                           In the

United States Court of Appeals
                For the Seventh Circuit
                        ____________

No. 07-2901

E RIC SMILEY,
                                            Petitioner-Appellee,

                               v.

M ICHAEL T HURMER, Warden,
                                         Respondent-Appellant.
                        ____________
         A ppeal from the U nited States District Court
             for the Eastern District of W isconsin.
            N o. 03 C 656— Lynn Adelm an, Judge.
                        ____________

     A RGUED A PRIL 17, 2008—D ECIDED S EPTEMBER 5, 2008
                        ____________



  Before R IPPLE, M ANION and T INDER, Circuit Judges.
   R IPPLE, Circuit Judge. Eric Smiley was convicted of
first degree intentional homicide, in violation of Wiscon-
sin Statutes §§ 940.01(1), 939.63(1)(A) (1997). The Court
of Appeals of Wisconsin affirmed his conviction and
sentence on direct review, and Mr. Smiley exhausted his
state habeas remedies. Mr. Smiley then filed in the dis-
trict court a petition under 28 U.S.C. § 2254 for a writ of
2                                              No. 07-2901

habeas corpus. The district court granted the writ. The
State of Wisconsin (the “State”), through Warden
Michael Thurmer, timely filed a notice of appeal.
  For the reasons set forth in this opinion, we affirm
the judgment of the district court.


                             I
                    BACKGROUND
A. Facts
  Mr. Smiley lived with his grandmother, his sister, Monica
Walters, and Walters’ boyfriend, Christopher Garrett. On
the morning of June 6, 1997, Walters discovered the dead
body of Garrett blocking the front door. She called the
police, who initially believed that Garrett had been the
victim of a burglary homicide; they surmised that Garrett
had been shot five times and that the shooting had oc-
curred around midnight. After the police spoke with
Walters and with her grandmother, they expressed an
interest in speaking with Mr. Smiley. The police claim
that they were interested in speaking with Mr. Smiley
because he lived in the home with Garrett, not because
he was a suspect.
  Upon discovering that they wanted to speak with him,
Mr. Smiley telephoned the police. The police told him to
remain at his location, and they immediately dispatched
three squad cars to pick him up. According to Mr. Smiley,
the police arrived within five minutes of his phone call.
The police discovered that Mr. Smiley had an outstanding
No. 07-2901                                               3

municipal court warrant, and they formally arrested him
based on that outstanding warrant. Mr. Smiley explains,
however, that they did not inform him of the reason for
his arrest.


1. The First Statement
  After arresting Mr. Smiley, the police locked him in a
holding cell in the police station. At about 5:00 p.m., the
detectives investigating the Garrett shooting escorted
Mr. Smiley from the holding cell to an interview room.
The detectives told him that, although he was not a
suspect, they wanted to question him about Garrett’s
shooting. It is undisputed that the detectives did not give
Mr. Smiley a Miranda 1 warning at this time.
  The detectives had noticed that Mr. Smiley had a
“significant” and “very noticeable” limp, R.15, Ex. W at 70,
and they asked him about it; Mr. Smiley stated that he had
tripped the previous day and injured his knee. The detec-
tives also noticed an abrasion on his forehead and another
on his left hand. When asked about these injuries, Mr.
Smiley said that he did not know how he had acquired
them.
  The police questioned Mr. Smiley about Garrett’s shoot-
ing. Mr. Smiley denied any knowledge of the shooting,
but he related that burglars had broken into his grand-
mother’s home on several occasions. Mr. Smiley further
said that Garrett had not mentioned having problems


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
4                                               No. 07-2901

with anyone. Mr. Smiley also told the officers that he
did not know of anyone who would want to harm
Garrett. Mr. Smiley claimed that he had spent the night at
a friend’s house. He explained that he had last spoken to
Garrett the previous afternoon and that he did not
learn about the shooting until sometime after 1:00 p.m. the
next day, June 6. He denied owning a handgun, and he
stated that he had not handled a gun since his arrest on
a weapons charge in Chicago six years earlier.
  On several occasions, Mr. Smiley attempted to rise
from his chair; each time the detectives ordered him to
sit down. After about seventy-five minutes of questioning,
the detectives left the interview room for a few minutes.
Upon returning, they noticed that Mr. Smiley had what
appeared to be blood on his jacket and boots. The detec-
tives asked Mr. Smiley about it, and he explained that his
girlfriend had given him the jacket and that, if there was
blood on it or on his boots, he had no idea how it had
gotten there. The detectives asked Mr. Smiley to remove
the articles so that they could test them for blood. At some
point, the detectives also had Mr. Smiley remove his
clothes and gave him a white coverall to wear. At this
point, the detectives observed a bite mark on his back;
Mr. Smiley denied knowing how it had happened.
   The detectives exited the room with his jacket and boots.
Upon returning, they told Mr. Smiley that they had found
blood on the articles, and they demanded to know where
it had come from. Again, Mr. Smiley said that he did not
know how the blood had gotten there. The detectives
told Mr. Smiley that they knew that he was lying because
No. 07-2901                                              5

the blood was Garrett’s and that they therefore knew that
he had killed Garrett. Mr. Smiley nevertheless continued
to deny any involvement in Garrett’s death, but he
began to cry. At approximately 8:00 p.m., the detectives
told Mr. Smiley that he was under arrest for the Garrett
homicide; they left him alone in the interview room for
the next four to five hours (except for the taking of addi-
tional photographs). The detectives still did not give
Mr. Smiley a Miranda warning.


