Sweeney, Charles E. v. Carter, Steve

In the

United States Court of Appeals

For the Seventh Circuit

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No. 02-2165

CHARLES E. SWEENEY, JR.,

Petitioner-Appellant,

v.

STEVE CARTER, Attorney General of Indiana,

Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Indiana, New Albany Division.

No. 00-72-C-B/S—Sarah Evans Barker, Judge.

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ARGUED MAY 15, 2003—DECIDED MARCH 15, 2004

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Before BAUER, COFFEY, and DIANE P. WOOD, Circuit

Judges.

DIANE P. WOOD, Circuit Judge. Laypersons sometimes do

not realize that the federal government and the state

governments are separate sovereigns for purposes of crim-

inal prosecutions, and thus that prosecutors from both may

pursue charges for conduct covered by both laws. Lawyers

should know better. To his regret, Charles Sweeney made

this mistake after his lawyer concluded a plea agreement

with the U.S. Attorney’s Office in conjunction with certain

2 No. 02-2165

charges stemming from the murder of Daniel Guthrie. The

lawyer told Sweeney that this agreement, coupled with an

alleged oral promise from the state prosecutor’s office,

protected him from any use the state might have made of

these statements. The state of Indiana thought differently,

and based on the information Sweeney gave to the federal

authorities, it investigated, brought charges, and convicted

him for Guthrie’s murder. After exhausting his appeals at

the state level, Sweeney sought habeas corpus relief on the

ground that his attorneys’ mistaken advice about the

alleged use-immunity agreement amounted to constitution-

ally ineffective assistance under the Fifth Amendment to

the U.S. Constitution (not the Sixth). Because no such right

has been clearly established by the United States Supreme

Court, we affirm the district court’s dismissal of Sweeney’s

petition.

I

Guthrie never made it home from a fishing trip he took

with Sweeney on May 28, 1991. Authorities in Clark

County, Indiana, began an investigation, with Sweeney as

the prime suspect. But after more than a year, detectives

had failed to turn up any concrete leads—or even a body or

murder weapon. The investigation quickly revived, how-

ever, after Sweeney was arrested and indicted on federal

charges for placing a pipe bomb underneath the car of

the lead detective in the murder investigation. Sweeney’s

arrest for the pipe-bomb incident, combined with drug pos-

session charges, placed him in federal custody.

On June 26, 1992, Sweeney entered into a plea agreement

with the U.S. Attorney’s Office on the charges relating to

the pipe bomb. In return for a promised motion for a

downward departure under U.S.S.G. § 5K1.1 and the

dropping of several of the federal charges, Sweeney agreed

No. 02-2165 3

to plead guilty to planting the pipe bomb, to implicate the

others who were involved in the incident, and to disclose

both the whereabouts of Guthrie’s body and any informa-

tion relating to the cause of Guthrie’s death. Prior to con-

cluding this agreement, Sweeney’s attorneys telephoned the

Clark County prosecutor and asked if he would grant

Sweeney use immunity for any statements he made to the

federal authorities in connection with the plea agreement.

What happened next is the subject of dispute. Defense

counsel claims that the Clark County prosecutor orally

promised to grant full use immunity, or at least suggested

that he would file a murder charge only if the charge was

supported by “other evidence.” The prosecutor denies that

any offer of use immunity was made.

What is clear, at least for our purposes, is that after this

conversation, defense counsel advised Sweeney that a use-

immunity agreement was “carved in stone” and that

Sweeney should take the deal with federal prosecutors and

make as complete a statement as he could. Four days later,

during a June 30 meeting with federal prosecutors and

other authorities, Sweeney revealed the location of

Guthrie’s body and told his version of events, as follows. He

and Guthrie had indeed gone fishing on May 28. On the

way home from the fishing trip, the two men agreed to swap

some of Sweeney’s marijuana plants for a saddle owned by

Guthrie. Upon arriving at Sweeney’s home, Sweeney sent

Guthrie out into the woods with a shovel, two buckets, and

a 9mm handgun to obtain the plants. Meanwhile, Sweeney

headed into town to play bingo. When Guthrie’s wife

telephoned the next morning to inquire about the where-

abouts of her husband, Sweeney went into the woods to

search for Guthrie. He found Guthrie dead of a gunshot

wound to the head. Not wanting to risk discovery of his

marijuana operation, Sweeney buried Guthrie’s body and

disposed of his possessions.

4 No. 02-2165

With the benefit of this information, the police obtained

and executed a search warrant and soon located Guthrie’s

body near Sweeney’s property. Sweeney’s knowledge of the

location of the body was an important piece of evidence at

Sweeney’s subsequent trial for the murder of Guthrie.

