mr. Johnson was permitted to

use the restroom and was given a cheeseburger, french fries

and a soda. Id. at 30-32. The interview ended at 9:08 p.m. Id.

at 41.

The record suggests that Mr. Johnson failed the polygraph 2

examination. However, the parties dispute whether Detective

Heier had actual knowledge of the results of the examination

at the time he made the statement.

any involvement in the shootings and agreed to take a

polygraph test, which was administered on October 3,

2000. At the conclusion of the test, Mr. Johnson signed a

statement indicating the following: (1) he knowingly and

intelligently had waived his rights during the examination; (2) his statements during the examination were

made willingly; and (3) he understood that the examination was over and that any questions that the police

might ask and any answers that he might give from that

point forward would not be part of the polygraph examination.

Approximately three hours after the examination concluded, Mr. Johnson was read his Miranda rights and

interviewed by the police. During the interview, Detective

Heier made the following statement: “It’s my understanding you must have failed that polygraph because you’re

still here.” R.37 at 34. The officers made no other

2

remarks about the results of the polygraph examination.
No. 08-1695 5

The only federal case cited by Mr. Johnson was Watts v. 3

Indiana, 338 U.S. 49, 51 (1949) (plurality opinion), which he relied

on for the proposition that, although federal courts ordinarily

should hesitate before overturning a state court’s finding of

fact, they may independently determine the constitutional

import of those facts. He then stated that the Court of Appeals

of Wisconsin reviews the trial court’s factual findings for clear

error, and its constitutional findings de novo. R.6, Ex. I at 43-44.

In his analysis, Mr. Johnson cited six Wisconsin cases: State

v. Dean, 307 N.W.2d 628 (Wis. 1981) (cited for the proposition

that polygraph tests are inadmissible in criminal proceedings,

R.6, Ex. I at 44); State v. Schlise, 271 N.W.2d 619 (Wis. 1978) (cited

(continued...)

Following the statement by Detective Heier, Mr. Johnson’s

demeanor changed, and he confessed to his involvement

in the shooting. He subsequently was convicted by a

Milwaukee County jury of two counts of reckless

homicide, three counts of recklessly endangering safety

and one count of being a felon in possession of a firearm.

Mr. Johnson appealed his conviction to the Court of

Appeals of Wisconsin, claiming that his “confession

was coerced in violation of the Fifth Amendment when

City of Milwaukee police detectives overcame [his] will

by use of the polygraph examination process.” R.6, Ex. I

at 43. Despite framing the issue on appeal in federal

constitutional terms, Mr. Johnson’s brief neither

relied upon federal case law discussing the Fifth Amendment nor specifically referenced those portions of Wisconsin cases that addressed the voluntariness issue

in terms of federal constitutional law; the primary conten3
6 No. 08-1695

(...continued) 3

for the proposition that post-polygraph statements may be

admissible if totally discrete from the preceding polygraph

examination, R.6, Ex. I at 44); State v. Johnson, 535 N.W.2d 441

(Wis. 1995) (utilized to set out a three-part inquiry regarding

when a post-polygraph statement is considered discrete from

a polygraph examination, R.6, Ex. I at 44-45); Turner v. State,

250 N.W.2d 706 (Wis. 1977) (noted for the proposition that

the Supreme Court of Wisconsin has found a six-day interval

between a polygraph examination and a subsequent statement

sufficient to render the statement discrete from the polygraph,

R.6, Ex. I at 45-46); Barrera v. State, 298 N.W.2d 820 (Wis. 1980)

(referred to in support of Mr. Johnson’s claim that confronting

a defendant with test results could be so psychologically

coercive as to require suppression, R.6, Ex. I at 46); McAdoo

v. State, 223 N.W.2d 521 (Wis. 1974) (cited in reference to one

of several factors that a court may consider in determining

whether to allow the admission of a post-polygraph statement, R.6, Ex. I at 46). 