2. The Second Statement
  At 12:45 a.m., the detectives returned to the interview
room and, for the first time, informed Mr. Smiley of his
Miranda rights. Soon thereafter, Mr. Smiley confessed to
having killed Garrett in self-defense.
  In his confession, Mr. Smiley told the detectives that he
had not socialized with Garrett and, although he did not
know very much about Garrett, he thought that Garrett
had treated his sister well. Several months ago, Mr. Smiley
explained, some items had gone missing in the house,
including jewelry, money and a .22 caliber handgun that
Mr. Smiley owned. Mr. Smiley subsequently purchased
another gun, a .38 caliber, to replace the missing one. Mr.
Smiley suspected that Garrett might have stolen these
items, although he had never confronted Garrett or voiced
his concerns to his sister.
  Mr. Smiley stated that, on June 5, he went into the
bedroom that Walters shared with Garrett and saw the
stolen gun, fully loaded. He took the gun, went into the
6                                               No. 07-2901

living room and laid it on an end table. Mr. Smiley told
Garrett, “I found my gun, now where is my diamond ring,”
referring to a ring that he suspected that Garrett had
stolen. R.15, Ex. W at 44. Mr. Smiley recounted that Garrett
then told him, “I don’t know nothing about your ring.” Id.
At this point, Mr. Smiley and Garrett both became angry;
Garrett pushed Mr. Smiley, and Mr. Smiley hit Garrett
back. A struggle ensued, and, according to Mr. Smiley, the
260-pound Garrett managed to get him in a bear hug
around the top part of Mr. Smiley’s back that bent Mr.
Smiley over in a forward position. Garrett swung Mr.
Smiley around, a maneuver that resulted in Mr. Smiley’s
injured knee. Garrett also bit Mr. Smiley in the back. Mr.
Smiley explained to the detectives that he could not
breathe and began to fear that he would pass out. Mr.
Smiley reached for a .38 caliber handgun tucked into
his waistband and fired it into Garrett’s left leg. Garrett
released Mr. Smiley and stumbled backward.
  After taking a few steps backward, however, Garrett
lunged for the .38 caliber gun that Mr. Smiley was holding.
Mr. Smiley fired two additional shots at Garrett, who
again fell backward. Mr. Smiley then saw Garrett
attempt to reach the .22 caliber handgun that was still
on the end table. Mr. Smiley claimed that, when he
saw Garrett working the slide action of the handgun to
chamber a round, he believed that Garrett was going to
kill him. As Garrett turned toward him, Mr. Smiley fired
two final shots at Garrett. Mr. Smiley claimed that, when
he realized that Garrett was dead, he panicked. He moved
some items in the residence to create the appearance of
a burglary gone bad, grabbed both weapons and left.
No. 07-2901                                                  7

  At approximately 4:00 a.m., after Mr. Smiley had
finished telling the detectives what had happened, he
led them to the weapons, which he had hidden in a
friend’s basement.


B. Prior Proceedings
   The State charged Mr. Smiley with first-degree inten-
tional homicide while armed, in violation of Wisconsin
Statutes §§ 940.01(1), 939.63(1)(A) (1997). Prior to trial,
Mr. Smiley moved to suppress his first statement. In
ruling on the motion, the trial court determined that Mr.
Smiley had not been given a Miranda warning preceding
the interrogation leading up to the first statement; the
court further determined that Mr. Smiley was in custody
when he had made that statement. The court neverthe-
less denied Mr. Smiley’s motion because it determined
that he had been questioned as a witness, not as a suspect.
Accordingly, the trial court allowed the State to admit in
its case-in-chief all of the statements made by Mr. Smiley
during both interrogations.
  Mr. Smiley’s defense at trial was that he had shot Garrett
in self-defense. Although Mr. Smiley did not testify at
trial, he based his defense on his second statement to the
detectives in which he had described the struggle be-
tween himself and Garrett.2 Throughout the trial, how-



2
  Both of Mr. Smiley’s statements were admitted as a result of
the State’s proffer in the State’s case-in-chief. Neither the
                                                 (continued...)
8                                                   No. 07-2901

ever, the prosecutor relied heavily on Mr. Smiley’s first
statement to depict Mr. Smiley as a liar and to argue
that Mr. Smiley’s story about acting in self-defense
could not be believed.
  After the close of evidence, the trial court instructed
the jury on first-degree intentional murder and, over
Mr. Smiley’s objection, on the lesser included offense of
second-degree intentional homicide—imperfect self-
defense.3 During deliberations, the jury asked the trial
court to explain the difference between first and second-
degree intentional homicide. The jury convicted Mr.
Smiley of the former. The trial court sentenced Mr. Smiley
to life in prison with eligibility for parole after forty years.



