Petition for Writ of Certiorari — Zohn Wang Kub Yang, Petitioner v. Dan Cromwell, Warden

9 9CASE NO.

79

Qhiginai

Supreme Court, U.S.

FILED

MAY 2 6 2023

IN THE SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

'ZOHN WANG KUB ‘ YANG

Petitioner,

v.

DAN CROMWELL,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI AND REQUIRED SHORT APPENDIX FOR

PETITIONER

ZOHN WANG KUB YANGRedgranite Correctional Center

1006 County Road EE

P.O. Box 0925

Redgranite, Wisconsin 54970-0925

(920) 566-2600

Petitioner, Pro se

QUESTION PRESENTED

In Miranda v. Arizona, 384 U.S. 436 (1966), this Court announced a prophylactic rule

protecting the Fifth Amendment right against self-incrimination. That rule generally prohibits

prosecutors and criminal trial courts from admitting into evidence against a criminal defendant any

self-incriminating statement made by that defendant while he was in custody, unless the defendant

first received certain warnings spelled out in Miranda. The question before this Court is:

Whether the totality of the law enforcement officers' words or actions made during the

questioning of Petitioner in this case when they told Petitioner he could not leave the hospital

amounted to custodial interrogation control over the Petitioner for Miranda purposes?

DISCLOSURE STATEMENT

The undersigned counsel for Petitioner furnishes the following list in compliance with S.

Ct. Rules 14 and 33.1:

1. The full name of every party that attorney represents in this case:

Zohn Wang Kub Yang

2. The names of all law firms whose partners or associates have appeared for the party in the

case or are expected to appear for the party in this court:

None at this time

3. Any parent corporation and any publicly held company that own 10% or more of stocks of

shares.

By: s/Zohn Wang Kub Yang_____

1006 County Road EE

P.O. Box 0925

Redgranite, Wisconsin 54970-0925

(920) 566-2600

Petitioner, Pro se

ii

TABLE OF CONTENTS

QUESTION PRESENTED.............................................................................

DISCLOSURE STATEMENT........................................................................

TABLE OF CONTENTS.................................................................................

TABLE OF AUTHORITIES.................................................................. .........

JURISDICTIONAL STATEMENT.................................................................

OPINIONS BELOW........................................................................................

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.......

INTRODUCTION............................................................................................

STATEMENT OF THE CASE........................................................................

a. The Domestic Assault and Yang's Confession....................

b. Yang's Federal Habeas Corpus Action Under Section 2254

c. The Seventh Circuit's Decision......................... ...............

SUMMARY OF LEGAL ARGUMENT..................... ...................................

ARGUMENT...................................................................................................

YANG'S CLAIMS AGAINST STATE FOR TAKING UNSWORN

I.

STATEMENT.................................................................... ..............

A. Miranda Establishes An Evidentiary Rule That Applies To

Criminal Trials..............................................................................

B. A Violation Of Miranda Does Equate To A Violation Of the

Fifth Amendment ........................................................................

i

ii

CONCLUSION

14

m

m

1

1

1

1

3

3

5

5

6

8

8

8

11

TABLE OF AUTHORITIES

Cases

Brecht v. Ahrahamson,

507 U.S. 619 (1993)

11

Chaves v. Martinez,

ssmw

535

iii

Dickerson v. United States,

530 U.S. 428 (2000)

2,6,9

Howes v. Fields,

565 U.S. 499 (2012)

11

J.D.B. v. North Carolina,

564 U.S. 261 (2011)

11

Maryland v. Shatzer,

££tU.S. 98 (aoio)

