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

No. 02-3379
JEREMY ARMSTRONG,
                                         Petitioner-Appellant,
                              v.

DANIEL BERTRAND, Warden,
                                         Respondent-Appellee.
                        ____________
          Appeal from the United States District Court
             for the Eastern District of Wisconsin.
           No. 01-C-744—Thomas J. Curran, Judge.
                        ____________
      ARGUED APRIL 3, 2003—DECIDED JULY 17, 2003
                     ____________


 Before CUDAHY, MANION and KANNE, Circuit Judges.
  CUDAHY, Circuit Judge. Six years ago, fifteen year-old
Jeremy Armstrong shot and killed Robert Drury, his
father’s roommate. A Wisconsin state jury found Armstrong
guilty of first-degree reckless homicide and he was sen-
tenced as an adult to a prison term not to exceed 20 years.
A Wisconsin Court of Appeals affirmed the conviction, and
Armstrong’s petition for review to the Wisconsin Su-
preme Court was denied. Armstrong appeals now from the
Eastern District of Wisconsin’s denial of habeas relief. We
affirm.
2                                                No. 02-3379

                              I.
  At age fifteen, Jeremy Armstrong was a high school
student with more than his share of challenges. His time
was divided between his separated parents—his mother
Cheryl, who was mentally ill, and his father Robert, who
was a crack addict. His father’s roommate, Robert Drury,
was also a crack addict and repeatedly threatened Arm-
strong with both physical and sexual violence. Weapons
were stashed all around his father’s house, and the elec-
tricity was sometimes cut off because of unpaid bills.
Despite all of these negative influences, Armstrong was
an honor student with a perfect attendance record.
  On June 19, 1997, Armstrong heard that Drury had
come into some money, money that Armstrong felt should
be given to his father for repayment of a debt. Armstrong
went to his father’s house, confronted Drury and de-
manded the cash, eventually grabbing a gun and pointing
it at Drury. Drury refused to hand over the money. Ac-
cording to witness Christopher Torres, Drury threatened
to kill Armstrong and lunged for the gun. Armstrong shot
Drury dead.
  Armstrong was arrested and charged with first-degree
intentional homicide. Following Wis. Stat. § 938.183(2),
under which adult criminal courts have exclusive juris-
diction over juveniles age fifteen or older charged with first-
degree intentional homicide, the state tried Armstrong
as an adult. Three Wisconsin state trial court decisions
are at issue here. First, Armstrong moved to suppress
inculpatory statements made while in police custody.
Armstrong claimed that the interrogation session that
eventually resulted in his confession involved a detective’s
putting his hands around Armstrong’s throat, knocking
Armstrong’s head against a wall and telling Armstrong
that he would be brutally and repeatedly raped in pris-
on. To substantiate these claims of police misconduct, Arm-
No. 02-3379                                               3

strong took and passed a polygraph test and moved to
admit the results in support of his suppression motion.
Both that evidentiary motion and the underlying sup-
pression motion were denied by the state court.
  Second, Armstrong requested jury instructions on per-
fect and imperfect self-defense. The court, after an in-
struction conference, refused to give the self-defense
instructions, finding that there was insufficient evidence
to support either theory of self-defense. Oddly enough, on
the second day of jury deliberations, the jury sent two
questions to the trial judge: “What [does] the privilege of
self-defense mean[ ]? Is [Armstrong] allowed the privilege
of self-defense in the act of committing a crime?” The court
then discovered that the instructions sent into the jury
room had accidentally included self-defense language: “If
the defendant was acting reasonably in the exercise of the
privilege of self defense, his conduct did not create an
unreasonable risk to another.” The defense moved for a
mistrial and, in the alternative, for the belated issuance
of an authorized self-defense instruction. Both motions
were denied. Instead, the judge ordered the jury to disre-
gard the mistakenly included self-defense language.
  Third, Armstrong brought a motion to dismiss, arguing
that the state statutes that guided the determination
of whether Armstrong would be sentenced as a juvenile
or an adult were unconstitutional as applied to Armstrong.
The trial court denied that motion as well.
  Although he had been charged with first-degree inten-
tional homicide, Wis. Stat. § 940.01, the jury convicted
Armstrong on the lesser offense of first-degree reckless
homicide, Wis. Stat. § 940.02. Armstrong argued prior to
sentencing that he should be given a juvenile disposition
under Wis. Stat. § 938.183(2)(a)(2), which permitted adult
criminal courts trying a juvenile to hand over the juvenile
to the juvenile justice system as long as the juvenile
4                                               No. 02-3379

