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

No. 04-1614
IKE EASLEY, JR.,
                                             Petitioner-Appellant,
                                 v.

SHELDON FREY,
                                             Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 01 C 7117—Robert W. Gettleman, Judge.
                          ____________
  ARGUED NOVEMBER 1, 2005—DECIDED JANUARY 11, 2006
                   ____________


  Before BAUER, EVANS, and WILLIAMS, Circuit Judges.
  EVANS, Circuit Judge. Robert Taylor, the superintendent
at Illinois’ Pontiac Correctional Center, was stabbed to
death in his office on the morning of September 3, 1987.
The murder weapon was a homemade knife—in prison
parlance, a “shank.” Ike Easley, an inmate at Pontiac, was
tried and convicted of first degree murder and sentenced to
death in connection with the crime. Later, his sentence was
commuted to life in prison. He is here today appealing the
denial of his petition for habeas corpus, see Easley v.
Hinsley, 305 F. Supp. 2d 867 (N.D. Ill. 2004), filed pursuant
to 28 U.S.C. § 2254.
 We start with a brief recounting of the facts as deter-
mined by the Illinois Supreme Court when it resolved
2                                                No. 04-1614

Easley’s direct appeal. See People v. Easley, 592 N.E.2d
1036 (Ill. 1992), cert. denied, 506 U.S. 1082 (1993); see also
Ward v. Hinsley, 377 F.3d 719, 721 (7th Cir.), cert. denied,
125 S. Ct. 632 (2004) (state court’s unrebutted factual
determinations presumed correct).
  At Easley’s trial, inmate Lawrence Spillar testified that
while he was visiting Superintendent Taylor, Easley “ran
into the office, jumped on Taylor’s desk and struck him in
the face.” Easley then “pulled a knife from his belt and
appeared to stab Taylor.” According to Spillar, a second
inmate, Roosevelt Lucas, entered the office and struck
Taylor with a pipe. Another witness, inmate Demetre
Brown, saw Easley stab Taylor and also testified to seeing
Easley and Lucas prepare for the murder by donning gloves
and caps.
   In addition to the inmate testimony, the Supreme Court
recited other evidence of Easley’s guilt. Correctional Officer
Robert Baremore testified that he locked the inmates on
“gallery five” in their cells immediately after the at-
tack—Taylor’s office was a converted inmate cell located on
gallery five. Four other prison officials testified to seeing
Easley near Taylor’s office before the murder or locked in a
gallery five cell after the murder, even though his assigned
cell was in a different gallery. (One official did testify that
“it was not unusual for inmates from other galleries to be
near Taylor’s office.”) Technicians also recovered a bloody
footprint from the scene matching Easley’s shoe. Easley’s
fingerprint was found on the shank used to kill Taylor.
Blood found on Easley’s shoe and a pair of gloves removed
from his cell, though, did not match Taylor’s blood.
  After the murder, corrections officers isolated and
questioned approximately 30 inmates. The first round of
No. 04-1614                                                     3

questioning lasted about 10 minutes per inmate.1 A second
round of questioning focused on fewer than the original 30
inmates, including Easley. Investigators Doug Read and
David Brubaker advised Easley of his rights under Miranda
v. Arizona, 384 U.S. 436 (1966), and he invoked his right to
remain silent. After he refused to answer questions,
investigator Gerald Long joined Read and Brubaker. Long,
who acknowledged that Read and Brubaker told him that
Easley had refused to answer questions, testified he said
the following to Easley:
    ’I understand you have been given your rights and you
    don’t wish to say anything, and I do not wish to ask you
    any questions at this time, but I want to advise you
    what lies ahead.’ At that point in time, I advised him
    that we had inmate testimony that indicates that he
    and another individual were the hitters or perpetrators
    of the murder of Superintendent Taylor and that even
    though he was currently institutionalized on a serious
    matter this was more serious in the fact that it was a
    capital crime and if convicted, could be subject to the
    death penalty.
Easley responded, “all you honkey motherfuckers want is a
nigger donkey to pin this case on, and I am your donkey, I
am your killer.”
  Easley moved to suppress his response to Long. According
to Easley, Long’s statement was the equivalent of interroga-
tion, which was constitutionally impermissible after he
invoked his right to remain silent. The trial court, though,