11

Miranda v. Arizona,

384 U.S. 436 (1966)

passim

Michigan v. Harvey,

494 U.S. 344 (1990)

11

Michigan v. Mosley,

423 U.S. 96 (1975)

12

Michigan v. Payne,

412 U.S. 47 (1973)

12

Michigan v. Tucker,

417 U.S. 433 (1974)

10

Montejo v. Louisiana,

556 U.S. 778 (2009)

11

New York v. Quarles,

467 U.S. 649 (1984)

10

Oregon v. Elstad,

470 U.S. 298 (1985)

11,12

Rhode Island v. Innis,

446 U.S. 291 (1980)

5

iv

United States v. Patane,

542 U.S. 630 (2004)

3,7,8,9,10,11,13

Statutes

1

18 U.S.C. § 3501(a)-(b)

28 U.S.C. § 1254(1)

1

28 U.S.C. § 2253(c)(2)

3

... 5,6,7,8,11

28 U.S.C. § 2254

i

1,6,11

42 U.S.C. § 1983

Other Authorities

Fifth Amendment

passim

F ourteenth Amendment

passim

v

OPINIONS BELOW

The Seventh Circuit's decision denying Petitioner's request for a certificate of appealability

(Pet. app. la) is not published. The district court's decision and order denying Petitioner's petition

for federal habeas corpus relief (Pet. app. 2a-8a), and confirming the judgment dismissing the case

(Pet. app. 9a) also is not published.

JURISDICTION

The Seventh Circuit entered judgment on February 28, 2023. Pet. app. la. This petition for

writ of certiorari is being timely filed on May 26, 2023. This Court has jurisdiction under 28

U.S.C. § 1254 (1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Relevant Constitutional and Statutory provisions are as follows: U.S. Const, amend. V; 18

U.S.C. § 3501(a)-(b); 28 U.S.C. § 1254(1); and 42 U.S.C. § 1983.

INTRODUCTION

The issue in this case is whether the definition of interrogation can extend to words or actions

by law enforcement officers that they should have known were reasonably likely to elicit an

incriminating response when questioning a criminal suspect without first providing warnings under

Miranda v. Arizona, 384 U.S. 436 (1966). The answer to that question is yes. Miranda does

establish a prophylactic rule of evidence designed to protect a criminal defendant's Fifth

Amendment right against compelled self-incrimination at trial. And because a Miranda violation

occurs when a prosecutor independently chooses to introduce the unwarned statement as part of

the state's trial evidence, the courts and prosecutors can be the proximate cause of that violation.

For both of these independent reasons, there is a violation of Petitioner Zohn Yang's rights in these

1

circumstances.

Here, the issue arises from the efforts of Daniel Running and his colleague Wang Lee, Neenah

Police Department investigators, to investigate a domestic assault against the immobilized wife of

Petitioner whom had been transported to a local hospital. Also, Petitioner was driven by his pastor

to the hospital where his wife had been taken. After the patient identified Petitioner Zohn Yang as

the alleged perpetrator, Running and Lee questioned Petitioner Zohn Yang at the hospital and

eventually received his signed confession to the assault. During Yang's state criminal proceedings,

the trial judge concluded that the confession was admissible at trial - even though Running and Lee

had not given Yang a Miranda warning - because Yang allegedly was not in custody when the

questioning occurred. Pet. App. 3a-4a. In this later-filed Section 2254 action, the district court also

found that Running and Lee did not use coercive techniques to extract an involuntary confession or

fabricate evidence, and the district court accordingly rejected Yang's claims under the Fifth and

Fourteenth Amendments. Pet. App. 6a-8a.,Further, the Seventh Circuit denied Yang's request for a

certificate of appealability, holding that the court found "no substantial showing of the denial of a

constitutional right." Pet. App. la.

The Seventh Circuit's decision was wrong, and this Court should overturn it for either of two

independent reasons.

First, Yang can establish the violation of a constitutional right. Here Yang alleges a deprivation

of his Fifth and Fourteenth Amendment rights against self-incrimination at trial. While establishing

a violation of Miranda may not per se establish a violation of the Fifth Amendment, but this Court

recognized in Dickerson v. United States, 530 U.S. 428 (2000), that the prophylactic Miranda rule

has constitutional underpinnings and cannot be overturned by statute. Thus, the Seventh Circuit's

2

contrary ruling was mistaken, as this Court from Dickerson pointed out.