Of the cases cited in Mr. Johnson’s brief, two cases—Dean, 307

N.W.2d 628, and Johnson, 535 N.W.2d 441—do not discuss

whether the confessions at issue were voluntary. The remaining

cases do address the voluntariness issue, but their discussion

of federal case law is limited. In Turner, 250 N.W.2d at 715-17,

the Supreme Court of Wisconsin relied solely on state law in

determining whether the defendant’s confession was voluntary. In Barrera, 298 N.W.2d at 291-93, the court indirectly

referenced federal law in its totality-of-the-circumstances

analysis. In Schlise, 271 N.W.2d at 626-30, and McAdoo, 223

N.W.2d at 526-27, the court referred to federal case law, but

primarily relied on state case law in its analyses.

(continued...)
No. 08-1695 7

(...continued) 3

Mr. Johnson argued, based on the above-cited cases, that

“[t]he determination of whether a post-polygraph statement is

sufficiently discrete from the polygraph examination and, thus,

admissible must be made after a careful reference to . . . all of the

relevant factors and the totality of the circumstances of an

individual case.” R.6, Ex. I at 47. He then asserted that his

confession, which was made during the interview following

his polygraph examination, should be suppressed. He claimed

that Detective Durbis initially proposed that he take the polygraph examination. R.6, Ex. I at 48. He also stated that he “was

unaware that his interview . . . on October 3, 2000 was not an

extension of the polygraph process.” Id. He further contended

that Detective Heier’s statement about the results of the polygraph was intended to overcome his will after two days of

interrogation. Id. Mr. Johnson claimed that, given his naivete3

and lack of education, Detective Hargrove’s attempt to describe

the polygraph examination process and “sanitize it from the

police interrogation process” was insufficient to negate the

coercive effect of Detective Heier’s statements. Id. at 49. Therefore, he argued, because the police did not attempt to make

him aware that the interrogation following the polygraph

examination was not simply another phase of the examination,

and because they referenced the results of the examination

during that interview, the interview and the polygraph examination should be considered a single event that must be suppressed.

tion in his brief was that the polygraph examination and

the interview following the examination constituted a

single event, and, as such, any statements made during

the examination and the interview were inadmissible.

The Court of Appeals of Wisconsin held that the post-
8 No. 08-1695

polygraph interview was distinct both in time and in

location from the polygraph examination. The appellate

court therefore affirmed Mr. Johnson’s conviction, and

the Supreme Court of Wisconsin denied Mr. Johnson’s

petition for discretionary review.

After unsuccessfully challenging his conviction on

appeal, Mr. Johnson sought collateral post-conviction

relief in the Wisconsin state courts. The trial court denied

relief and the judgment was affirmed by the Court of

Appeals of Wisconsin. The Supreme Court of Wisconsin

denied review.

Mr. Johnson filed this habeas corpus petition in the

United States District Court for the Eastern District of

Wisconsin. The district court rejected his petition and

denied his request for a certificate of appealability.

We granted his request for a certificate of appealability

on the question of whether his confession was involuntary.

II

DISCUSSION

This appeal presents two issues: First, the State contends

that we are precluded from reviewing Mr. Johnson’s

federal constitutional claim because he did not present

that claim in the state-court proceedings. Second,

Mr. Johnson argues that the state court violated his

Fifth Amendment rights by admitting the confession

into evidence. 
No. 08-1695 9

See also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“Before seeking 4

a federal writ of habeas corpus, a state prisoner must exhaust

available state remedies . . . .”); Malone v. Walls, 538 F.3d 744, 753

(7th Cir. 2008). 

A.

The State submits that Mr. Johnson failed to present his

Fifth Amendment claim to the Wisconsin courts. In its

view, therefore, we are precluded from considering the

merits of Mr. Johnson’s petition. “Whether a party has

procedurally defaulted his claim is a question of law that

we review de novo.” Malone v. Walls, 538 F.3d 744, 753

(7th Cir. 2008) (citing Lieberman v. Thomas, 505 F.3d 665,

670 (7th Cir. 2007)).

Our authority to grant a petition is limited by 28 U.S.C.

