Matthew C. Stechauner v. Judy P. Smith ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1079
MATTHEW C. STECHAUNER,
Petitioner-Appellant,
v.
JUDY P. SMITH, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:08-cv-000607-CNC — C.N. Clevert, Jr., Judge.
____________________
ARGUED JANUARY 11, 2017 — DECIDED MARCH 31, 2017
____________________
Before BAUER, FLAUM, and EASTERBROOK, Circuit Judges.
FLAUM, Circuit Judge. Matthew Stechauner seeks habeas
relief from his Wisconsin convictions for second-degree reck-
less homicide and armed robbery. He argues that the Wiscon-
sin appeals court unreasonably denied post-conviction relief
despite alleged Miranda violations and ineffective assistance
of counsel. The district court declined to hold an evidentiary
hearing and denied Stechauner’s petition for habeas relief. For
the following reasons, we affirm.
2 No. 16-1079
I. Background
On November 22, 2004, Stechauner was riding in a car
with friends. An unmarked police cruiser pulled up behind
the car, and Stechauner tried to hide his sawed-off shotgun
from view. In the process, the gun accidentally fired and hit
Stechauner in the leg, and he was driven to the hospital.
Stechauner received treatment for the gunshot wound. 1 In
the process of tending to Stechauner, one of the nurses noticed
a bag of bullets in Stechauner’s pocket, and so called the po-
lice. Officer Guajardo went to the hospital but could not locate
the bullets. Then, at about 7:15 PM, Detective Kolatski arrived,
followed later by Sergeant Doney. Officer Guajardo was in full
police uniform; Detective Kolatski and Sergeant Doney ap-
parently were not. The officers entered Stechauner’s hospital
room, where he was awaiting discharge but still dressed in a
hospital gown. Stechauner’s mother also arrived at the hospi-
tal but was denied access to Stechauner’s room. (However,
there is no indication that Stechauner was aware at that time
that his mother was trying to see him.) Detective Kolatski later
testified that he had the following exchange with Stechauner
in the hospital room:
… I told [Stechauner] that in order for me to
help him out at all that he needed to tell me the
entire truth including about where the bullets
were. … I explained to him that … we realized
that he hadn’t left the room, there were no visi-
tors, and that the bullets were either in the room
someplace or he had possibly ingested them.
1The report of Stechauner’s hospital visit stated that he received a
dose of “Dialudin” around 6:30 PM, and a prescription for Vicodin.
No. 16-1079 3
And that shortly thereafter Mr. Stechauner bent
over on the gurney and pulled … the bag of bul-
lets out from what I believe to be his rectum.
Stechauner had then explained to the officers that he had
shot himself with the sawed-off shotgun in a car, and that he
had a probation officer. When Detective Kolatski asked Stec-
hauner what had happened to the gun, Stechauner answered
that it was being kept at a friend’s house. Stechauner then
called the friend from the hospital to arrange for the gun to be
dropped off in a trash container close to the house. The ques-
tioning lasted about ninety minutes, during which time Stec-
hauner “seemed lucid, and … was able to answer … ques-
tions.” Stechauner was not given Miranda warnings at the
hospital. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Around 8:00 or 8:30 PM, Stechauner was discharged from
the hospital. He left on crutches with the officers, was placed
in handcuffs, and got into Officer Guajardo’s cruiser, with De-
tective Kolatski following behind. Stechauner directed the of-
ficers to the place where he believed the gun was located, but
the officers were unable to find the gun in the trash bins near
Stechauner’s friend’s house. Around that time, the friend ar-
rived and he and Stechauner got into a heated discussion,
with Stechauner still seated inside the cruiser and the friend
on the other side of the cruiser door. After the exchange, ei-
ther Stechauner or the friend (neither party knows which)
told the officers that the gun was actually hidden under the
steps leading up to the friend’s house. Officer Guajardo found
the gun and gave it to Detective Kolatski. Kolatski then tried
to remove a casing lodged inside the gun but had trouble do-
ing so. Seeing Detective Kolatski struggle, Stechauner
shouted out that one had to use pliers to remove the casing.
4 No. 16-1079
Officer Guajardo also heard Stechauner’s instructions and re-
called that she had found a pair of pliers in Stechauner’s coat
when she had been searching for the bag of bullets in the hos-
pital. She gave Detective Kolatski the pliers, who then re-
moved the casing. As of this point, Stechauner still had not
received any Miranda warnings.