Second, assuming that the introduction of Yang's un-Mirandized statement at the state criminal

trial violated his Fifth and Fourteenth Amendment rights, the state court and prosecutor were the

proximate cause of that violation. Miranda's exclusionary rule is a rule of evidence directed at

courts and prosecutors. United States v. Patane, 542 U.S. 630, 637 (2004) (plurality op.). A

Miranda violation can therefore occur at trial when an unwarned statement is introduced against

the defendant during the prosecution's case-in-chief.

In denying a certificate of appealability of action under 28 U.S.C. § 2253(c)(2), the Seventh

Circuit adopted a rule that threatens the basic structure of this Court's Miranda precedents. The

Court has consistently emphasized that the scope of the Miranda rule should be “close-fit” to its

prophylactic purpose, and has accordingly tailored that rule based on a balancing of different

interests. Id. at 639-40. The decision below cuts against that close tailoring by encouraging police

from receiving unwarned confessions even in circumstances where no such encouragement is

warranted. And it wrongly subjects criminal defendants to pervasive conviction risks in connection

with routine investigation.

The decision below should be reversed.

STATEMENT OF THE CASE

A. The Domestic Assault And Yang's Confession

On April 27, 2015, Investigator Running and his colleague Lee responded to a Theda Clark

Medical Center to investigate allegations that the hospital had initiated lockdown procedures when

Yang's wife made statements that Yang had intentionally struck her with the car and intended to

harm her, leaving her partially incapacitated. Pet. App. 3a. The law enforcement officers

3

immediately restricted Yang's movements in the hospital, after which he was transported to a small

hospital room by Running with the door closed. At that point, Sergeant Lee arrived on the scene,

entered the room, and started to question Yang about his wife's injuries. Pet. App. 4a. According to

the district court, Lee questioned Yang “in a conversational manner” and Yang then made an

incriminating statement without further prompting. Pet. App. 3a-4a. Running nor Lee gave Yang a

Miranda warning because Yang was not under arrest or in custody. Pet. App. 7a.

The Wisconsin Court of Appeals later described the actions by law enforcement as to Running

and Lee telling Yang "we can't let you go anywhere" and Yang must stay with the officers. See

State v. Yang, 2021 WI App 27,

5, 13-14, 397 Wis. 2d 241, 959 N.W. 2d 75 (WI Ct. App. Mar.

9, 202 l)(unpublished). Further, Yang was unable to speak with his relatives because - due to his

restraint- he was unable to go to the bathroom, where police officers were posted outside the door

of the bathroom and his hospital room at all times. And police officers discussed ways to subdue

Yang in the event he attempted to escape from the bathroom. Id.

Yang was arrested for attempted first-degree intentional homicide and endangering safety, and

charged in state court. Pet. App. 2a. After considering the circumstances under which Yang was

questioned, the state prosecutor concluded that Yang had neither been under arrest nor ‘in custody’

for purposes of Miranda, and thus that his confession was admissible at trial. Pet. App. 7a. The

state trial court agreed, rejecting Yang's effort to exclude the confession under Miranda. Id. After

hearing the victim's conflicting accounts, the jury returned a verdict of guilty on all charges and

Yang was sentenced to a total of 40 years. Pet. App. 2a.

4

B. Yang's Federal Habeas Corpus Action Under Section 2254

After his state direct appeal, Yang filed a federal habeas corpus action under 28 U.S.C. § 2254

alleging that the state violated his Fifth and Fourteenth Amendment rights against self­

incrimination, particularly that Running and Lee took a custodial, un-Mirandized statement that

was later used against Yang at his state criminal trial. See Pet. App. 6a-7a. The district court

declined to grant Yang's habeas petition. The district court determined the state court's decision was

not an unreasonable application of clearly established Supreme Court law and did not involve an

unreasonable determination of fact as to whether Lee had “improperly coerced or compelled”

Yang's statement under the Fifth Amendment by considering the totality of the circumstances

surrounding the questioning - including its location, length, and manner, as well as whether Lee

provided a Miranda warning. Id. at 7a-8a. Consequently, the district court rejected Yang's claim

that his incriminating statement was a continuation of his interrogation, and returned a verdict for

the state. Id. at 9a.

