In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1507

Eddie E. Lewis,

Petitioner-Appellant,

v.

Charles B. Miller, Superintendent,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:97CV0300AS--Allen Sharp, Judge.


Argued March 1, 2000--Decided June 30, 2000



  Before Eschbach, Coffey, and Diane P. Wood, Circuit
Judges.

  Diane P. Wood, Circuit Judge. Eddie E. Lewis was
convicted in the state courts of Indiana of first
degree murder and murder while committing the
crime of arson. These convictions were affirmed
on appeal to the Supreme Court of Indiana, and
the Indiana courts later rejected his request for
collateral relief. This petition under 28 U.S.C.
sec. 2254 followed, in which Lewis has offered
two reasons why the Indiana courts violated his
constitutional rights: police officers violated
his Fifth Amendment right to remain silent and to
have counsel present when they continued to
interrogate him after he indicated that he wanted
to remain silent and seek the help of a lawyer;
and his confession was unconstitutionally
coerced. We conclude that the district court
correctly rejected these claims, and we therefore
affirm.

I

    A.   The Crimes

  The crimes for which Lewis was convicted
occurred quite some time ago. In the early
morning hours of January 7, 1977, Lewis and
Ronald Wiggly decided to go over to the home of
Mary Mingo, the sister of Lewis’s girlfriend,
with the idea that they would scare her. Wiggly
had a shotgun he had retrieved from his car. When
they got to Mingo’s house, Lewis set fire to a
beer bottle filled with gasoline and threw it at
the rear door. He turned and fled, and then heard
a shot.

  Mingo had been sitting in her living room with
Richard Taylor. She noticed the fire through her
kitchen window and went to investigate, as did
Taylor. Upon opening the back door, Taylor was
struck in the head and chest by a shotgun blast,
which inflicted the wounds that proved fatal to
him. The police investigation revealed not only
a beer bottle with a smoldering rag outside
Mingo’s house, but also footprints leading from
Mingo’s yard to the house where Lewis was
staying. Other evidence also connected Lewis with
the beer bottle and the shotgun. See generally
Lewis v. State, 397 N.E.2d 983, 984 (Ind. 1979).


  B. The Interrogation
  Because the facts surrounding Lewis’s
interrogation by the local police are central to
his petition and this appeal, we recount them in
detail. At approximately 9:00 a.m. on January 7,
the police approached Lewis. He voluntarily
accompanied them to the police station for
questioning. Before being transported, and then
again while en route, the officers gave him his
Miranda warnings. See Miranda v. Arizona, 384
U.S. 436 (1966). Once at the stationhouse, he was
placed in an interrogation room and questioned by
Officers Lewis DeLuna and Wayne Brown for
approximately two hours. DeLuna and Brown
reiterated the Miranda warnings before that
session began.

  Whatever went on during that two-hour period is
unclear. (There is some indication that the
police confronted Lewis about previous incidents
between himself and Mingo; Lewis denied any
involvement other than once breaking her window.)
Nonetheless, something prompted DeLuna and Brown
to decide to conduct a polygraph examination on
Lewis. Lewis was taken to another building for
this purpose. Before beginning the polygraph
interrogation, Officer Charles Szczerbik (who was
the administrator) advised Lewis of his rights
and gave him a Miranda waiver form to sign. After
reading the form, Lewis said that he "wanted to
talk with an attorney before taking the polygraph
test because he was wary of polygraph
examinations." 397 N.E.2d at 984. Szczerbik
immediately stopped what he was doing, telephoned
DeLuna and Brown, and informed them that Lewis
refused to take the test.

  Lewis was then returned to the police station.
By this time, it was afternoon. After yet another
set of Miranda warnings (his fifth), the police
began to interrogate him again. DeLuna did not
recall when the post-polygraph interrogation
began, but Lewis testified that he was brought
back to the station after the test at about
12:30-1:00 p.m. According to the Supreme Court of
Indiana, Lewis "evidently gave them the
impression that he did not want to talk to them
any more at that time." Id. at 985. Around 3:00
p.m., the police ceased their interrogation and
moved Lewis to the turnkey’s room.