While handling the sawed-off shotgun, Detective Kolatski
developed a hunch that Stechauner may have been involved
in a recent string of robberies and other crimes carried out us-
ing such a weapon. Detective Kolatski said that he wanted to
bring Stechauner in for further questioning. Around 9:00 PM,
Stechauner went with Detective Kolatski to the station, where
Stechauner was formally arrested. Several hours later, start-
ing around 2:00 AM the following day, Stechauner was given
Miranda warnings and was interrogated by two other officers.
Over the course of the next nine hours, Stechauner admitted
to several crimes, some tied to the sawed-off shotgun.
Based on Stechauner’s confession, the State charged Stec-
hauner with first-degree reckless homicide as party to a
crime; 2 “two counts of ‘armed robbery, use of force’ as party
to a crime”; personal robbery; and possession of a firearm by
a felon. Stechauner pleaded not guilty and moved to suppress
his hospital statements, cruiser statements, and the sawed-off
shotgun.
2 In Wisconsin, “[w]hoever is concerned in the commission of a crime
is a principal and may be charged with and convicted of the commission
of the crime although the person did not directly commit it. …” Wis. Stat.
§ 939.05. Such a defendant is called a “party to a crime.” Id.
No. 16-1079 5
The trial court held a suppression hearing at which Stec-
hauner, Detective Kolatski, and other law enforcement offi-
cials testified. Kolatski testified that Stechauner had not been
in custody at the hospital, had been free to leave, had seemed
lucid and able to answer questions, and never had been
placed in handcuffs in the hospital room. Regarding the
cruiser statements, Kolatski said that Stechauner had “indi-
cated where the alley was where the gun was supposed to be
hidden” and had “yelled out to [Kolatski] when [Stechauner]
saw [Kolatski] struggling … to get the casing out.”
In contrast, Stechauner testified that he had been intoxi-
cated upon arriving at the hospital from a combination of al-
cohol, marijuana, sleeping pills, and ecstasy; that the officers
had handcuffed him to the hospital bed; that the officers had
told Stechauner’s mother that he was already under arrest at
the hospital; and that the hospital had given him three Vi-
codin, which he had taken before leaving. Relevant to this ap-
peal, Stechauner’s trial counsel did not call several witnesses.
According to Stechauner, these witnesses included Stec-
hauner’s mother, who would have testified that Stechauner
had been in custody in the hospital; several friends, who
would have said that Stechauner had been intoxicated before
the accidental shooting; and the treating physician and nurse,
who would have testified that he had been handcuffed to the
hospital bed. Trial counsel also did not introduce the hospital
report of Stechauner’s treatment.
The trial court denied Stechauner’s motion to suppress.
The court credited Detective Kolatski’s testimony and dis-
credited Stechauner’s, finding that Stechauner had not been
restrained in any way in the hospital, and had not been in cus-
tody, such that Miranda’s warning requirement had not been
6 No. 16-1079
triggered. The court ruled the hospital statements were ad-
missible. The trial court then found that Stechauner had been
in custody once in handcuffs and in the squad car. However,
the court determined that Stechauner’s statements regarding
the shotgun had all been volunteered and were not the result
of custodial interrogation. The court found no Miranda viola-
tion with respect to these statements and admitted them, as
well. The court also admitted the shotgun.
Stechauner later pleaded no contest to second-degree
reckless homicide as party to a crime, and armed robbery as
party to a crime. The other counts were dismissed but consid-
ered for sentencing purposes. Stechauner was sentenced to a
total of twenty-five years of confinement and fifteen years of
extended supervision.
Stechauner moved for post-conviction relief in the trial
court, arguing that the court should have suppressed the in-
culpatory statements made in the hospital and in the police
cruiser. The court denied that motion, and Stechauner, repre-
sented by new counsel, appealed. In this first state-court ap-
peal, Stechauner argued that both the hospital and cruiser
statements had been taken in violation of Miranda, but did not
argue that his trial counsel had been ineffective for not calling
the friendly witnesses and for not introducing the hospital re-
port. The Wisconsin Court of Appeals affirmed the trial court,
State v. Stechauner, No. 2006AP1923-CR, 731 N.W.2d 384 (un-
published table decision), 2007 WL 901536 (Wis. Ct. App.