1
  During the first round of questioning, Easley made statements
to investigators that are not reported by the Illinois Supreme
Court. He moved to suppress those statements because investiga-
tors did not advise him of his rights, and the trial court agreed.
See Easley, 592 N.E.2d at 1043. Their suppression is not an issue
in this appeal.
4                                               No. 04-1614

found that Easley’s response was not “coerced” or the result
of a “calculated strategem [sic].” Thus, the court reasoned,
Easley’s right to remain silent under Miranda was not
violated, and the statement was received in evidence.
   The Illinois Supreme Court, reviewing the denial of the
suppression motion on direct appeal, analyzed whether
Michigan v. Mosely, 423 U.S. 96 (1975), required suppres-
sion of Easley’s response because investigators did not
“scrupulously honor” his “right to cut off questioning.”
Mosley, 423 U.S. at 103 (quoting Miranda, 384 U.S. at 479,
474). The Supreme Court differed with the trial court,
finding that Long’s exhortation (after Read and Brubaker
initially discontinued questioning) was an “ ‘obvious effort
to persuade [the defendant] to make a statement.’ ” Easley,
592 N.E.2d at 1046 (quoting People v. R.C., 483 N.E.2d
1241, 1244 (Ill. 1985)). But, the court continued, Long’s
statement did not itself “rise to the level of being the
‘functional equivalent’ of interrogation.” Easley, 592 N.E.2d
at 1047 (quoting Rhode Island v. Innis, 446 U.S. 291, 301
(1980)). The court observed that Long did not initially
administer the Miranda warning, there was some separa-
tion in time between the initial warning and the time Long
made his statement (though the court could not determine
the lapse of time), and Long never asked Easley a question
but only made a statement. Consequently, the Supreme
Court affirmed the trial court’s ruling admitting the
response. Easley did not raise the issue again on
postconviction review. See People v. Easley, 736 N.E.2d 975
(Ill. 2000).
  The district court, reviewing Easley’s Mosely claim, held
that the Illinois Supreme Court did not unreasonable apply
clearly established United States Supreme Court precedent.
See 28 U.S.C. § 2254(d)(1). Relying on the standard articu-
lated in Lockyer v. Andrade, 538 U.S. 63, 75 (2003), and
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), the
district court found that “although the Illinois Supreme
No. 04-1614                                                  5

Court’s decision on this issue may have been incorrect, it
was not objectively unreasonable.” Finally, the district court
found in the alternative, under Brecht v. Abrahamson, 507
U.S. 619, 638 (1993), that the admission of Easley’s re-
sponse was harmless because it was not obviously
inculpatory and there was overwhelming evidence of his
guilt.
  In this court Easley argues both that the Illinois Supreme
Court erred when it determined that Long’s statement was
not a form of interrogation and that the district court
wrongly determined that, even if a Miranda viola-
tion occurred, the admission of his response was harmless.
We review the district court’s decision to deny relief
de novo. See Walker v. Litscher, 421 F.3d 549, 554 (2005).
  Easley faces a difficult standard of review. Under the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we cannot grant relief unless the state court’s
adjudication of Easley’s constitutional claim “resulted in
a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law . . . .” See 28
U.S.C. § 2254(d)(1). “Even if the state court erroneously
applied federal law, we may only grant the writ if the
decision was objectively unreasonable.” See Walker, 421
F.3d at 554.
  We begin by reviewing the Supreme Court’s precedent
regarding a suspect’s invocation of his right to remain
silent, which investigators must “scrupulously honor.”
Miranda, 384 U.S. at 479; see also Mosely, 423 U.S. at 104.
In Mosely, the Court allowed police to initiate questioning
regarding a murder after Mosely invoked his right to
remain silent during an earlier interrogation focused on two
robberies. See Mosely 423 U.S. at 105-06, see also United
States v. Schwensow, 151 F.3d 650, 658-59 (7th Cir. 1998)
(summarizing the Court’s holding in Mosely). Officers first
advised Mosely of his Miranda rights and questioned him
6                                               No. 04-1614