Apparently not believing the bingo story, a jury convicted

Sweeney of murder. Sweeney was sentenced to 60 years’

imprisonment, to be served at the conclusion of his 210-

month federal sentence for the pipe bomb incident.

II

Our review of Sweeney’s habeas corpus petition is gov-

erned by the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA), 28 U.S.C. § 2254, which permits a federal

court to issue a writ of habeas corpus only if the state court

reached a decision on the merits of a claim, and that

decision was either “contrary to, or involved an unrea-

sonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1); see also Williams v. Taylor, 529 U.S.

362, 405-06 (2000); Brown v. Sternes, 304 F.3d 677, 690 (7th

Cir. 2002). Whether a state ruling runs afoul of § 2254(d)(1)

is a legal determination that we review de novo. Schaff v.

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

At the outset, we need to clarify exactly what Sweeney is

presenting on appeal. The district court considered and

rejected three arguments: (1) that the failure of the federal

authorities to give Sweeney Miranda warnings before he

made his June 30 proffer statement violated his Fifth

Amendment right against compulsory self-incrimination

with respect to the subsequent state murder charges (see

Miranda v. Arizona, 384 U.S. 436, 444 (1966)); (2) that the

statements he made to federal authorities in connection

with the plea agreement were not voluntary within the

meaning of the Due Process Clause because he was not ad-

No. 02-2165 5

equately forewarned, whether by federal agents or his own

defense counsel, that his statements could be used as evi-

dence against him by the state authorities; and (3) that his

defense attorneys’ mistaken advice concerning the alleged

use-immunity agreement rendered Sweeney’s counsel con-

stitutionally ineffective under the Fifth Amendment. In his

brief before this court, however, Sweeney presents only the

question “[w]hether Sweeney’s counsel provided ineffective

assistance when erroneously advising him that he had ‘use

immunity’ and that he should cooperate with the [federal]

government and give a complete statement regarding the

murder of Daniel Guthrie.” Although other parts of

Sweeney’s brief touch upon the Miranda and due process

claims, it is not clear whether he is trying to pursue those

theories independently, or if he instead is mentioning them

only in support of his ineffective assistance claim.

It would not help Sweeney even if we gave him the benefit

of the doubt and treated all three issues as if they were

before us, because we agree with the district court that

neither the Miranda nor the due process claim has any

merit. This is so notwithstanding several apparent missteps

on the part of the courts that have already reviewed this.

For instance, the Indiana Supreme Court and the district

court agreed that defense counsel’s advising of Sweeney of

his rights prior to his making the June 30 statement to

federal authorities—a fact established by substantial

testimony at trial—served as a “fully effective equivalent”

to the usual Miranda warnings. See Miranda, 384 U.S. at

476. No authority of which we are aware holds that a

suspect’s discussions with defense counsel can double for

the usual warnings given by law enforcement officers;

indeed, the contrary position—that whatever warnings are

otherwise required by Miranda must be administered by

the public authorities—is quite well-established. The

“effective equivalent” language in Miranda has been limited

6 No. 02-2165

to situations in which police officers have botched or

otherwise truncated the usual warnings. See, e.g.,

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

Duckworth, 834 F.2d 1366, 1370-71 (7th Cir. 1987).

The record here shows unequivocally that Sweeney

knowingly and voluntarily waived his Miranda rights.

We evaluate that question in light of the totality of the

circumstances. See United States v. Jackson, 300 F.3d 740,

748 (7th Cir. 2002); United States v. Smith, 218 F.3d 777,

780 (7th Cir. 2000). In addition,“[a] waiver need not be

express, but may be inferred from the defendant’s under-

standing of his rights coupled with a course of conduct re-

flecting his desire to give up his right to remain silent and

have the counsel of an attorney.” Jackson, 300 F.3d at 748

(internal quotation marks omitted). At least three facts

are relevant here: Sweeney was accompanied by defense

counsel at both the June 26 and June 30 meetings; he dis-

cussed the concept of use immunity with his lawyer prior to

those meetings; and he attended the June 30 meeting with

federal authorities pursuant to the plea agreement and for

the express purpose of making the statements he now seeks

to challenge. These facts are sufficient to infer a knowing

and voluntary waiver on Sweeney’s part.

As for the due process claim, Sweeney has not alleged,

much less proven, the coercive police activity or other gov-

ernmental misconduct that is “a necessary predicate to

the finding that a confession is not ‘voluntary’ within the

meaning of the Due Process Clause of the Fourteenth

Amendment.” Colorado v. Connelly, 479 U.S. 157, 167

(1986); see also United States v. Lawal, 231 F.3d 1045, 1048

(7th Cir. 2000); Watson v. DeTella, 122 F.3d 450, 453 (7th

Cir. 1997). The Indiana Supreme Court’s judgment was

entirely consistent with Supreme Court decisions on the

question and could in no way be characterized as “contrary

to” or an “unreasonable application” of that authority.