Mar. 27, 2007), and the Wisconsin Supreme Court declined re-
view, State v. Stechauner, No. 2006AP1923-CR, 741 N.W.2d 241
(unpublished table decision) (Wis. July 17, 2007).
On July 14, 2007, Stechauner filed his petition for a writ of
habeas corpus with the district court under the Antiterrorism
No. 16-1079 7
and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254
(“AEDPA”), and raised five grounds for relief. The trial
court’s screening order eliminated two of those grounds, leav-
ing the following: (1) that the state trial court had admitted
Stechauner’s statements and shotgun in violation of Miranda,
(2) that Stechauner had received ineffective assistance of ap-
pellate counsel due to appellate counsel’s failure to argue that
trial counsel had been ineffective at the suppression hearing,
and (3) that Stechauner’s plea had been involuntary. Noting
that Stechauner had failed to exhaust grounds (2) and (3) in
the state courts, the district court administratively closed the
habeas petition to give Stechauner a chance to exhaust them.
Stechauner then filed a second motion for post-conviction
relief in state court, raising the three remaining issues men-
tioned above. See Wis. Stat. § 974.06. The state trial court de-
nied relief, and the Wisconsin Court of Appeals affirmed.
State v. Stechauner, No. 2009AP2367, 795 N.W.2d 62 (un-
published table decision), 2010 WL 4945103 (Wis. Ct. App.
Dec. 7, 2010). The appellate court rejected Stechauner’s Mi-
randa arguments on the ground that it had already disposed
of them in his first motion for post-conviction relief. Because
Stechauner had failed to raise the two other arguments in the
first post-conviction motion, they were barred unless Stec-
hauner could demonstrate good cause for having failed to
raise them. See Wis. Stat. § 974.06(4). The court reasoned that
post-conviction counsel’s alleged ineffectiveness in failing to
raise these issues would have been sufficient reason to excuse
their earlier absence. The court then applied the Strickland
standard for effective assistance of counsel and rejected the
arguments. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The court determined that none of the proposed wit-
nesses actually would have aided Stechauner’s suppression
8 No. 16-1079
arguments, and dismissed the hospital-record argument as
meritless or underdeveloped. The court concluded that Stec-
hauner had not suffered any prejudice from these alleged er-
rors and thus had received effective assistance of counsel. The
Wisconsin Supreme Court again declined review. State v. Stec-
hauner, No. 2009AP2367, 797 N.W.2d 524 (unpublished table
decision) (Wis. Apr. 12, 2011).
On June 15, 2011, the district court reopened Stechauner’s
case. Stechauner presented the three grounds for relief and
requested an evidentiary hearing. The district court denied
habeas relief and the request for a hearing, but granted a cer-
tificate of appealability on the Miranda and Strickland issues. 3
II. Discussion
We review de novo the district court’s denial of habeas cor-
pus relief. Harris v. Thompson, 698 F.3d 609, 622 (7th Cir. 2012)
(citation omitted). When a state court has reviewed a peti-
tioner’s claim on the merits and denied relief, a habeas peti-
tion may be granted only if the state court’s ruling “was con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States,” or “was based on an unreasonable de-
termination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). Under this
deferential standard, the state court’s ruling stands unless
“there is no possibility fairminded jurists could disagree” that
it conflicts with Supreme Court precedent. Harrington v. Rich-
ter, 562 U.S. 86, 102 (2011).
3 The district court declined to issue a certificate of appealability on
the ground that Stechauner’s plea had been involuntary, and Stechauner
does not pursue this issue on appeal.
No. 16-1079 9
“The operative decision under review is that of the last
state court to address a given claim on the merits.” Harris, 698
F.3d at 623 (citing Greene v. Fisher, 565 U.S. 40, 132 S. Ct. 38, 45
(2011); Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006)). In this
case, there are two operative decisions: (1) the Wisconsin ap-
pellate court’s March 27, 2007, decision denying relief on the
Miranda claims (Stechauner I); and (2) the appellate court’s De-
cember 7, 2010, decision denying relief on the ineffective-as-
sistance claims (Stechauner II).
A. Miranda Warnings
Under Miranda v. Arizona, the government may not use in
a prosecution any “statements” that “stemm[ed] from custo-
dial interrogation of the defendant” unless the government
has first given the familiar Miranda warnings and the defend-
ant has voluntarily waived his rights. 384 U.S. at 444–45. This
warning requirement obtains when the defendant is interro-
gated while in custody.