C. The Seventh Circuit's Decision

Yang appealed to the Seventh Circuit. He sought a certificate of appealability based on the

argument that the district court should have focused on this Court's decision in Rhode Island v.

Innis, 446 U.S. 291, 299 (1980) to find the totality of the words or actions on the part of law

enforcement officers that they should have known were reasonably likely to elicit the incriminating

statement introduced at Yang's criminal trial was taken in a custodial setting without Miranda

warnings - even absent any proof of coercion or fabrication of evidence.

The Seventh Circuit disagreed, holding that it found “no substantial showing of the denial of a

constitutional right" regarding the use of an un-Mirandized statement against a defendant in a

5

criminal proceeding does not violate the Fifth Amendment and may not support any rights

protected by the Constitution. Id. at la. The panel therefore denied Yang's request for a certificate

of appealability.

SUMMARY OF ARGUMENT

The Seventh Circuit erred in holding that Yang did not make a substantial showing of the

denial of a constitutional right based on a violation of Miranda's exclusionary rule. That decision

must be rejected as a matter of law, for at least two independent reasons.

First, a criminal defendant who establishes that an unwarned statement was introduced against

him at a criminal trial in violation of Miranda does thereby establish that he has been deprived of a

“right[], privilegef], or immunit[y] secured by the Constitution.” 42 U.S.C. § 1983. The Seventh

Circuit's decision mistakenly treated Yang's claim regarding an alleged violation of Miranda's

exclusionary rule as stating a claim for a violation of the Fifth Amendment right against self­

incrimination. But the two are not equivalent: This Court has consistently recognized that

Miranda's exclusionary rule is a prophylactic rule that sweeps more broadly than the Fifth

Amendment itself.

In Dickerson, this Court held that Miranda set out a constitutional rule that cannot be

overturned by Congress or a state legislature. 530 U.S. at 444. Thus, a criminal defendant who

asserts that law enforcement authorities elicited an unwarned statement when he was in custody at

a hospital that was introduced against him in violation of Miranda has a claim for relief under

Section 2254.

Allowing a cause of action under Section 2254 for alleged Miranda violations would not

upset the careful balance that this Court has struck when crafting the scope of the Miranda rule.

6

This Court has emphasized the need to maintain the “closest possible fit” between Miranda and

the Fifth Amendment privilege against self-incrimination. Patane, 542 U.S. at 643. Applying that

approach, the Court has held that Miranda bars the introduction of unwarned statements presented

in the prosecution's case-in-chief at a criminal trial.

Second, because Miranda creates a prophylactic evidentiary rule governing the admission of

an unwarned statement at trial, violations of Miranda are the result of a prosecutor and judges'

conduct. When an officer in the field takes a lawful, unwarned statement, he is entitled to presume

that prosecutors and judges will construe the law correctly in determining whether the statement is

admissible. Here, for example, the Wisconsin prosecutor responsible for Yang's case exercised her

own “independent prosecutorial judgment” when concluding that Yang's incriminating statement

was admissible under Miranda. And four different Wisconsin state judges agreed. Yang should not

be held responsible for those decisions.

The Seventh Circuit's causation holding - which allows an error of law committed by the

prosecutor and state courts to go unchecked - is wrong and provides an independent basis for

reversal.

The Seventh Circuit's approach - not holding state prosecutors and judges liable when they

affirmatively introduce the un-Mirandized statement - completely reverses the normal presumption

of regularity that is attributed to prosecutors' and judges' conduct. It also misunderstands the nature

and scope of Miranda, as Miranda does in fact forbid the subsequent admission of such unwarned

statements at trial. Yet under the Seventh Circuit's approach, virtually any unwarned statement with

regard to a criminal suspect in custody at a hospital might not give rise to a Miranda-based Section

2254 action for relief - even where the prosecutor and judge has acted entirely unlawful. The

7

Seventh Circuit's judgment should be reversed.