was not convicted of first-degree intentional homicide
and met certain other criteria. The court considered the
factors for determining the appropriateness of waiver
of eligibility for an adult sentence, Wis. Stat. § 938.18(5),
but found that Armstrong did not qualify for the waiver.
Armstrong was sentenced as an adult to a prison term not
to exceed twenty years. His conviction was subsequently
affirmed by the Wisconsin Court of Appeals. State v.
Armstrong, No. 98-1768-CR, 2000 Wisc. App. LEXIS 184
(Wis. Ct. App. Mar. 7, 2000).
  Armstrong’s § 2254 petition in the district court chal-
lenged the above three trial court decisions. First, he
argued that the Wisconsin Court of Appeals decision
affirming the trial court’s exclusion of polygraph evidence
was contrary to United States v. Scheffer, 523 U.S. 303
(1998). Second, he argued that the decision affirming the
trial court’s refusal to instruct the jury on self-defense
was contrary to or involved an unreasonable application
of Keeble v. United States, 412 U.S. 205 (1973), and
Mathews v. United States, 485 U.S. 58 (1988). Third, he
challenged the decision affirming the constitutionality
of the statutes governing whether Armstrong would be
sentenced as a juvenile or as an adult. Armstrong argued
that these statutes, as applied to him, were contrary to
or involved an unreasonable application of controlling
Supreme Court due process law. The district court re-
jected all three arguments and denied Armstrong’s petition.


                             II.
  The Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254, provides our standard of
review of state court proceedings in petitions for habeas
relief. The AEDPA states, in pertinent part, that habeas
relief may be granted if the state court’s holding “resulted
in a decision that was contrary to, or involved an unrea-
No. 02-3379                                               5

sonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
  A state court decision is “contrary to” a Supreme Court
precedent “if the state court arrives at a conclusion oppo-
site to that reached by [the Supreme Court] on a question
of law” or “if the state court confronts facts that are ma-
terially indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to [that prece-
dent].” Williams v. Taylor, 529 U.S. 362, 405 (2000). Under
§ 2254(d)(1)’s “contrary to” clause, we review the state
court decision de novo to determine, as a question of law,
what is clearly established law as determined by the
Supreme Court and whether the state court decision is
contrary to Supreme Court law. See Schaff v. Snyder, 190
F.3d 513, 522 (7th Cir. 1999).
  An application of Supreme Court precedent is unrea-
sonable “if the state court identifies the correct gov-
erning legal rule from [the Supreme Court] cases but
unreasonably applies it to the facts of the particular state
prisoner’s case” or “if the state court either unreasonably
extends a legal principle from [Supreme Court] precedent
to a new context where it should not apply or unreason-
ably refuses to extend that principle to a new context
where it should apply.” Williams, 529 U.S. at 407. Under
the “unreasonable application of” clause of § 2254(d)(1),
we defer to a reasonable state court decision. Anderson
v. Cowan, 227 F.3d 893, 896-97 (7th Cir. 2000).
  We review de novo the district court’s decision on
Armstrong’s petition. 28 U.S.C. § 2254(d)(1); Washington
v. Smith, 219 F.3d 620, 627 (7th Cir. 2000).


                            A.
 Armstrong’s first claim is that the Wisconsin Court of
Appeals’ affirmance of the trial court’s exclusion of poly-
6                                                     No. 02-3379