§ 2254(b), which provides that “[a]n application for a

writ of habeas corpus . . . shall not be granted unless . . . the

applicant has exhausted the remedies available in the

courts of the State.” Implicit in the exhaustion require4

ment is the related condition which requires petitioners

to “fairly presen[t] federal claims to the state courts in

order to give the State the opportunity to pass upon

and correct alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (alteration

in original) (citations and quotation marks omitted); see

also O’Sullivan v. Boerckel, 526 U.S. 838, 845, 848 (1999)

(“To . . . protect the integrity of the federal exhaustion

rule, we ask not only whether a prisoner has exhausted

state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly pre-
10 No. 08-1695

See also Baldwin, 541 U.S. at 29 (“[a] prisoner must fairly 5

present his claim in each appropriate state court” (citations and

quotation marks omitted)); Lewis v. Sternes, 390 F.3d 1019, 1025

(7th Cir. 2004).

sented his claims to the state courts.” (citations and

quotation marks omitted)); Hough v. Anderson, 272 F.3d

878, 892 (7th Cir. 2001). In order to satisfy this requirement, a petitioner must fairly present his federal claims at

each level of the state’s established review process. See

Woodford v. Ngo, 548 U.S. 81, 92 (2006) (noting that “[a]

state prisoner is generally barred from obtaining federal

habeas relief unless the prisoner has properly presented

his or her claims through one complete round of the

State’s established appellate review process” (citations

and quotation marks omitted)). Failure to do so con- 5

stitutes procedural default that precludes review by

federal courts. See id. at 92 (“the sanction for failing to

exhaust properly (preclusion of review in federal court)

is given the separate name of procedural default”); Lewis

v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004).

However, we need not address the procedural default

issue raised by the State because Mr. Johnson’s claim

clearly fails on the merits. See 28 U.S.C. § 2254(b)(2); see,

e.g., Bell v. Cone, 543 U.S. 447, 451, 451 n.3 (2005) (declining

to address whether the court of appeals correctly held that

the petitioner had not defaulted on his claim and citing

28 U.S.C. § 2254(b)(2) for the proposition that “an application for habeas corpus may be denied on the merits,

notwithstanding a petitioner’s failure to exhaust in state

court”); Lambrix v. Singletary, 520 U.S. 518, 525 (1997)
No. 08-1695 11

Citation to Supreme Court authority by a state court is not an 6

essential ingredient of resolving a federal constitutional issue.

(continued...)

(acknowledging that a federal court may deny a petition

for habeas corpus on the merits without resolving whether

the issue was presented fairly to the state courts). 

B.

Mr. Johnson maintains that the admission of his confession violated his Fifth Amendment rights because the

confession was involuntary. Ordinarily, our review of a

habeas petition is governed by the standards set forth in

the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2254, which provides that

habeas relief

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings

unless the adjudication of the claim—

(1) 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; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). Here, the Court of Appeals of Wisconsin, while it did not rely explicitly on federal authority,6
12 No. 08-1695

(...continued) 6

Mitchell v. Esparza, 540 U.S. 12, 16 (2004) (per curiam); Early v.

Packer, 537 U.S. 3, 8 (2002) (per curiam). 

Our previous opinions have equated this statutory standard 7

with substantive de novo review, Carlson v. Jess, 526 F.3d 1018,

1024 (7th Cir. 2008), and plenary review, see, e.g., Harrison v.

McBride, 428 F.3d 652, 665, 668-70 (7th Cir. 2005) (engaging in

a review of the facts surrounding the petitioner’s trial and

concluding that the petitioner “did not receive a trial by a

judge free from bias,” id. at 670).

appears to have resolved the federal issue of the voluntariness of the confession on the merits. Therefore, the applicable standard of review is the one contained in

section 2254(d). Under that standard,

A state-court decision is contrary to this Court’s

clearly established precedents if it applies a rule that

contradicts the governing law set forth in our cases, or

if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a

different result. A state-court decision involves an

unreasonable application of this Court’s clearly established precedents if the state court applies this

Court’s precedents to the facts in an objectively unreasonable manner. 