about two robberies but stopped after he invoked his right
to remain silent. Later, a different police officer at a
different location again advised him of his Miranda rights
and questioned him about an unrelated murder. Mosely,
without invoking his right to remain silent, implicated
himself in the homicide and the Court upheld the introduc-
tion of his statement.
  Mosely established a totality of the circumstances test for
determining whether police have breached their duty to
honor a suspect’s right to remain silent. See Schwensow,
151 F.3d at 658. In Schwensow, we observed that the
Court’s analysis in Mosely included a consideration of “the
amount of time that lapsed between interrogations; the
scope of the second interrogation; whether new Miranda
warnings were given; and the degree to which police officers
pursued further interrogation once the suspect had invoked
his right to silence.” Id. at 658. But, Mosely “neither
elevates any one factor as predominant or dispositive nor
suggests that the enumerated factors are exhaustive, but
instead directs courts to focus on whether the confession
was obtained in a manner compatible with the require-
ments of the Constitution.” Id. at 659 (internal quotation
marks and citation omitted).
  Following Miranda and Mosely, the Court addressed
when a police officer’s statement to a suspect, although not
a question, is the “functional equivalent” of interrogation.
See Innis, 446 U.S. at 301. Innis was suspected of robbing
a taxi driver with a sawed-off shotgun but had no gun when
he was arrested. After police officers took him into custody
and notified him of his right under Miranda, he asked to
see an attorney. Then, in Innis’s presence, one officer
remarked to another, “there’s a lot of handicapped children
running around in this area, and God forbid one of them
might find a weapon with shells and they might hurt
themselves.” Innis incriminated himself by revealing the
location of the gun.
No. 04-1614                                                 7

  The Court defined the “functional equivalent” of interro-
gation as “any words or actions on the part of the police
(other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Id. at 301. The
Court, explaining the nature of the inquiry, assigned
significance to the intent of the police to elicit an incrimi-
nating statement:
    [The intent of the police] may well have a bearing on
    whether the police should have known that their words
    or actions were reasonably likely to evoke an incrimi-
    nating response. In particular, where a police practice
    is designed to elicit an incriminating response from the
    accused, it is unlikely that the practice will not also be
    one which the police should have known was reasonably
    likely to have that effect.
Innis, 446 U.S. at 302 n.7. But, the Court “primarily”
focused its analysis on the suspect’s perception, see also
Whitehead v. Cowan, 263 F.3d 708, 718 (7th Cir. 2001), and
determined that the officer’s statement in Innis’s presence
did not amount to interrogation.
  The Court again addressed the role of a police officer’s
intent in Arizona v. Mauro, 481 U.S. 520 (1987). Confronted
with a state supreme court determination that two officers
who placed a husband and wife in an interrogation room
with a tape recorder “both knew that . . . incriminating
statements were likely to be made,” the Court nevertheless
determined that police did not violate the suspect’s
Miranda rights. The Court concluded that an interrogation
did not occur simply because the police knew their actions
were likely to result in a suspect volunteering incriminating
statements.
   We now turn to Easley’s principal argument, that the
Illinois Supreme Court erred by determining that Long’s
statement did not “rise to the level of being the ‘functional
8                                               No. 04-1614

equivalent’ of interrogation.” According to Easley, the
court’s initial finding that Long’s statement was made in an
“obvious effort to persuade [the defendant] to make a
statement” should have been dispositive under Innis,
regardless of the other circumstances of the case.
  Easley’s argument is not persuasive. Long’s intent to
elicit a response from Easley may suggest that the state-
ment could be a form of interrogation, but his intent is not
dispositive, see Mauro, 481 U.S. at 529 n.6. Long’s state-
ment must also have been “reasonably likely to elicit an
incriminating response.” Innis, 446 U.S. at 301. Easley
draws our attention to Long’s mention of the death penalty
but does not explain how this makes a Miranda violation
more likely than not. Ultimately Easley can only prevail if
he was subjected to “compelling influences, psychological
ploys, or direct questioning.” Mauro, 481 U.S. at 529.
   In this case, we do not believe that Long’s statement
regarding the evidence and the possible consequences of the
charges Easley faced rose to the level of interrogation under
existing United States Supreme Court precedent. As the
Fourth Circuit observed in United States v. Payne, “infor-
mation about the evidence against a suspect may also
contribute to the intelligent exercise of his judgment
regarding what course of conduct to follow.” 954 F.2d 199,
202 (4th Cir. 1992) (citation omitted); accord United States
v. Moreno-Flores, 33 F.3d 1164, 1169-70 (9th Cir. 1994) (fact
that police statements to suspect “may have struck
a responsive chord” insufficient to find them functional
equivalent of interrogation). The defendant in Payne
invoked his right to counsel. Later, officers notified him of
the charges he faced. The Fourth Circuit determined that
“statements by law enforcement officials to a suspect
regarding the nature of the evidence against the suspect [do
not] constitute interrogation as a matter of law.” The court
declined to reverse the trial court’s admission of the defen-
dant’s statement because it could not “conclude that Agent
No. 04-1614                                                 9