graph evidence was contrary to United States v. Scheffer,
523 U.S. 303 (1998). In Scheffer, the Supreme Court, while
ruling that even a per se ban on polygraph evidence
was constitutionally permissible, stated that “[i]ndividual
jurisdictions . . . may reasonably reach differing conclu-
sions as to whether polygraph evidence should be admit-
ted.” Id. at 312. The use of polygraph evidence in Wiscon-
sin is controlled by State v. Dean, 307 N.W.2d 628 (Wis.
1981), in which the Wisconsin Supreme Court established
a per se ban on polygraph evidence in criminal cases, and
by Wis. Stat. § 301.132,1 which arguably overruled Dean
in part by specifically authorizing the use of polygraph
tests of convicted sex offenders by the state department
of corrections.
  Armstrong argues that Scheffer’s declaration that each
state has the authority to determine the use of polygraph
tests within the state, combined with Wisconsin’s argu-
able partial statutory overruling of Dean, somehow re-
quired the trial court here to accept Armstrong’s polygraph
evidence on the alleged abusive police interrogation inci-
dents. Scheffer provides little support for Armstrong’s
argument. As the district court wrote: “Even if Section
301.132 can be termed an exception to Wisconsin’s per se
rule, [Armstrong] has failed to establish that the United
States Supreme Court has held that, once any exception
is made in a state’s statutory scheme, polygraph evidence
must be admissible in a suppression hearing.” District Ct.
Order at 9 (emphasis added). In other words, Armstrong
cannot explain why, even if we read Wis. Stat. § 301.132


1
  Wis. Stat. § 301.132, as in place at the time of Armstrong’s trial,
read in relevant part:
    (2) The department [of corrections] may require, as a condi-
    tion of probation or parole, that a probationer or parolee who
    is a sex offender submit to a lie detector test when directed to
    do so by the department.
No. 02-3379                                                7

very broadly to suggest that Wisconsin courts should
reconsider the Dean exclusion of polygraph evidence in
contexts other than those expressly covered by the stat-
ute, the trial court should have admitted Armstrong’s
polygraph evidence pursuant to a Supreme Court com-
mand. The state courts’ exclusion of the polygraph evi-
dence was not contrary to Scheffer.


                             B.
   Armstrong next claims that the trial court erred by not
giving the requested self-defense instructions. Armstrong
asserts that the failure to give a perfect self-defense
instruction violated Mathews v. United States, 485 U.S. 58,
63 (1988) (“As a general proposition a defendant is entitled
to an instruction as to any recognized defense for which
there exists evidence sufficient for a reasonable jury to
find in his favor.”). Further, Armstrong argues that the
failure to give an imperfect self-defense instruction vio-
lated Keeble v. United States, 412 U.S. 205, 208 (1973)
(“[T]he defendant is entitled to an instruction on a lesser
included offense if the evidence would permit a jury ratio-
nally to find him guilty of the lesser offense and acquit him
of the greater.”). According to Armstrong, self-defense
was relevant here because he only fired when Drury
jumped toward Armstrong and, threatening to kill him,
tried to grab his gun.
  The trial court refused to give these instructions be-
cause it found that there was insufficient evidence to
support either defense. As a matter of Wisconsin law, since
Armstrong was the initial aggressor, he had no right of self-
defense. See Wis. Stat. § 939.48(2)(a); Armstrong, 2000
Wisc. App. LEXIS 184, at *13 (“Like the armed gunman in
Ruff, Armstrong confronted his intended robbery victim
with a gun and announced that he wanted the victim’s
money. At that point, the right of self-defense was not
8                                              No. 02-3379

available to Armstrong as an excuse or justification for
killing the victim.” (citing Ruff v. State, 223 N.W.2d 446
(Wis. 1974))); see also 40 Am. Jur. 2d Homicide § 148 (2002)
(“The general rule is that one who slays another, to be
justified or excused on the ground of self-defense, must be
without fault in provoking the difficulty.”). Although the
law does permit initial aggressors to regain their right
of self-defense by withdrawing from the conflict and
communicating the cessation of aggression, Wis. Stat.
§ 939.48(2)(b); 40 Am. Jur. 2d Homicide § 152, an armed
gunman does not regain the right of self-defense simply
because his target attempts to defend himself. See Ruff, 223
N.W.2d at 451-53. Because the evidence simply did not
support a defense of self-defense, such a jury instruction
would have been inappropriate. The state courts’ rejection
of the jury instructions was neither contrary to, nor did
it involve an unreasonable application of, clearly estab-
lished federal law.
  Armstrong also argues that the trial court’s refusal to
give a self-defense instruction after the jury asked for
clarification (of the inadvertently included self-defense
language) merits habeas relief. That is, Armstrong’s ar-
gument goes, when the jury asked about the inadver-
tently included self-defense jury instruction language, the
court should have identified self-defense as a proper
defense, rather than telling the jury to disregard the self-
defense language. We see no reason, however, why the
analysis after the jury’s inadvertent exposure to the self-
defense language should be any different from the anal-
ysis of the court’s initial refusal to give the self-defense
instructions. Given the mix-up in the jury instructions,
the trial court did its best to minimize confusion by tell-
ing the jury to disregard the language it should not
have received in the first place. While this mix-up may
have served as a plausible ground for a mistrial—a mo-
tion for mistrial was denied—it certainly did not require
No. 02-3379                                                          9

the trial court to give jury instructions for which there
was no factual basis.