ARGUMENT

I. YANG'S CLAIMS AGAINST STATE FOR TAKING UNWARNED STATEMENT

Yang's claim against State officials under Miranda v. Arizona, 384 U.S. 436 (1966), does state

a cause of action under Section 2254 for two independent reasons. First, a violation of Miranda's

prophylactic evidentiary rule does equate to a violation of a defendant's Fifth Amendment rights,

when such an unwarned statement is introduced at his criminal trial. Second, if the Fifth

Amendment is violated in such circumstances, the State officer is the proximate cause of the

violation.

A. Miranda Establishes An Evidentiary Rule That Applies To Criminal Trials.

Miranda is most famous for the warnings that many Americans could recite based simply on

having watched a few police dramas on TV, at least as far as the “right to remain silent.” The

decision is rooted in the Self-Incrimination Clause of the Fifth Amendment, which is framed in

terms of a narrower right. It provides that “[n]o person ... shall be compelled in any criminal case

to be a witness against himself.” U.S. Const, amend. V.

The Self-Incrimination Clause thus establishes a “prohibition on compelling a criminal

defendant to testify against himself at trial.” United States v. Patane, 542 U.S. 630, 637 (2004)

(plurality op.) (citing Chavez v. Martinez, 538 U.S. 760, 764-68 (2003) (plurality op.)); see also

Chavez, 538 U.S. at 777-79 (Souter, J., concurring in the judgment). In that respect, the Clause

gives criminal defendants a “self-executing” right to the exclusion of evidence, such that “‘those

subjected to coercive police interrogations have an automatic protection from the use of their

involuntary statements (or evidence derived from their involuntary statements) in any subsequent

8

criminal trial.”’ Patane, 542 U.S. at 640 (quoting Chavez, 538 U.S. at 769).

In Miranda, this Court recognized the need to provide an extra layer of protection for

defendants' Fifth Amendment right against self-incrimination. The Court noted that when police

question criminal suspects held in government custody, those circumstances can create “inherendy

compelling pressures” making it hard to determine whether a suspect's statements are truly

voluntary. Miranda, 384 U.S. at 467. That potentially “jeopardize[s]” the defendant's “privilege

against self-incrimination” if the statements are subsequendy used against the defendant at trial. Id.

at 478; see also Dickerson v. United States, 530 U.S. 428, 435 (2000).

To guard against this danger, Miranda developed a “system for protecting the [Fifth

Amendment] privilege” in custodial interrogations. 384 U.S. at 471. Specifically, it created an

evidentiary rule generally excluding from a criminal trial any testimonial statements made by the

defendant while being interrogated in police custody, unless that defendant has been expressly

advised of certain rights. Under Miranda, police wishing to obtain testimonial evidence in those

circumstances must inform the suspect of the warning for which Miranda is now best known - that

“he has the right to remain silent, that anything he says can be used against him in a court of law,

that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will

be appointed for him prior to any questioning.” Id. at 479. Without such warnings, “no evidence

obtained as a result of interrogation can be used against him” as part of the prosecution's case-inchief at trial.” Id.

Additionally, the Court has repeatedly emphasized that “[t]he Miranda rule is not a code of

police conduct”; it does not “operateG as a direct constraint on police”; and “police do not violate

9

...the Miranda rule ... by mere failures to warn.” Patane, 542 U.S. at 637, 642 n.3. As Justice

Marshall noted, Miranda leaves law enforcement “free to interrogate suspects without advising

them of their constitutional rights.” New York v. Quarles, 467 U.S. 649, 686 (1984) (Marshall, J.,

dissenting). For that reason, the Court in Chavez rejected a Section 1983 claim based simply on an

officer's failure to read Miranda warnings before a custodial interrogation. See 538 U.S. at 772

(“Chavez's failure to read Miranda warnings to Martinez did not violate Martinez's constitutional

rights and cannot be grounds for a § 1983 action.”); id. at 789 (Kennedy, J., concurring in relevant

part and dissenting in part) (“[Fjailure to give a Miranda warning does not, without more, establish

a completed violation when the unwarned interrogation ensues.”).