Brown v. Payton, 544 U.S. 133, 141 (2005) (citations and

quotation marks omitted). However, we hasten to add

that, if the Wisconsin court did not reach the merits of the

federal claim and a de novo standard of review is appropriate, see 28 U.S.C. § 2243, the result here would be the

7

same.
No. 08-1695 13

A confession is involuntary when it was given in circumstances that were sufficient to overbear the confessor’s

free will. Lynumn v. Illinois, 372 U.S. 528, 534 (1963); see

also Weidner v. Thieret, 866 F.2d 958, 963 (7th Cir. 1989)

(“Interrogation becomes constitutionally objectionable

only when the circumstances prevent the person being

questioned from making a rational choice.”). We examine

the totality of the circumstances surrounding a confession to determine whether the confession is voluntary.

Miller v. Fenton, 474 U.S. 104, 110, 112 (1985); see also

Gilbert v. Merchant, 488 F.3d 780, 791 (7th Cir. 2007).

Therefore, we must determine whether the circumstances surrounding Mr. Johnson’s confession would

have interfered with his “free and deliberate choice of

whether to confess.” Holland v. McGinnis, 963 F.2d 1044,

1051 (7th Cir. 1992) (citations and quotation marks omitted). Applying this standard, we conclude that the

record does not support a finding that Mr. Johnson’s

confession was the product of police coercion.

The parties disagree on both the circumstances surrounding Mr. Johnson’s confession and the impact those

circumstances had on Mr. Johnson’s free will. Mr. Johnson

contends that his confession was the involuntary

product of coercive interrogation tactics. Specifically,

Mr. Johnson points to two allegedly coercive tactics that,

in his view, were designed to overcome his free will.

First, he claims that Detective Heier taunted him by

indicating that he had failed his polygraph examination.

Mr. Johnson submits that, because Detective Heier was

unaware of the results of the polygraph at the time, his

statement could have had no purpose other than to
14 No. 08-1695

“humiliate [him] into inculpating himself.” Appellant’s Br.

19. Second, Mr. Johnson takes issue with the number of

times that he was interrogated; he claims that “the repeated interrogations demonstrate[d] . . . that the

police would not stop until [he] said that he was the

shooter.” Id. at 20. Mr. Johnson asserts that these two

tactics, taken together, created a coercive environment,

overcame his free will and caused him to give an involuntary confession.

The State submits that neither Detective Heier’s statement nor the frequent interrogations were so coercive as

to render Mr. Johnson’s confession involuntary. It asserts

that, at the time Detective Heier made the statement,

he knew that Mr. Johnson had failed the polygraph

test; therefore, the statement was not coercive. See Barrera

v. Young, 794 F.2d 1264, 1266, 1270-71 (7th Cir. 1986)

(concluding that the fact that a polygraph examiner

accurately informed the petitioner about the results of

his co-defendant’s polygraph examination did not

render the petitioner’s confession involuntary). Furthermore, the State contends, even if Detective Heier did not

know the results of the polygraph examination at the time

he made the statement, the use of “deception by an interrogator does not automatically invalidate a confession.”

Sotelo v. Indiana State Prison, 850 F.2d 1244, 1251 (7th Cir.

1988). The State claims that Detective Heier’s statement

and the repeated interrogations, when viewed in light

of the fact that Mr. Johnson repeatedly was reminded of

his Miranda rights, were not so coercive as to compel

Mr. Johnson to give an involuntary confession.
No. 08-1695 15

We begin our analysis by evaluating Detective Heier’s

allegedly coercive statement. Mr. Johnson claims that

Detective Heier falsely, or at least unknowingly, told

Mr. Johnson that he had failed his polygraph examination. Appellant’s Br. 19. As an initial matter, we doubt

that Mr. Johnson’s characterization of Detective Heier’s

statement is correct. A fair reading of the statement—“It’s my understanding you must have failed that

polygraph because you’re still here”—shows that the

statement was not tantamount to a claim that Mr. Johnson

had failed the polygraph examination. Rather, the statement reflected the detective’s belief that, had Mr. Johnson

passed the polygraph examination, he would have been

released. Moreover, even if we were to assume that

Detective Heier did not know the outcome of the polygraph examination and lied about the results to Mr.