2
  (...continued)
State nor the state appellate court has suggested, at any point in
the proceedings, that Mr. Smiley’s reliance on the second
statement to raise the defense of self-defense affords, under
the circumstances here, an independent basis for the ad-
mission of the first statement for purposes of impeachment. The
position of the State authorities in this respect seems to rest
on a solid ground. The Supreme Court has limited the im-
peachment exception to Miranda, first articulated in Harris v.
New York, 401 U.S. 222 (1971), to situations in which the defen-
dant elects to testify at trial. See Oregon v. Hass, 420 U.S. 714,
716, 720-24 (1975); United States v. Havens, 446 U.S. 620, 626-27
(1980); see also James v. Illinois, 493 U.S. 305 (1990).
3
  Wis. Stat. § 940.01(2)(b) (“Death was caused because the actor
believed he or she or another was in imminent danger of death
or great bodily harm and that the force used was necessary to
defend the endangered person, if either belief was unreason-
able.”).
No. 07-2901                                                9

   The Court of Appeals of Wisconsin affirmed Mr. Smiley’s
conviction on direct review, and the trial court and court
of appeals denied his petitions for state habeas review.
The Supreme Court of Wisconsin denied Mr. Smiley’s
petitions on direct and collateral review. In all pro-
ceedings, Mr. Smiley challenged, inter alia, the trial
court’s denial of his pre-trial motion to suppress his
first statement to the police.
  While his state habeas proceedings were pending,
Mr. Smiley filed in the district court a petition under
28 U.S.C. § 2254 seeking a writ of habeas corpus. The
district court stayed the proceedings until Mr. Smiley
had exhausted his state remedies. After he had done so,
Mr. Smiley returned to the district court and moved for
leave to amend his previously filed petition. The district
court permitted the amendment, and, in his amended
petition, Mr. Smiley claimed that the Court of Appeals of
Wisconsin had erred by (1) refusing to suppress a state-
ment allegedly obtained by the police in violation of
Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny;
(2) rejecting his claim that the jury instruction con-
cerning mitigation of the first-degree intentional
homicide based on the use of unnecessary force violated
his right to due process; and (3) dismissing his ineffec-
tive assistance of trial counsel claim.
  The district court granted Mr. Smiley’s petition. It held
that the state court had been confronted with a set of facts
materially indistinguishable from those in Miranda, 384
U.S. 436, and Mathis v. United States, 391 U.S. 1 (1968), but
nevertheless arrived at a contrary result. The district court
10                                               No. 07-2901

further determined that this error was not harmless
because Mr. Smiley’s credibility was a critical issue in
the case and because the prosecutor repeatedly had used
Mr. Smiley’s first statement to depict Mr. Smiley as a liar.
  The State timely appealed the judgment of the district
court.


                              II
                       DISCUSSION
A. Standards of Review
  We review de novo a district court’s grant of a petition
for a writ of habeas corpus. Ben-Yisrayl v. Davis, 431 F.3d
1043, 1047 (7th Cir. 2005). Under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) of 1996, Pub. L.
No. 104-132, 110 Stat. 1214 (1996), federal courts may grant
a state prisoner habeas relief only if the state court’s
adjudication of the claim
     (1) resulted in a decision that was contrary to, or
     involved an unreasonable application of, clearly
     established Federal law, as determined by the Supreme
     Court of the United States; or
     (2) resulted in a decision that was based on an unrea-
     sonable determination of the facts in light of the
     evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The relevant state court decision is that
of the last state court to address the habeas petitioner’s
arguments on the merits, Garth v. Davis, 470 F.3d 702, 710
(7th Cir. 2006), which in this case is the decision of the
Court of Appeals of Wisconsin.
No. 07-2901                                                11

   A state court’s decision is “contrary to” clearly estab-
lished federal law “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a
question of law or if the state court decided a case dif-
ferently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Terry Williams v. Taylor,
529 U.S. 362, 413 (2000). A state court’s decision is an
“unreasonable application” of clearly established federal
law “if the state court identifies the correct governing legal
principle from [the Supreme] Court’s decisions but unrea-
sonably applies that principle to the facts of the prisoner’s
case.” Id. A decision also may fall within the “unreasonable
application” clause if it “either unreasonably extends a
legal principle” from existing 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.” Id. at 407. The Supreme Court
has cautioned, however, that habeas relief may not
issue unless the state court decision was incorrect and
unreasonable. Terry Williams, 529 U.S. at 411; Horton v.
Litscher, 427 F.3d 498, 504 (7th Cir. 2005).
  The state court’s factual findings are presumed correct;
this presumption can be rebutted by clear and con-
vincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 348 (2003); Barrow v. Uchtman, 398
F.3d 597, 603 (7th Cir. 2005). With these principles in
mind, we turn to the decision of the Court of Appeals of
Wisconsin and the State’s arguments.
12                                               No. 07-2901