Rather than imposing a direct constraint on officers, Miranda instead establishes an evidentiary

“exclusionary rule” prohibiting the use of most unwarned self-incriminatoiy testimonial statements

as part of the prosecutor's case-in-chief at a subsequent criminal trial. Chavez, 538 U.S. at 772; id.

at 790 (Kennedy, J., concurring in relevant part) (“Miranda mandates a rule of exclusion.”).

Miranda's “focus” on “the admissibility of statements [at trial],” Patane, 542 U.S. at 642 n.3,

reflects its goal of protecting the Fifth Amendment privilege against self-incrimination, which by its

terms protects a defendant only against being forced to serve as a “witness against himself” in “any

criminal case,” U.S. Const, amend. V (emphasis added); see Chavez, 538 U.S. at 766-67.

In this way, Miranda establishes “recommended ‘procedural safeguards”’ designed to “help

police officers conduct interrogations without facing a continued risk that valuable evidence would

be lost” at trial. Michigan v. Tucker, 417 U.S. 433, 443 (1974). But the mere failure to give a

Miranda warning does]

jnot itself violate “the Constitution (or even the Miranda rule, for that

matter).” Patane, 542 U.S. at 637.

10

For all these reasons, Yang can: "] argue that State officials consummated a constitutional

violation at the moment they improperly introduced the unwarned statement taken by police police

at the hospital without first providing him with Miranda warnings. Indeed, Yang's counsel

expressly claimed that argument in the trial court.

B.

A Violation Of Miranda Does Equate To A Violation Of The Fifth Amendment

To prevail on his Section 2254 theory, Yang must establish that when an officer fails to

provide a Miranda warning - and the criminal defendant's unwarned statement is then improperly

introduced at trial by the prosecutor - the defendant has necessarily been deprived of his Fifth

Amendment right against self-incrimination. That proposition is sound. This Court has consistently

described Miranda as establishing a “prophylactic” mle whose core purpose is to “safeguard the

[Fifth Amendment] constitutional guarantee against self-incrimination.” J.D.B. v. North Carolina,

564 U.S. 261, 269 (2011); see also, e.g., Howes v. Fields, 565 U.S. 499, 507 (2012) (noting that

Miranda adopted a “set of prophylactic measures”) (quoting Maryland v. Shatzer, 559 U.S. 98,

103 (2010)); Montejo v. Louisiana, 556 U.S. 778, 794 (2009) (describing “Miranda's prophylactic

protection”); Patane, 542 U.S. at 636 (“[T]he Miranda mle is a prophylactic ....”); Chavez, 538

U.S. at 772 (“[T]he Miranda exclusionary mle [is] a prophylactic measure ....”); id. at 780 (Scalia,

J., concurring in part in the judgment) (“Section 1983 does not provide remedies for violations of

judicially created prophylactic mles, such as the mle of Miranda ....”); Brecht v. Abrahamson, 507

U.S. 619, 629 (1993) ( “the Miranda prophylactic mle”); Michigan v. Harvey, 494 U.S. 344, 350

(1990) (“the prophylactic Miranda mles”); Oregon v. Elstad, 470 U.S. 298, 309 (1985)

(“prophylactic Miranda procedures”); Quarles, 467 U.S. at 657 (noting Miranda's “prophylactic

mle protecting the Fifth Amendment's privilege against self-incrimination”); Michigan v. Mosley,

11

423 U.S. 96, 112 (1975) (Brennan, J., dissenting) (noting that “a prophylactic rule was fashioned”

in Miranda); Michigan v. Payne, 412 U.S. 47, 53 (1973) (describing Miranda as a “prophylactic

constitutional rule[]”). The Court's repeated description of Miranda as a “prophylactic rule” squares

with Miranda itself, which described its holding as having delineated a “system for protecting” the

Fifth Amendment privilege against self-incrimination. Miranda, 384 U.S. at 471.

Miranda protects the Fifth Amendment privilege by excluding unwarned statements that

might have been the product of coercion, even if there was no actual coercion in real life. This

Court has explained that the “Fifth Amendment prohibits use ... only of compelled testimony.”