Johnson, the fact that the detective made a false or misleading statement during the course of the interrogation

would not, by itself, render Mr. Johnson’s confession

involuntary. United States v. Harris, 914 F.2d 927, 933 (7th

Cir. 1990); Sotelo, 850 F.2d at 1251. The fact that an officer

misrepresents the strength of the evidence against a

defendant is insufficient, standing alone, to render an

otherwise voluntary confession inadmissible. Holland, 963

F.2d at 1051; Clanton v. Cooper, 129 F.3d 1147, 1158 (10th

Cir. 1997). An interrogating officer’s misrepresentations

are neither dispositive of nor irrelevant to the question of

whether a defendant’s statement was voluntary. Rather,

when an interrogator makes a false statement to a defendant, we must evaluate the extent to which the misrepresentation “[overcame the defendant’s] will by distorting
16 No. 08-1695

an otherwise rational choice.” Holland, 963 F.2d at 1051;

see, e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969) (“The

fact that the police misrepresented the statements that

[the co-defendant] had made is, while relevant, insufficient . . . to make this otherwise voluntary confession

inadmissible.”).

The misrepresentation at issue in this case, if it may be

considered a misrepresentation at all, is not the type of

false statement that would “distort[] the alternatives

among which [Mr. Johnson was] being asked to choose.”

Weidner, 866 F.2d at 963. This conclusion is consistent

with the holdings of the Supreme Court and our sister

circuits. See Lynumn, 372 U.S. at 533-34 (concluding that

the defendant’s confession was coerced when the police

implied that she would lose custody of her children and

her state financial benefits if she did not cooperate);

United States v. Lopez, 437 F.3d 1059, 1066 (10th Cir. 2006)

(determining that the agents’ misrepresentation of the

evidence against the defendant, combined with their

promise that if the defendant confessed he would be

sentenced to six years’ imprisonment, rather than sixty,

rendered the confession involuntary); United States v.

Anderson, 929 F.2d 96, 98, 102 (2d Cir. 1991) (holding

that the agent’s statement that speaking with a lawyer

would permanently preclude the defendant from cooperating with police rendered the defendant’s first

confession involuntary). Detective Heier’s statement

related to the strength of the State’s case; it would not

have caused Mr. Johnson to “consider anything beyond

his own beliefs regarding his actual guilt or innocence,

his moral sense of right and wrong, and his judgment
No. 08-1695 17

regarding the . . . evidence linking him to the crime.”

Holland, 963 F.2d at 1051. The Supreme Court, this court

and our sister circuits routinely have held that such

misrepresentations are insufficient, in and of themselves,

to render a confession involuntary. See, e.g., Frazier, 394

U.S. at 737, 739 (false statement that the co-defendant

had confessed); Holland, 963 F.2d at 1051 (false claim that

a witness had seen the defendant’s vehicle at the crime

scene); Lucero v. Kerby, 133 F.3d 1299, 1311 (10th Cir. 1998)

(misrepresentation regarding fingerprint evidence

found in the victim’s home); Ledbetter v. Edwards, 35 F.3d

1062, 1066, 1070 (6th Cir. 1994) (falsified fingerprintcomparison chart, claim that three witnesses had identified defendant, and staged victim identification). In the

absence of other elements indicating that Mr. Johnson’s

will was overborne, Detective Heier’s statement, even if

false, would not have rendered Mr. Johnson’s confession involuntary.

We now turn to Mr. Johnson’s second contention: that

the frequency with which he was interrogated suggested

that the police would continue to question him until he

confessed to the shooting. When evaluating whether a

defendant’s confession is voluntary, we certainly may

consider “the repeated and prolonged nature of the

questioning” to which the defendant was subjected. Smith

v. Duckworth, 910 F.2d 1492, 1496 (7th Cir. 1990) (citations

and quotation marks omitted). However, the frequency

with which a defendant was interrogated is only one

of several factors that we consider in our totality-of-thecircumstances analysis. See Gilbert, 488 F.3d at 791 (noting

that courts may consider, among other things, the
18 No. 08-1695

For the purposes of this appeal, we consider the polygraph 8

examination to constitute an interview.

