                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-2165
CHARLES E. SWEENEY, JR.,
                                            Petitioner-Appellant,
                                v.

STEVE CARTER, Attorney General of Indiana,
                                           Respondent-Appellee.

                          ____________
            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.
                          ____________
     ARGUED MAY 15, 2003—DECIDED MARCH 15, 2004
                     ____________



 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