Martin ‘should have known’ that her statement, which was
the only discussion of the charges or evidence against
appellant, was ‘reasonably likely to elicit an incriminating
response.’ ” Like the Fourth Circuit, we do not believe that
the provision of information, even if its weight might move
a suspect to speak, amounts to an impermissible “psycho-
logical ploy.” We have cited Payne’s reasoning approvingly,
see United States v. Jackson, 189 F.3d 502, 510 (7th Cir.
1999), and United States v. Cooper, 19 F.3d 1154, 1163 (7th
Cir. 1994), and do so again today.
   Easley has not suggested that Long’s statement was
anything more than a matter-of-fact communication of the
evidence against him and the potential punishment he
faced. Accordingly, we are not persuaded to hold that the
Illinois Supreme Court misapplied or acted contrary to
United States Supreme Court precedent when it determined
that Long’s statement was not the equivalent of interroga-
tion. See Jackson v. Frank, 348 F.3d 658, 665 (7th Cir.
2003) (determination by sister circuit consistent with state
court determination “makes it more difficult to conclude”
state court “unreasonably applied Supreme Court author-
ity”). And, because it was not a form of interrogation, the
statement did not transgress the investigators’ duty to
honor Easley’s invocation of his right to remain silent.
  Moreover, even if Easley could convince us that Long’s
statement violated his rights under Miranda, we would not
grant him relief because the introduction of his response
could only be described as harmless error. Under Brecht, a
habeas corpus petitioner must show that a Miranda
violation had a “substantial and injurious effect or influence
in determining the jury’s verdict” in order to succeed on
collateral review. Brecht, 507 U.S. at 623; see also Hinton v.
Uchtman, 395 F.3d 810, 819-20 (7th Cir. 2005).
  Easley argues that his response to Long was damaging
because it was the only statement attributed to him that
10                                               No. 04-1614

the jury heard at trial. Because he exercised his right not to
testify, the jury was, he suggests, particularly influenced by
the “racially charged” statement which it viewed as an
admission of guilt. We don’t believe, however, that the
response he uttered to Long can be so easily categorized.
Recall, again, the statement: “All you honkey motherfuckers
want is a nigger donkey to pin this case on, and I am your
donkey. I am your killer.” While one way of looking at this
response is that it is an admission of guilt, another, and we
think a more plausible interpretation, is that Easley was
accusing the investigators of participating in a racist plot to
frame him. It was a response born of frustration.
  But even if the jury viewed the response as Easley posits,
he is not entitled to relief as the evidence against him was
powerful. Two eyewitnesses testified to seeing Easley stab
Superintendent Taylor. Though Easley faults them for
being members of a rival gang and thus incredible, the jury
obviously accepted their testimony after cross-examination,
and we will not disturb that assessment. See Bieghler v.
McBride, 389 F.3d 701, 707 (7th Cir. 2004). The fingerprint
and footprint evidence also linked Easley to the murder.
Finally, five correctional officers placed Easley near Taylor’s
office before and after the murder. Faced with this evidence,
under Brecht, the admission of his response to Long can
only, at best, be harmless error.
                                                   AFFIRMED.
No. 04-1614                                         11

A true Copy:
      Teste:

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




               USCA-02-C-0072—1-11-06