Elstad, 470 U.S. at 306-07. And Miranda “creates a presumption of compulsion” when police

receive a self-incriminating custodial statement that is not preceded by Miranda warnings. Id. at

307. In that sense, Miranda creates a presumption that admitting an unwarned statement would

violate the Fifth Amendment's prohibition on the introduction of compelled statements, and so

“unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment

must nevertheless be excluded from evidence under Miranda.” Id.

Here, Yang argues that his Fifth Amendment right against self-incrimination was violated

when the prosecutor used his custodial, unwarned statement against him in a criminal trial. And

the Fifth Amendment itself prohibits the trial use of statements that are actually “compelled.”

Elstad, 470 U.S. at 306-07; see also Chavez, 538 U.S. at 772-73; Quarles, 467 U.S. at 658 n.7

(“[A]bsent actual coercion by the officer, there is no constitutional imperative requiring the

exclusion of... evidence ....”).

Thus, for Yang to establish a violation of his Fifth Amendment rights at his criminal trial, he

must show that he was actually “compelled” to become a “witness against himself.” U.S. Const.

12

amend. V. Yang was given the chance to make that showing, and succeeded: The Wisconsin Court

of Appeals in his state direct appeal found that Sergeant Lee did actually compel Yang's selfincriminating statement. See State v. Yang, 2021 WI App 27, ffl| 5, 13-14. So as a matter of

adjudicated fact - unchallenged here - Yang's self-incriminating statement was compelled. And

“police [can] violate the [Self-Incrimination] Clause by taking unwarned though [in]voluntary

statements.” Patane, 542 U.S. at 632.

Yang's argument that his statement should have been excluded from his criminal trial under

Miranda because the judge at that trial failed to apply Miranda's presumption of coercion. The

Seventh Circuit itself failed to recognize this: As the court observed, the admission of an unwarned

statement may not violate Miranda where the police questioning at issue did not rise to the level of

a "substantial showing of the denial of a constitutional right" for inadmissibility than the Miranda

standard. Pet. App. la. So Yang's allegation that he was in custody for Miranda purposes when

Sergeant Lee questioned him does establish, on its own, that a coerced or compelled statement was

introduced against him at his criminal trial. And that supports Yang's Fifth Amendment claim, since

it is only the “admission into evidence ... of confessions obtained through coercive custodial

questioning” that violates “the right protected by the text of the Self-Incrimination Clause.”

Chavez, 538 U.S. at 772 (emphasis added).

The bottom line here is simple: criminal defendants should not be held responsible for legal

misjudgments by prosecutors and judges acting independently, without meaningful law

enforcement officer input or control, months or years after the fact. Criminal defendants should be

entitled to assume that those government actors will follow the law and faithfully apply Miranda.

This Court should reject the Seventh Circuit's decision to deny Yang's request for certificate of

13

appealability because the law enforcement officials in his case were responsible for violating that

rule. That result is not only proper under this Court's precedents, but also necessary to maintain the

integrity and coherence of this Court's Miranda jurisprudence. The Seventh Circuit's decision in

this case allows Yang's unsworn statements to be used at trial even though Yang was in custody at

the time he made his self-incriminating statement. As the state courts correcdy recognized, there

was a Miranda problem here, see State v. Yang, 2021 WI App 27, 1fl| 5, 13-14, and therefore a

need for exclusion of Yang's statement. By those lights, Yang had suffered a violation of the Fifth

Amendment, including the Miranda rule: Yang's statement was not voluntarily made, and it was

made in a custodial setting in a hospital that would have triggered the need for Miranda warnings.

This Court should reject the Seventh Circuit's rule and hold that law enforcement officers can be

held liable in these circumstances.

CONCLUSION

The Seventh Circuit's judgment should be reversed.

Dated and signed this 26th day of May, 2023.

Respectfully Submitted,

>hn W.

1006

s/ Kub^Yang

nty Road EE

P.0. Box 0925

Redgranite, WI 54970

Tel. 920-566-2600

Petitioner, Pro-Se

14