B. The Detectives’ Failure to Give Mr. Smiley a Miranda
   Warning
  The detectives gave Mr. Smiley a Miranda warning
prior to his second statement, in which he confessed to
having killed Garrett in self-defense. Therefore, we
confine our review to Mr. Smiley’s first statement in
which he denied repeatedly any involvement in the crime.4
  In affirming the trial court’s denial of Mr. Smiley’s
motion to suppress his first statement, the state court of
appeals relied on State v. Armstrong, 588 N.W.2d 606 (Wis.
1999), a decision of the Supreme Court of Wisconsin.
Armstrong, in turn, relied upon the Supreme Court’s
decision in Rhode Island v. Innis, 446 U.S. 291 (1980). Under
Armstrong, the court of appeals explained, “questioning
without Miranda warnings is lawful when police have
‘no reason to know that their questions would likely
elicit an incriminating response.’ ” R.8, Ex. E at 4 (quoting
Armstrong, 588 N.W.2d at 617). The detectives’ questioning
of Mr. Smiley between 5:00 p.m. and 8:00 p.m., the time
during which he gave his first statement, “was not an
interrogation,” according to the state court of appeals, “but
simply an interview of a potential witness who police
believed may have had pertinent background informa-



4
  Exculpatory statements fall within Miranda’s ambit. Miranda,
384 U.S. at 444 (holding that “the prosecution may not use
statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant” unless the
defendant is given warnings designed to safeguard his Fifth
Amendment rights against self-incrimination).
No. 07-2901                                               13

tion to the investigation because he was a tenant in the
home where the homicide occurred.” Id. at 4-5. It was not
until 12:45 a.m., after the police had noticed the blood on
his boots and jacket and took his clothing for laboratory
analysis, that Mr. Smiley became a suspect in Garrett’s
murder. At that point, the detectives ceased the interview,
placed him under arrest for the Garrett murder and
administered a Miranda warning.
  The State submits that the court of appeals’ decision was
proper under the Supreme Court’s decision in Innis. It
reads Innis as limiting Miranda to situations in which
the officers conducting a custodial interrogation might
reasonably expect the person under interrogation to
make an incriminating statement. Therefore, according
to the State: “It is simply not an unreasonable application
of Innis to find that because the police had no reason to
know that their interview would elicit an incriminating
response, Smiley’s first statement was admissible.” Appel-
lant’s Br. at 24.
  We respectfully believe that the State’s submission, as
well as the decision of the Court of Appeals of Wisconsin,
is predicated on an erroneous reading of Innis. In Innis,
the police arrested Thomas Innis for the murder of a
Rhode Island taxicab driver. Upon arresting Innis, an
officer issued a Miranda warning; Innis stated that he
understood his rights and that he wanted to speak with a
lawyer. While en route to the police station, one of the
officers told the other officer that he hoped that one of the
handicapped children from a nearby school did not find
the shotgun used in the murder. The other officer re-
14                                                  No. 07-2901

sponded that it would be sad if a girl found the gun
and perhaps killed herself. Innis interrupted the con-
versation, and he told the officers that he would lead
them to the murder weapon.
  The Supreme Court refused to “construe the Miranda
opinion so narrowly” as applying “only to those police
interrogation practices that involve express questioning
of a defendant while in custody.” Innis, 446 U.S. at 298-99.
It reiterated that the “concern of the Court in Miranda
was that the interrogation environment created by the
interplay of interrogation and custody would subjugate
the individual to the will of his examiner and thereby
undermine the privilege against compulsory self-incrimi-
nation.” Id. at 299 (internal quotation marks and citation
omitted). The Court further explained that the “police
practices that evoked this concern [in Miranda] included
several that did not involve express questioning.” Id.
Accordingly, the Supreme Court held:
        We conclude that the Miranda safeguards come
     into play whenever a person in custody is subjected to
     either express questioning or its functional equivalent. That
     is to say, the term “interrogation” under Miranda
     refers not only to express questioning, but also to 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. The
     latter portion of this definition focuses primarily upon the
     perceptions of the suspect, rather than the intent of the
     police. This focus reflects the fact that the Miranda
No. 07-2901                                               15