No. 02-2165 7

III

That leaves Sweeney’s ineffective assistance claim. The

State argues that Sweeney failed to exhaust and has oth-

erwise procedurally defaulted the claim. We can reach the

merits only by first satisfying ourselves that Sweeney gave

the Indiana courts a “meaningful opportunity to pass upon

the substance of the claims later presented in federal

court.” Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th

Cir. 2001); see also 28 U.S.C. § 2254(c); O’Sullivan

v. Boerckel, 526 U.S. 838, 844 (1999). The State rests its

default argument on the fact that Sweeney styled his in-

effective assistance claim in the Indiana Supreme Court as

a violation of the Sixth Amendment and then advanced the

same claim (based on the same facts) in his habeas corpus

petition under the banner of the Fifth Amendment. Of

course, this substitution was important as a matter of law,

since the Sixth Amendment right to counsel does not attach

until the initiation of adversary judicial proceedings. See

Fellers v. United States, 124 S.Ct. 1019, 1022 (2004); United

States v. Gouveia, 467 U.S. 180, 187-88 (1984). The State

argues that Sweeney’s last-minute substitution of one

amendment for the other in his habeas petition amounts to

procedural default.

We disagree. Fair presentment requires a petitioner to

put forward operative facts and controlling legal principles.

Whether she has done so depends on several factors,

including: “(1) whether the petitioner relied on federal cases

that engage in constitutional analysis; (2) whether the

petitioner relied on state cases which apply a constitutional

analysis to similar facts; (3) whether the petitioner framed

the claim in terms so particular as to call to mind a specific

constitutional right; and (4) whether the petitioner alleged

a pattern of facts that is well within the mainstream of

constitutional litigation.” Wilson v. Briley, 243 F.3d 325,

327 (7th Cir. 2001); see also Verdin v. O’Leary, 972 F.2d

1467, 1473-74 (7th Cir. 1992). The State avoids arguing the

8 No. 02-2165

finer points of any of these factors, but since no single point

is dispositive, we think greater care is necessary. It is plain

that Sweeney was attempting to raise a complaint about the

effectiveness of the counsel he received, given his reliance

on Strickland v. Washington, 466 U.S. 668 (1984),and his

explicit invocation of the Sixth Amendment before the

Indiana Supreme Court. In his references to the Strickland

line of cases, Sweeney explicitly relied on a range of federal

cases that engage in constitutional analysis of the right to

effective assistance of counsel.

We have had many occasions to consider the issue of

procedural default where a § 2254 petitioner presents new

factual allegations or casts her legal theories in a signifi-

cantly different light than that urged in state court. On the

one hand, we have found that the fact that two different

claims arise from a common set of facts is not enough to

avoid default. United States ex rel., Nance v. Fairman, 707

F.2d 936, 941 (7th Cir. 1983); Spurlark v. Wolff, 699 F.2d

354, 356 (7th Cir. 1983); Wilks v. Israel, 627 F.2d 32, 38

(7th Cir. 1980); Macon v. Lash, 458 F.2d 942, 948 (7th Cir.

1972). On the other hand, “a mere variation in legal theory”

does not automatically lead to a finding of failure to

exhaust. Fairman, 707 F.2d at 940; see also McCaughtry,

264 F.3d at 738 (citing Wilks, 627 F.2d at 38). Thus, a

petitioner may reformulate her claims so long as the

substance of the claim remains the same. McCaughtry, 264

F.3d at 738 (citing Picard v. Connor, 404 U.S. 270, 277-78

(1971)).

Consistent with these principles, it is important that the

various iterations of Sweeney’s ineffective assistance claim

focused throughout on defense counsel’s advice regard-

ing the alleged use-immunity agreement. As a result, this

case is different from Spreitzer v. Schomig, 219 F.3d 639,

645 (7th Cir. 2000) and Howard v. O’Sullivan, 185 F.3d 721,

725 (7th Cir. 1999), where we found that petitioners who

No. 02-2165 9

advanced ineffective assistance claims that focused alter-

nately on sentencing and post-conviction counsel at differ-

ent stages of review exhausted neither claim. This also

distinguishes Sweeney’s case from Everett v. Barnett, 162

F.3d 498, 502 (7th Cir. 1998), where we found procedural

default because petitioner’s ineffective assistance claim on

§ 2254 review centered on counsel’s failure to call a particu-

lar witness whose absence had not been criticized as an

instance of ineffective assistance before the state court.