                                 C.
  Armstrong’s last claim is that the state courts should
have found Wis. Stat. §§ 938.183(2) 2 and 938.18(5)(b)3 to be


2
  Wis. Stat. § 938.183(2), of Wisconsin’s Juvenile Justice Code,
as in place at the time of Armstrong’s trial, read in relevant part:
    (a) . . . [A] juvenile who is alleged to have attempted or
    committed a violation of s. 940.01 [first-degree intentional
    homicide] or to have committed a violation of s. 940.02 [first-
    degree reckless homicide] or 940.05 [second-degree inten-
    tional homicide] on or after the juvenile’s 15th birthday . . . is
    subject to the procedures specified in chs. 967 to 979 [adult
    criminal procedure statutes] and the criminal penalties
    provided for the crime that the juvenile is alleged to have
    committed, except that the court of criminal jurisdiction
    shall impose a disposition specified in s. 938.34 [juvenile
    dispositions] if any of the following conditions applies:
         ...
        2. The court of criminal jurisdiction convicts the juvenile
        of . . . a violation of s. 940.02 or 940.05 . . . and the court
        of criminal jurisdiction, after considering the criteria
        specified in s. 938.18(5), determines by clear and con-
        vincing evidence that it would be in the best interests
        of the juvenile and of the public to impose a disposition
        specified in s. 938.34.
3
  Wis. Stat. § 938.18(5) establishes the circumstances in
which juvenile courts should waive jurisdiction in favor of adult
criminal courts and, by reference from § 938.183(2), the cir-
cumstances in which adult criminal courts should waive adult
criminal sentences for juvenile dispositions:
    If prosecutive merit is found, the court shall base its deci-
    sion whether to waive jurisdiction on the following criteria:
                                                      (continued...)
10                                                   No. 02-3379

unconstitutional as applied to Armstrong. Section
938.183(2), which references the criteria listed in
§ 938.18(5), instructs criminal courts when a juvenile in
adult criminal proceedings should be given, in place of
an adult criminal sentence, a juvenile disposition. While
not crystal clear, Armstrong’s argument appears to have
two elements: (1) the statutes create an impermissible
irrebuttable presumption of an adult sentence for ju-


(...continued)
        (a) The personality and prior record of the juvenile,
        including whether the juvenile is mentally ill or develop-
        mentally disabled, whether the court has previously
        waived its jurisdiction over the juvenile, whether the
        juvenile has been previously convicted following a waiver
        of the court’s jurisdiction or has been previously found
        delinquent, whether such conviction or delinquency
        involved the infliction of serious bodily injury, the juve-
        nile’s motives and attitudes, the juvenile’s physical
        and mental maturity, the juvenile’s pattern of living,
        prior offenses, prior treatment history and apparent
        potential for responding to future treatment.
        (b) The type and seriousness of the offense, including
        whether it was against persons or property, the extent
        to which it was committed in a violent, aggressive,
        premeditated or willful manner, and its prosecutive
        merit.
        (c) The adequacy and suitability of facilities, services and
        procedures available for treatment of the juvenile and
        protection of the public within the juvenile justice
        system, and, where applicable, the mental health system
        and the suitability of the juvenile for placement in the
        serious juvenile offender program under s. 938.538 or
        the adult intensive sanctions program under s. 301.048.
        (d) The desirability of trial and disposition of the entire
        offense in one court if the juvenile was allegedly associ-
        ated in the offense with persons who will be charged
        with a crime in the court of criminal jurisdiction.
No. 02-3379                                                  11