    safeguards were designed to vest a suspect in custody
    with an added measure of protection against coercive
    police practices, without regard to objective proof of
    the underlying intent of the police. A practice that the
    police should know is reasonably likely to evoke an
    incriminating response from a suspect thus amounts
    to interrogation. But, since the police surely cannot
    be held accountable for the unforeseeable results of
    their words or actions, the definition of interrogation
    can extend only to words or actions on the part of
    police officers that they should have known were
    reasonably likely to elicit an incriminating response.
Id. at 301-02 (emphases supplied) (footnotes omitted).
   It is clear from the language, facts and context of Innis,
that the Supreme Court defined interrogation as (1) ex-
press questioning; or (2) its functional equivalent; it
defined the latter as any statements that “the police
should know are reasonably likely to elicit an incrim-
inating response from the suspect.” Id. at 301. Thus, as the
district court explained, Innis does nothing more than
define when police practices, other than express ques-
tioning, constitute interrogation.
  The Supreme Court of the United States has made it
clear that, when an individual is subject to custodial
interrogation, the fact that the custody was initiated for
a reason other than the subject matter of the interroga-
tion does not alter the necessity of warning the individual
of his right to silence and to the assistance of counsel.
As Justice Black wrote for the Court in Mathis v. United
States, 391 U.S. 1, 4-5 (1968):
16                                              No. 07-2901

     There is no substance to such a distinction, and in
     effect it goes against the whole purpose of the Miranda
     decision which was designed to give meaningful
     protection to Fifth Amendment rights.
Indeed, Miranda itself specifically says that “[b]y custodial
interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into
custody.” Miranda, 384 U.S. at 444 (footnote omitted).
Again in Beckwith v. United States, 425 U.S. 341 (1976), the
Supreme Court stressed that it was the inherently coercive
nature of the custodial setting, not the strength or content
of the Government’s suspicions, that triggered the need
for Miranda warnings. Id. at 346-47. Moreover, both
Miranda and Innis specifically note that the holding of
Miranda applies both to incriminating and exculpatory
statements. Innis, 446 U.S. at 302 n.5; Miranda, 384 U.S.
at 476-77.
  It is undisputed that Mr. Smiley was “in custody”—he
had been formally arrested—and it is further undisputed
that, for three hours, he was subjected to express question-
ing about the Garrett shooting. The State does not
dispute that Mr. Smiley’s exculpatory statements were
given in response to the detectives’ express questioning.
Because Mr. Smiley was in custody and was subject
to express questioning, the state court of appeals had no
reason to apply the rule for “the functional equivalent” of
express questioning. See, e.g., United States v. Montgomery,
714 F.2d 201, 202 (1st Cir. 1983) (“Appellant made in-
criminating statements only after agent Sherman had
interjected questions. . . . Since the questioning here was
No. 07-2901                                                 17

express, we have no occasion to go farther. This was
custodial interrogation.”). Consequently, the decision of
the court of appeals was an “unreasonable application of”
clearly established Supreme Court precedent because it
“unreasonably extend[ed] a legal principle from [Supreme
Court] precedent to a new context where it should not
[have] appl[ied].” Malinowski v. Smith, 509 F.3d 328, 335
(7th Cir. 2007) (second alteration in original).
  Mr. Smiley was in custody when the police subjected
him to extensive questioning about the Garrett murder.
Under these circumstances, clearly established Supreme
Court precedent required that the detectives inform
Mr. Smiley about his Miranda rights. See Mathis, 391 U.S.
at 4 (refusing “to narrow the scope of the Miranda holding
by making it applicable only to questioning one who is ‘in
custody’ in connection with the very case under investiga-
tion”); see also Stansbury v. California, 511 U.S. 318, 322-23
(1994) (explaining that, “in determining whether an
individual was in custody, a court must examine all of the
circumstances surrounding the interrogation, but ‘the
ultimate inquiry is simply whether there [was] a ‘formal
arrest or restraint on freedom of movement’ of the degree
associated with a formal arrest’ ” (emphasis supplied)
(quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per
curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495
(1977)))); Miranda, 384 U.S. at 444. Because the detectives
failed to administer a Miranda warning at the beginning
of the first custodial interrogation, all of the statements
made by Mr. Smiley during that interrogation should
have been suppressed. Missouri v. Seibert, 542 U.S. 600, 608
(2004) (“Miranda conditioned the admissibility at trial of
18                                                   No. 07-2901

any custodial confession on warning a suspect of his
rights: failure to give the prescribed warnings and obtain
a waiver of rights before custodial questioning generally
requires exclusion of any statements obtained.” (footnote
omitted)). Accordingly, we must conclude, respectfully,
that the decision of the state court of appeals constitutes
an unreasonable application of clearly established Su-
preme Court precedent.