Lieutenant Dubis testified that they did not inform Mr. 9

Johnson of his Miranda rights at the 6:00 a.m. interview on

October 2 because Mr. Johnson was not considered a suspect

at that time. R.35 at 14-15. However, Mr. Johnson was informed

of his Miranda rights at the beginning of his second interview,

the beginning of his polygraph examination and the beginning

of the interview following the polygraph examination. R.35

at 37, 90-94; R.36 at 25-26.

age, experience, education, background and intelligence

of the accused, the length of the questioning, and

other circumstances surrounding the interrogation when

evaluating whether a confession was voluntarily given).

After reviewing the record, we must conclude that,

although the fact that Mr. Johnson was questioned on

at least four separate occasions before he confessed to 8

the shooting certainly is relevant and probative on the

issue of the voluntariness of his confession, other

factors weigh against a conclusion that Mr. Johnson’s

confession was coerced. Mr. Johnson has not alleged

that the conditions of his detention were unduly harsh;

the record reflects that Mr. Johnson was offered food,

beverages, cigarettes and short breaks during two of his

interviews. R.35 at 47; R.36 at 30-32. The record further

indicates that Mr. Johnson was informed of his Miranda

rights at the outset of all but one of his interactions with

his interrogators. Cf. Haynes v. Washington, 373 U.S. 503, 9

509-11, 514 (1963) (concluding the defendant’s confession

was involuntary where police refused to allow him to
No. 08-1695 19

make a phone call and did not inform him of his right to

remain silent or his right to consult an attorney). Notably,

one of the interviews that Mr. Johnson takes issue

with—the October 2 interview that lasted from 9:00 p.m.

until 2:47 a.m.—was initiated at Mr. Johnson’s request.

R.35 at 42; R.36 at 72. This fact, which Mr. Johnson does

not address on appeal, casts some doubt on Mr. Johnson’s

claim that he believed that the investigators would continue to interrogate him until he confessed to the shooting.

In sum, the circumstances surrounding Mr. Johnson’s

confession were not so coercive as to render Mr. Johnson’s

confession involuntary. Although Mr. Johnson was interviewed by detectives on four separate occasions, there is

no evidence that Mr. Johnson was deprived of physical

necessities or prevented from taking breaks during

those interrogations. Also, with the possible exception of

the interview requested by Mr. Johnson, the interviews

were not unduly lengthy. See Ledbetter, 35 F.3d at 1070

(considering the fact that the defendant “had been questioned for a reasonable amount of time” and “had been

allowed the necessary creature comforts” in reaching

its conclusion that the defendant’s confession was voluntary); cf. United States v. Hull, 441 F.2d 308, 312 (7th Cir.

1971) (concluding that the defendant’s confession was involuntary when he was subjected to continuous interrogations for nearly twelve hours). Furthermore,

Mr. Johnson is neither too young nor too naive to comprehend the meaning of the Miranda warnings that repeatedly were given to him; he is an adult who willingly

interacted with his interrogators. In light of these facts,

we conclude that, even if Detective Heier deliberately
20 No. 08-1695

misrepresented the results of the polygraph examination,

the circumstances surrounding Mr. Johnson’s confession

were not so coercive as to render the confession involuntary. Cf. Woods v. Clusen, 794 F.2d 293, 297 (7th Cir. 1986)

(concluding that the officers “hindered [the juvenile

defendant’s] ability to make a knowing and voluntary

choice . . . to waive his rights” by arresting the defendant

in his bedroom in the early morning, stripping him of

his clothes, giving him institutional clothing—but not

shoes—and misrepresenting the evidence against him

while making “clearly intimidating statements”).

Assessing all of these facts, we cannot conclude that the

statement by Detective Heier and the frequency with

which Mr. Johnson was interrogated undermined

Mr. Johnson’s free will and induced him to tender an

involuntary confession. Because the confession is not

involuntary when reviewed on a de novo basis, it most

certainly is not involuntary when reviewed under the

deferential standard of AEDPA. Accordingly, we affirm

the decision of the district court.

Conclusion

For the foregoing reasons, the judgment of the

district court is affirmed.

AFFIRMED

3-24-09