venile defendants charged with intentional homicide, and
(2) the statutes are void for vagueness.4
  According to Armstrong, the statutes at issue demand
that all juveniles initially charged with first-degree in-
tentional homicide but convicted of a lesser offense be
sentenced as adults. This is because any such juvenile
would clearly fall on the wrong side of the criteria set out
in § 938.18(5)(b), i.e., whether the offense was violent,
aggressive, premeditated and willful. The operation of
these criteria, according to Armstrong, creates an imper-
missible irrebuttable presumption and makes any ac-
companying procedure pointless for the juvenile.
  We agree with the state that the statute does not
create such an irrebuttable presumption. Indeed, while
the burden may seem impossibly high, some juveniles
could hypothetically receive a juvenile disposition based
on § 938.18(5)(a), (c) and (d). For example, subsection (a)
takes into account, among other factors, the personality,
mental health, previous record and pattern of living of
the juvenile. Had the trial judge made findings on these
criteria more favorable to Armstrong, it is possible that they
would have outweighed the seriousness of Armstrong’s
offense. The language of the statute, at least, does not
forbid such a hypothetical balancing. Further, even if the
application of the § 938.18(5) criteria always resulted in an
adult disposition for juveniles charged with intentional
homicide, it is not at all clear that the statutes would be
unconstitutional. For one, Armstrong provides us with no
case law suggesting that the state does not have authority
to impose adult sentences on all juveniles charged with



4
   The vagueness discussion in Armstrong’s appellate brief is
patchy to the point that we might fairly consider him to have
waived the argument. Nonetheless, we (briefly) consider its mer-
its.
12                                             No. 02-3379

intentional homicide without a hearing to determine
whether the juvenile should instead be given a juvenile
disposition. Although we agree that the procedure laid
out in § 938.183(2) might, in most cases, have a foreor-
dained outcome for juveniles charged with intentional
homicide, it is certainly preferable to have such a process
to allow for the rare exception than to have no process at
all. At least, Armstrong had an opportunity to present
his case for a juvenile disposition and to appeal the unfa-
vorable decision through the state courts.
  Armstrong’s second argument charges that the statutes
are void for vagueness. At the outset we note that it is
unclear to us how statutes that Armstrong argues create
an irrebuttable presumption are at the same time vague.
Armstrong’s argument appears to be that, in part be-
cause the statutes create an irrebuttable presumption,
the statutes “do not provide notice as to what the defen-
dant is required to prove and how to prove it.” Armstrong
Br. at 24. Armstrong, citing Rogers v. Tennessee, 532 U.S.
451 (2001), Marks v. United States, 430 U.S. 188 (1977),
and Eastman v. City of Madison, 342 N.W.2d 764, 769 (Wis.
Ct. App. 1984), argues that defendants in his position lack
adequate notice as to what charges they face, what they
stand to lose, what evidence they can bring to the hear-
ing and what standards will be applied in judging them.
  We disagree that the statutes are so vague as to be
unconstitutional. Rogers and Marks are simply too far
removed from the facts and law of this case to be ap-
plicable here. While they affirm general constitutional
principles of notice, especially in interpreting the Ex Post
Facto Clause, they are simply not on point. Eastman, a
state appellate decision, actually undermines Armstrong’s
argument. The Eastman court found a disputed city or-
dinance not unconstitutionally vague in part because a
mayoral memorandum in support of the ordinance “set
forth ten specific criteria for determining” the reach of
No. 02-3379                                             13

the ordinance. Eastman, 342 N.W.2d at 769. Section
938.18(5) delineates clear criteria within the text of the
statute. Armstrong cites no other cases to bolster his
argument that the statutes are so vague as to be uncon-
stitutional, nor does our own review suggest any persua-
sive argument in his favor.
  Moreover, Armstrong does not cite any cases in his
appellate brief to refute the analysis of the lower courts:
the Wisconsin Court of Appeals and the district court
both held that vagueness challenges can only be made
against substantive statutes prohibiting specific conduct
and not against procedural statutes. See District Ct. Order
at 15 (citing Giaccio v. Pennsylvania, 382 U.S. 399, 402-03
(1966), to support the proposition that vagueness chal-
lenges cannot be made to procedural statutes); State v.
Dums, 440 N.W.2d 814, 817 (Wis. Ct. App. 1989). We are
wary of attempting to draw such a bright line between
substance and procedure and do not rely on such a distinc-
tion. Nonetheless, Armstrong must cite authority that
shows that the state courts’ decision was contrary to or
involved an unreasonable application of federal law, and
he has cited no such United States Supreme Court author-
ity to that end.


                           III.
  For the foregoing reasons, the judgment of the dis-
trict court is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit

                  USCA-02-C-0072—7-17-03