C. Harmless Error Analysis
  The state court of appeals did not address the harmless
error issue. Therefore, there is no state court holding to
which we owe deference.5 Under these circumstances, we
must apply the “Brecht standard of actual prejudice.” Fry
v. Pliler, 127 S. Ct. 2321, 2326-27 (2007). To affirm the
district court’s grant of habeas relief under the Brecht
standard, we must determine that the Miranda viola-
tion had a “substantial and injurious effect or influence
in determining the jury’s verdict.” Brecht v. Abrahamson,
507 U.S. 619, 623 (1993) (adopting a standard first an-
nounced in Kotteakos v. United States, 328 U.S. 750, 764-65




5
  Cf. Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam) (“We
may not grant respondent’s habeas petition, however, if the
state court simply erred in concluding that the State’s errors
were harmless; rather, habeas relief is appropriate only if the
Ohio Court of Appeals applied harmless-error review in an
‘objectively unreasonable’ manner.”); Ben-Yisrayl v. Davis,
431 F.3d 1043, 1052 (7th Cir. 2005).
No. 07-2901                                                  19

(1946)).6 If a reviewing court is “in grave doubt about
whether or not that error is harmless,” the Justices have
explained, then that court “should treat the error . . . as
if it had a ‘substantial and injurious effect or influence’ ” on
the jury’s verdict. O’Neil v. McAninch, 513 U.S. 432, 436-37
(1995) (quoting Brecht, 507 U.S. at 627); see also United States
v. Dominguez Benitez, 542 U.S. 81, 82 n.7 (2004). The harm-
less error inquiry asks
    not what effect the constitutional error might generally
    be expected to have upon a reasonable jury, but rather
    what effect it had upon the guilty verdict in the
    case at hand. Harmless-error review looks, we have
    said, to the basis on which the jury actually rested
    its verdict. The inquiry, in other words, is not whether,
    in a trial that occurred without the error, a guilty
    verdict would surely have been rendered, but whether
    the guilty verdict actually rendered in this trial was
    surely unattributable to the error. That must be so,
    because to hypothesize a guilty verdict that was never
    in fact rendered—no matter how inescapable the
    findings to support that verdict might be—would
    violate the jury-trial guarantee.
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (citations
omitted); see also Wilson v. Mitchell, 498 F.3d 491, 504 (6th
Cir. 2007).



6
  On direct appeal, in contrast, errors are assessed under the
“harmless beyond reasonable doubt” standard set forth in
Chapman v. California, 386 U.S. 18, 24 (1967).
20                                                  No. 07-2901

  At the outset of our analysis, we must begin by acknowl-
edging that the improperly admitted statement was a
critical piece of evidence.7 At trial, Mr. Smiley never
denied having shot Garrett; indeed, the prosecution
introduced all of Mr. Smiley’s statements to the police.
The jury, accordingly, heard Mr. Smiley’s story about
the serious altercation between Garrett and Mr. Smiley
immediately before Mr. Smiley shot Garrett, but it also
heard Mr. Smiley’s repeated denials, prior to his confes-
sion, of any involvement in the murder. Mr. Smiley’s
sole defense, based on his confession, was that he had
shot Garrett because he had feared for his life. The jury’s
main task at trial, therefore, was to determine what
Mr. Smiley’s mental state had been when he pulled the
trigger. The Wisconsin trial court’s instructions gave the
jury several options: (1) it could reject the self-defense
theory in its entirety and convict Mr. Smiley, as it ended
up doing, of first-degree intentional homicide; (2) it
could convict Mr. Smiley of second-degree intentional
homicide, accepting a theory of imperfect self-defense;8 or



7
  See Agnew v. Leibach, 250 F.3d 1123, 1135 (7th Cir. 2001)
(evaluating the importance of the improperly admitted evi-
dence to the prosecution’s case); see also Zappulla v. New York,
391 F.3d 462, 472 (2d Cir. 2004) (discussing the “importance
of the improperly admitted evidence”).
8
  Wis. Stat. § 940.01(2)(b) (“Death was caused because the actor
believed he or she or another was in imminent danger of death
or great bodily harm and that the force used was necessary
to defend the endangered person, if either belief was unreason-
                                                   (continued...)
No. 07-2901                                                    21

(3) it could elect to acquit Mr. Smiley, accepting fully his
self-defense story.9 These instructions and Mr. Smiley’s
self-defense strategy make clear that Mr. Smiley’s trial
essentially was a referendum on the truthfulness of his
second statement to the police in which he described his
mental state during the struggle between himself and
Garrett. The improperly admitted statement, in which
he had lied, therefore was a key piece of evidence to a
jury that had to decide whether to believe Mr. Smiley’s
account. In short, the inadmissible statement was key to
the jury’s consideration of all three choices set forth in
the instructions. See Henry v. Kernan, 197 F.3d 1021, 1030
(9th Cir. 1999) (noting that the “State’s use of the chal-
lenged statements [obtained in violation of Miranda] went
to the root of their burden to prove beyond a reasonable