  Another two hours passed, after which Lewis was
brought back to the interrogation room. Lewis
initially remained silent. A new officer, Officer
Kenneth Shannon, then arrived and began further
questioning. Before he began speaking with Lewis,
he read the waiver of rights form to Lewis, asked
Lewis to read it for himself, and then read the
form to him again. Lewis finally signed the
waiver form at 5:43 p.m. He gave a verbal account
of the murder and signed a written transcription
that Officer Shannon had prepared. While Lewis
was talking, a shotgun that Officer Shannon had
shown him for purposes of identification remained
in the interrogation room (ominously, says Lewis;
innocuously, says the state). In either event,
the state wound up with Lewis’s confession; a
Lake County Superior Court jury convicted him on
the two charges; and he was sentenced to a term
of life imprisonment for the charge of murder
during the perpetration of arson.

II

  Almost immediately after his arrest, Lewis began
his efforts (which continue to this day) to
suppress his confession. Before his trial, he
moved to suppress his statement on the ground
that it had been obtained in violation of his
Miranda rights to counsel and to remain silent,
and he also alleged that the statement was
involuntary. At the trial itself, Lewis objected
to the admission of the statement solely on the
ground that it had been taken in violation of his
Miranda rights. On direct appeal to the Supreme
Court of Indiana, he argued (1) that when he told
Officer Szczerbik (the polygraph officer) that he
wished to talk to a lawyer, the police were
required to cease all interrogation from that
point forward until a lawyer had been provided;
(2) that the police violated his rights under
Miranda by ignoring his indication by his actions
that he wished to remain silent when they
continued to interrogate him after the polygraph
encounter, briefly, and then, after the two-hour
interlude, by Officer Shannon.

  The Supreme Court of Indiana rejected both
claims. With respect to the first, it held that
"there was substantial evidence from which the
trial court could have found that appellant Lewis
was asserting his right to counsel only with
respect to the polygraph examination, and that
his rights under Miranda v. Arizona, supra, were
not denied by further interrogation." 397 N.E.2d
at 985. With respect to the second, the court
held that the police did not violate his rights
by renewing their questioning some two hours
after the first round stopped. When Lewis
indicated by his actions that he did not wish to
be questioned, the police officers complied with
his desires. As the court held, "[t]he renewed
questioning which produced the confession took
place nearly two hours later, by a different
policeman, Officer Shannon," id., who twice
orally advised Lewis of his rights and obtained
a signed waiver form. This was enough, the court
held, to satisfy Lewis’s right to have
questioning cut off--a right that the court noted
did not prohibit "any further interrogation at
any time." Id. (emphasis in original).

  In 1986, Lewis filed a pro se petition for
post-conviction relief in which he alleged
ineffective assistance of trial counsel on three
grounds, including failure of trial counsel
properly to challenge his confession on the
ground that he had been detained without probable
cause when he made the statement. Later, he was
permitted to amend the petition to include a
claim of ineffective appellate counsel. After a
hearing, the state superior court denied the
conviction in 1990, holding that the
admissibility of the confession was res judicata
because it had been decided on direct appeal.
Lewis, who finally had assistance of counsel,
responded with a motion for relief from judgment.
The court granted the motion prepared by counsel
and vacated the order denying post-conviction
relief.

  Working once again from a clean slate, Lewis
filed an amended petition in 1991. Eventually,
after some preliminary procedural confusion
because of the pro se nature of his initial
petition, see Lewis v. State, 595 N.E.2d 753
(Ind. Ct. App. 1992), the superior court accepted
the petition, but it denied relief on the merits.
Lewis appealed that decision to the Indiana Court
of Appeals, where he raised five claims for
review: (1) whether the post-conviction court
used the proper standard of review during his
hearing, (2) whether the trial court erred when
it instructed the jury on the elements of the
offense of murder while perpetrating arson and
accessory before the fact, (3) whether the post-
conviction court erred when it refused to
consider the admissibility of Lewis’s statement
to the police based on the doctrine of res
judicata, (4) whether Lewis’s conviction had to
be reversed because his confederate was acquitted
in a later trial, and (5) whether Lewis had been
denied the effective assistance of both trial and
appellate counsel. Conspicuous by its absence was
any specific claim alleging that his confession
was involuntary, apart from the various Miranda
problems he was trying to raise.