Here, Sweeney’s underlying legal theory and the facts on

which it is based have remained the same throughout his

post-conviction odyssey. This fact serves to distinguish

Sweeney’s situation from cases involving more dramatic

shifts in the underlying legal theory. See, e.g., Kurzawa v.

Jordan, 146 F.3d 435, 443 (7th Cir. 1998) (finding failure to

exhaust where petitioner “raised two entirely new, separate

due process arguments on collateral appeal”); Fairman, 707

F.2d at 940-41 (finding default where petitioner brought

only state-law evidentiary claims in state court, and then

sought to bring constitutional claims stemming from the

same facts on habeas review).

The Indiana Supreme Court had squarely before it the

question whether the Strickland rule relating to ineffective

assistance of counsel should be extended to counsel’s role in

Sweeney’s initial set of encounters with the police and

prosecutors. This is enough to preclude a finding of pro-

cedural default. See Wilson, 243 F.3d at 327-28.

IV

At this point, however, Sweeney runs headlong into the

AEDPA standard of review. While he was fully entitled to

ask the Indiana Supreme Court to apply a Strickland-like

standard to his claim, that court was obliged to do so only

if existing U.S. Supreme Court precedent clearly estab-

lished such a rule. Here, it is clear that the Supreme Court

10 No. 02-2165

has not taken the step that Sweeney needs. Indeed, as far

as we can tell, the Supreme Court has not mentioned

effective assistance of counsel (in the Strickland sense) and

the Fifth Amendment in the same breath, let alone set forth

a clearly established right to that effect. To the contrary,

the Court has been at pains in the Sixth Amendment

context to note that the right to counsel attaches only at the

initiation of adversary criminal proceedings, and not before.

Gouveia, 467 U.S. at 188. From there, it is a short step to

the conclusion that the Indiana Supreme Court’s decision

cannot be called “contrary to” or “an unreasonable applica-

tion of” a decision of the United States Supreme Court. See

Young v. Walls, 311 F.3d 846, 849 (7th Cir. 2002). Thus,

Sweeney’s citation of Supreme Court authority that relies

on the Sixth Amendment, while enough to defeat the state’s

claim of procedural default, is not enough to prevail on the

merits under the restrictive AEDPA standard.

It might be possible to read the Supreme Court’s decision

in Hill v. Lockhart, 474 U.S. 52 (1985), as signaling the

Court’s willingness to extend Strickland to novel contexts.

(The state, much to its credit, considers this possibility

in its brief, though nowhere is the case mentioned by

Sweeney.) Lockhart applied the two-part Strickland

standard to the Court’s earlier holding in McMann v.

Richardson, 397 U.S. 759, 771 (1970), that the voluntari-

ness of a guilty plea depends on whether the advice was

within the range of competence demanded of attorneys in

criminal cases. Lockhart, 474 U.S. at 56-57. But even the

extension of the Strickland standard in Lockhart will not

carry the day for Sweeney. Extrapolation from Supreme

Court authority is not enough to overcome the deference to

state-court decision-making built into § 2254(d). Lockhart

or no, the operative question is whether the Supreme Court

itself has established the right in Sweeney’s particular

circumstances. It has not, and so we are left with the

inescapable conclusion that the lack of Supreme Court

authority sinks Sweeney’s claim.

No. 02-2165 11

None of this should be read to condone the wholly inade-

quate performance of defense counsel in this case. Viewing

the facts in nearly any light, that performance fell below an

objective standard of reasonableness under any account of

prevailing norms of professionalism and would easily meet

both parts of the Strickland standard (assuming of course

that it could be applied at this stage). Any lawyer worth her

salt should have known that an extrajudicial agreement

that has not received the imprimatur of the court is unen-

forceable under Indiana law, let alone “carved in stone.” See

Ind. Code § 35-37-3-3. One of Sweeney’s lawyers, Michael

McDaniel, actually testified at the § 2254 hearing that he

inferred that there was a use-immunity agreement from the

prosecutor’s use of “buzz words of use immunity,” but it is

plain that neither he nor Sweeney’s other lawyer, Edwin

Sedwick, ever bothered to obtain a confirmed copy of any

such agreement. Even accepting McDaniel’s account of the

exchange between the lawyers and Clark County prosecu-

tors, the “agreement” that was concluded was not a water-

tight grant of immunity, or even a use-immunity agreement

at all in any conventional sense. Use-immunity agreements

are not typically contingent on a lack of further develop-

ment of evidence in a case. Finally, we have no doubt that

Sweeney’s knowledge of the location of Guthrie’s body

loomed large in the minds of the jury, and so it seems clear

that Sweeney could, under a more forgiving standard than

AEDPA, establish prejudice.

V

We AFFIRM the judgment of the district court dismissing

Sweeney’s petition for a writ of habeas corpus.

12 No. 02-2165

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—3-15-04