8
   (...continued)
able.”); id. § 940.01(3) (noting that, to sustain a conviction for
first-degree intentional homicide, the burden of proof is on
the State to prove beyond a reasonable doubt that the facts
constituting the defense did not exist).
9
   Wis. Stat. § 939.48(1) (“A person is privileged to threaten or
intentionally use force against another for the purpose of
preventing or terminating what the person reasonably be-
lieves to be an unlawful interference with his or her person by
such other person. The actor may intentionally use only such
force or threat thereof as the actor reasonably believes is
necessary to prevent or terminate the interference. The actor
may not intentionally use force which is intended or likely
to cause death or great bodily harm unless the actor
reasonably believes that such force is necessary to prevent
imminent death or great bodily harm to himself or herself.”).
22                                               No. 07-2901

doubt that Henry acted with the intent required for a
conviction of first or second degree murder, and not
in self-defense”); see also DePetris v. Kuykendall, 239 F.3d
1057, 1063-65 (9th Cir. 2001) (discussing the importance
of credibility in self-defense cases and holding that an
error was not harmless because the improperly admitted
evidence affected the jury’s choice among acquittal,
imperfect self-defense or first-degree murder).
  Throughout the trial, moreover, the prosecutor placed
great weight on Mr. Smiley’s inadmissible first statement,
using it to depict Mr. Smiley as an individual who, calmly
and deliberately, had devised an elaborate self-defense
story to frustrate the authorities. During his opening
statement, the prosecutor emphasized that the State
would show that Mr. Smiley had denied extensively
any involvement in Garrett’s murder but then had ad-
mitted to having done it in self-defense:
     I have mentioned to you that one of the things the
     defendant said was that it was self-defense. You will
     hear from the detectives that initially he said I wasn’t
     there. I didn’t do anything. I don’t know anything.
     I don’t have anything to do with this. Later he says
     well, yeah, I was there and I did have something to
     do with it and I had to do it. In between . . . I didn’t
     do it and I did it for a reason is an illusion.
R.15, Ex. V at 30-31. During summation, the prosecutor
repeatedly used Mr. Smiley’s first statement to impugn
Mr. Smiley’s credibility. He characterized Mr. Smiley’s self-
defense story as “illusion, deception, misdirection, lies,
calculated,” and he depicted Mr. Smiley as “cold, calm,
No. 07-2901                                               23

[and] calculating.” Id., Ex. X at 31-32. The prosecutor
continued:
   [Mr. Smiley’s first statement] demonstrates how cool,
   calm, and collected Mr. Smiley was. He tried to mis-
   lead his family by acting like a person with nothing
   to hide. When told the police were looking for him,
   he says, Oh, or words to this effect, you say the
   police want to talk to me? Fine, no problem, and calls
   the police. He then proceeds to spend an hour to two
   hours with two detectives in the homicide unit giving
   them a line—I have down here a line of bull—well,
   a line until a chance observation of blood on his
   clothes causes him to switch to plan B. Imagine that.
   You’ve done what the defendant did and you
   simply trot down to the police station and sit there,
   and for well over an hour you describe going here,
   going there, being with so and so, picking up the
   snake, getting rid of the snake. That’s bold. That’s cool.
     [Exhibits] 119 and 120 are the handwritten and typed
   summaries of what Mr. Smiley had to say. Once it
   was obvious he wasn’t going to succeed with the,
   quote, an intruder burglar did it ruse, it is illogical to
   believe that Mr. Smiley went from deception, illusion
   and misdirection to candor, completeness and contri-
   tion. He did not do a 180 degree turn. He makes a
   claim of self-defense, but there is a recurring display
   of self-serving, self-preserving and self-centeredness.
     The second statement contains some truth, but it
   contains much that you should reject as untrue. Fur-
   ther, the parts that you conclude are untrue should
24                                               No. 07-2901

     be held against Mr. Smiley. That is, people lie to
     gain something. The truth leads to consequences they
     view as unfavorable. The lie is intended to allow for
     undeserved, favorable consequences. So when you
     find a lie, don’t just ignore it. You use it to calculate
     the truth because if someone’s pointing you in that
     direction, that’s a lie. There is a very strong likeli-
     hood you should be looking the opposite way, but
     that’s for you to reconcile, for you to calculate the
     truth and to do what you can to assure that the appro-
     priate consequences attend the act.
R.8, Ex. N at 22-23. The jury, thus, was exposed re-
peatedly to the inadmissible first statement, and, from
the prosecutor’s emphasis, it is evident that the State
itself believed that this evidence was critical in obtaining
Mr. Smiley’s conviction. See Arizona v. Fulminante, 499
U.S. 279, 297-98 (1991) (noting that “the State recognized
that a successful prosecution depended on” the improp-
erly admitted evidence); Satterwhite v. Texas, 486 U.S. 249,
260 (1988) (explaining that the error was not harmless,
in part, because “the prosecution placed significant
weight” on the inadmissible evidence); Zappulla v. New
York, 391 F.3d 462, 471 (2d Cir. 2004) (discussing, in the
harmless error context, “whether the prosecutor found
the erroneously admitted evidence to be important,” and
concluding that the “prosecutor heavily emphasized” the
inadmissible evidence); Murillo v. Frank, 402 F.3d 786, 792-
93 (7th Cir. 2005).
  Absent the improperly admitted statement, the jury
could well have determined that Mr. Smiley’s self-defense
No. 07-2901                                                        25