  In its discussion of claim 3, the appellate
court noted that the Supreme Court of Indiana had
dealt with the admissibility of Lewis’s statement
in its opinion on direct review, which under
Indiana law precluded further inquiry into the
subject absent extraordinary circumstances. The
court found no such circumstances in Lewis’s
case. Its comment in footnote 2 reflects the fact
that Lewis was once again arguing that the
violation at issue related to the continuation of
interrogation after his effort to invoke his
rights, and not that it involved coercion.
Finding no merit in any of the claims he raised,
the Indiana Appellate Court affirmed the denial
of post-conviction relief, and the Supreme Court
of Indiana denied Lewis’s petition to transfer
the case.

  That brought Lewis to the federal court. In his
petition for relief under 28 U.S.C. sec. 2254, he
raised ten claims. The only one relevant to this
appeal is the first, which claimed that the state
trial court violated his Fifth and Sixth
Amendment rights by failing to suppress his
confession. The district court’s order is
somewhat ambiguous about the basis for this
claim, because it comments that "[a]t his state
trial, the petitioner attempted to retract his
confession claiming that it was not a voluntary
statement and was instead the product of duress
and coercion." But then the district court
reviewed the Indiana proceedings on this point
and made the following finding:

The Supreme Court of Indiana noted that the
petitioner read and signed the waiver form and
expressed no desire to consult with an attorney
at the time of his confession. The court held
that not only was there sufficient evidence to
support a finding that the petitioner asserted
his right to counsel only with respect to the
polygraph examination, and further, his right to
cut off questioning was scrupulously honored by
the police. Lewis, 397 N.E.2d at 985.

Noting that Lewis’s federal petition was not
filed until 1997, and thus was governed by the
standards set forth in the Anti-terrorism and
Effective Death Penalty Act (AEDPA), the court
denied the petition.
III

  A. Continued Interrogation After Attempted
Polygraph

  Lewis’s first point on this appeal relates to
the alleged violation of his rights under Miranda
to have interrogation cease and to have counsel
present after he told the polygraph examiner that
he wanted to talk with a lawyer. This claim was
adjudicated on the merits by the Supreme Court of
Indiana, which leaves us only the task of
deciding whether that court reached a decision
that was "contrary to, or involved an
unreasonable application of, clearly established
Federal law." See 28 U.S.C. sec. 2254(d)(1).

  We find no such error in the Supreme Court of
Indiana’s decision. That court rested its
conclusion on the factual finding that Lewis’s
request for an attorney at the time he was with
Officer Szczerbik was a limited one, that
pertained only to the polygraph examination
itself. Lewis’s able appellate lawyers in this
court concede that a defendant may invoke his
right to counsel for a limited purpose, under
decisions such as Connecticut v. Barrett, 479
U.S. 523, 529 (1987), and United States v.
LaGrone, 43 F.3d 332, 336-37 (7th Cir. 1994).
They urge, however, that we should adopt a
presumption that once a person invokes his right
to counsel, that invocation attaches for all
future interrogation that may occur. This, they
point out, is the rule for waivers of rights, so
why should it not be the rule for invocations of
rights.

  Unfortunately, in Barrett the Supreme Court
essentially foreclosed this argument, when it
held that limited invocations of rights were
possible. The Supreme Court of Indiana found that
Lewis’s statement here was limited to the
polygraph proceeding. To the extent that this was
a finding of fact, it is protected under 28
U.S.C. sec. 2254(d)(2) by an equally strict
standard of review: we would have to find that
the decision was "based on an unreasonable
determination of the facts in light of the
evidence presented in the State court
proceeding." Id. It was not, and so we move on to
the other aspect of this claim.

  Wholly apart from the right to have counsel
present during interrogation, Lewis also argues
that the police had an unqualified duty to cease
all interrogation once he indicated by his
actions that he did not wish to talk to them.
Instead, after waiting some two hours, Officer
Shannon began again and ultimately extracted his
confession. As Lewis’s lawyers put it in their
brief, "[h]is confession occurred only because he
was worn down by the constant interrogation of a
number of officers, culminating in Officer
Shannon’s highly coercive interrogation."
Appellant’s Brief at 9.