story was consistent with the physical evidence and
testimony that was presented at trial. For example, Mr.
Smiley’s second statement explained that he had been
walking with a limp because Garrett, who was much
larger than Mr. Smiley, had swung him around, causing
Mr. Smiley to hit his knee against a wall. The second
statement also provided an explanation for the bite
mark that the officers had observed on Mr. Smiley’s back,
and that explanation was consistent with Mr. Smiley’s
description of the manner in which he and Garrett had
been interlocked during the struggle. Notably, the jury
further could have found that the details of Mr. Smiley’s
story were consistent with the bullet wounds found on
Garrett’s body. 10 Finally, both Monica Walters, Garrett’s
girlfriend, and Dominique Washington, Mr. Smiley’s
girlfriend, testified that they too had suspected Garrett of
various thefts, corroborating Mr. Smiley’s account of how
the altercation between he and Garrett began.1 1 This nexus
between his confession and the evidence proffered at
trial increases the likelihood that the improper ad-
mission of Mr. Smiley’s first statement, which discredited
the exculpatory aspects of his confession, contributed to
the conviction. Cf. Hanrahan v. Thieret, 933 F.2d 1328, 1340-
41 (7th Cir. 1991) (explaining that the “less believable the
defense, after all, the more likely the conclusion that
the constitutional error did not contribute to the con-
viction,” and concluding that the defendant was “unable



10
     R.15, Ex. W at 73, 75-77; id., Ex. V at 134-35, 142-43, 146-49.
11
     R.8, Ex. K at 35-38; id., Ex. J at 14-15.
26                                              No. 07-2901

to reconcile his version of the events effectively with . . .
the physical evidence”); see also Baker v. Montgomery,
811 F.2d 557, 560 (5th Cir. 1987) (denying habeas relief
where the defendant’s self-defense testimony “was con-
tradictory to all other evidence and testimony before
the jury”).
  The State nevertheless contends that, even if Mr.
Smiley’s first statement had been suppressed, the prosecu-
tor would have been able to argue to the jury that Mr.
Smiley was not credible. The State posits that, in making
such an argument, the prosecutor could have pointed to
Mr. Smiley’s deceptive attempt to make the crime scene
look as though Garrett had surprised a burglar and to
Mr. Smiley’s fleeing from the crime scene and hiding
himself and the two guns at a friend’s house. We believe
that such an argument would have been far less
damaging to Mr. Smiley’s credibility than the argument
that was made. The jury, for example, could have found
(and Mr. Smiley’s counsel certainly could have argued)
that Mr. Smiley’s staging of the crime scene and running
away was a panicked reaction by a scared individual
who had just engaged in a life-and-death struggle. Fur-
thermore, contrary to the prosecutor’s argument, the
jury would have heard that Mr. Smiley had called the
police as soon as he had heard that they were interested
in speaking with him—a fact that Mr. Smiley’s counsel
could have argued was evidence of Mr. Smiley’s candor
and of a lack of consciousness of guilt and therefore
consistent with self-defense. Because the State did not
have other evidence similarly impeaching Mr. Smiley’s
credibility, the improperly admitted evidence was not
No. 07-2901                                               27

cumulative, a consideration that cuts against a finding of
harmlessness. See Fulminante, 499 U.S. at 299-300 (noting
that the improperly admitted confession “was not merely
cumulative of the other” (emphasis in original)); Agnew v.
Leibach, 250 F.3d 1123, 1135 (7th Cir. 2001) (same).1 2
  To summarize, Mr. Smiley’s criminal conviction
hinged on his credibility, the improperly admitted evi-
dence was oft-used and instrumental in undermining
that credibility, and Mr. Smiley’s self-defense theory was
not a frivolous one. We recognize, as the State notes, that
Mr. Smiley could not have testified at trial without
risking the admission of his first statement for purposes
of impeachment. See Harris v. New York, 401 U.S. 222
(1971). Nevertheless, we must resolve the harmless error
issue on the record before us and without hypothesizing
whether “in a trial that occurred without the error, a
guilty verdict would surely have been rendered.” Sullivan,
508 U.S. at 279. Consequently, we must conclude that
the admission of Mr. Smiley’s first statement to the
police had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507
U.S. at 623.




12
  Cf. Hinton v. Uchtman, 395 F.3d 810, 820-21 (7th Cir. 2005)
(holding that the error was harmless because the improperly
admitted evidence was cumulative).
28                                           No. 07-2901

                      Conclusion
  For the foregoing reasons, the judgment of the district
court, granting the writ of habeas corpus, is affirmed.
                                               A FFIRMED




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