  The Supreme Court of Indiana considered this
argument, but it found that there was no reason
why the police, having stopped interrogation at
the suspect’s request, had to regard their duty
to do so as a perpetual one, citing Michigan v.
Mosley, 423 U.S. 96 (1975). After Lewis’s direct
appeals were over, and long after the events in
question occurred, the Supreme Court of the
United States decided Edwards v. Arizona, 451
U.S. 477 (1981), in which the Court held that
when a suspect invokes his Fifth Amendment right
to counsel, the police must immediately cease
questioning unless the suspect initiates further
communication. See United States v. Jackson, 189
F.3d 502, 511 (7th Cir. 1999). But Edwards was
not on the books at the time the Supreme Court of
Indiana considered this case, and it cannot be
applied retroactively in collateral challenges to
a conviction. Solem v. Stumes, 465 U.S. 638, 650
(1984). We must therefore decide whether the
Supreme Court of Indiana’s decision was contrary
to, or an unreasonable application of, clearly
established pre-Edwards Supreme Court precedents.


  Once again, Lewis’s claim cannot survive that
demanding standard of review. In White v.
Finkbeiner, 611 F.2d 186 (7th Cir. 1979), this
court (like the Supreme Court of Indiana)
declined to read Miranda as prohibiting the
authorities from initiating renewed questioning
following a request for an attorney. Id. at 191.
Instead, we looked at the totality of the
circumstances to decide whether a voluntary,
knowing, and intelligent waiver of the right to
counsel occurred. See also United States ex rel.
Karr v. Wolff, 732 F.2d 615, 619 (7th Cir. 1984).
White was vacated and remanded to this court in
light of Edwards, see 451 U.S. 1013 (1981), but
it stands as a strong indication that the view
the Supreme Court of Indiana took of the
interrogation process was a reasonable one under
pre-Edwards law and certainly was not contrary to
existing Supreme Court decisions. Thus, the
district court was correct to reject this
argument as well.


  B.   Coerced Confession

  Last, we consider Lewis’s argument that his
statement was not voluntary because of Officer
Shannon’s coercive conduct. Counsel point to the
following circumstances: Lewis had only a sixth-
grade education; he was kept in the same room for
ten hours without food; he was alone in the room
with Officer Shannon, who happened to be a
relative and friend of the victim; and Officer
Shannon prominently showed the shotgun to Lewis,
kept it in the closed room throughout the
interrogation, and (Lewis alleged) held it up
against Lewis’s head.

  Had Lewis’s coercion claim been properly
presented to the Indiana courts, these facts
would have been enough to require further
exploration in a hearing. We conclude, however,
that the coercion claim cannot be entertained at
this point because of procedural default. In
coming to this conclusion, because of the
troubling nature of the allegations, we have
conducted our own careful review of the record in
the Indiana courts. We conclude that at no time
did Lewis give those courts a full and fair
opportunity to rule on the merits of this claim.
See Morrison v. Duckworth, 898 F.2d 1298, 1300
(7th Cir. 1990). Lewis notes in his reply brief
that he included a complaint about voluntariness
in his motion to suppress, but that is not
enough. He had the obligation to present this
claim to the Indiana Supreme Court, see
O’Sullivan v. Boerckel, 526 U.S. 838, 845-46
(1999), and he did not. At oral argument, he
directed our attention to particular pages of his
brief before the Indiana Supreme Court. Our
review of those materials shows that at most
Lewis put facts before the court that suggested
coercion. But the brief contains not a word about
coercion or involuntariness as a legal basis for
relief. Whether Lewis was coerced into waiving
his right to counsel and to remain silent are
questions distinct from whether his statement was
voluntary under the totality of the
circumstances. Baskin v. Clark, 956 F.2d 142, 145
(7th Cir. 1992). Lewis cannot assume that his
arguments about his Miranda rights were enough to
raise his coercion point as well, even if the
underlying facts are the same. Winsett v.
Washington, 130 F.3d 269, 273-74 (7th Cir. 1997).

  We note as well that Lewis did not present the
coercion claim to the Indiana courts during his
post-conviction proceedings. This omission
independently bars our review of the point. See
Momient-El v. DeTella, 118 F.3d 535, 539 (7th
Cir. 1997). Finally, we note that insofar as the
Supreme Court of Indiana addressed the
interrogation by Officer Shannon, it stressed
that Officer Shannon orally advised appellant of
his rights twice before Lewis signed the waiver
form. The record in the state court also
indicates that Officer Shannon showed Lewis the
shotgun for a legitimate purpose--identification-
-and so it is not obvious that the shotgun’s
continued presence in the room was designed to
intimidate Lewis. These points could have been
explored in a hearing in the state courts, had
Lewis presented them properly. Because he did
not, they are forfeited now.

IV
  For the reasons stated, we Affirm the judgment of
the district court.