Police interrogation includes both express questioning
and “words or actions on the part of the police that they
should have known were reasonably likely to elicit an incrim-
inating response.” Rhode Island v. Innis, 446 U.S. 291, 303
(1980). A person is “in custody” for Miranda purposes when
one’s “freedom of action is curtailed to a degree associated
with formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 440
(1984) (citation and internal quotation marks omitted). Cus-
tody is an objective, totality-of-the-circumstances test:
whether “a reasonable person would have felt he or she was
not at liberty to terminate the interrogation and leave.” Howes
v. Fields, 565 U.S. 499, 509 (2012) (citation and internal brackets
and quotation marks omitted); see also Florida v. Bostick, 501
U.S. 429, 436 (1991). Factors to consider in assessing custody
10 No. 16-1079
“include the location of the questioning, its duration, state-
ments made during the interview, the presence or absence of
physical restraints during the questioning, and the release of
the interviewee at the end of the questioning.” Howes, 565 U.S.
at 509 (citations omitted). Because custody is determined by
an objective standard, the subjective beliefs of the suspect and
police officers are irrelevant. Stansbury v. California, 511 U.S.
318, 323–26 (1994).
The trial court heard testimony from Stechauner and De-
tective Kolatski about the hospital-room interrogation. The
trial court discounted the former’s testimony and credited the
latter’s. 4 According to that testimony, the circumstances of the
hospital interrogation were as follows: The officers arrived at
the request of the treating nurse—not Stechauner—to investi-
gate the shooting and bag of bullets. Stechauner was at the
hospital because he had shot himself and wanted medical at-
tention. The questioning took place in a hospital room (the
record does not indicate the room’s size) over the course of
about ninety minutes, while Stechauner was lying in his hos-
pital bed in a gown and connected to an intravenous drip.
Stechauner appeared awake and lucid, and had already been
treated for the gunshot wound. Stechauner resisted answer-
ing some of the questions about who else had been in the car
when the gun had gone off, but generally answered questions
about where the gun was. There were up to three officers in
the room at a time, and one of them was in full police uniform.
4Stechauner does not argue that the trial court erred in crediting De-
tective Kolatski’s account of the interrogation. See 28 U.S.C. § 2254(e)(1)
(“[A] determination of a factual issue made by a State court shall be pre-
sumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.”).
No. 16-1079 11
Though the officers did not use physical restraints at the hos-
pital, they also did not mention either that Stechauner was not
under arrest or that he was free to end the conversation. After
the questioning, Stechauner walked out on crutches with the
officers and was then placed in handcuffs and into the cruiser.
After hearing this testimony, the trial court concluded, “I
don’t find any factual circumstances which would indicate
that while [Stechauner] was at St. Francis Hospital he was in
custody.” The Stechauner I court affirmed:
The police testified that Stechauner was not in
custody at the hospital, that he was not hand-
cuffed or restrained in any way, and that he was
not considered a suspect at that time. Stec-
hauner contradicted that testimony, claiming he
was handcuffed and believed he was in cus-
tody. In reviewing the trial court’s findings, we
conclude that they are not clearly erroneous.
The testimony of the police supports the trial
court’s findings that Stechauner was not in cus-
tody when he spoke with police at the hospital.
2007 WL 901536, at *3.
On these facts, reasonable jurists could conclude that Stec-
hauner was not in custody at the hospital. Though some of the
interrogation circumstances suggest that Stechauner’s free-
dom of movement was restricted, the duration of the ques-
tioning was relatively short, Stechauner was not placed in
handcuffs or other restraints, and there is no indication of co-
ercion, deception, or use of force on the part of the police. As
the Fourth Circuit noted in assessing a similar hospital-ques-
tioning case, there has been no police custody when a suspect
12 No. 16-1079
“was primarily restrained not by the might of the police, but
by his self-inflicted gunshot wound [and] the medical exigen-
cies it created.” United States v. Jamison, 509 F.3d 623, 632 (4th
Cir. 2007). 5
Stechauner also claims that the Stechauner I court imper-
missibly relied on Detective Kolatski’s subjective belief that
Stechauner had not been in custody. Stechauner is correct that
an officer’s subjective beliefs are irrelevant to the custody
analysis, see Stansbury, 511 U.S. at 323–26. However, the Wis-
consin appellate court does not appear to have relied on such
considerations here. While the state court noted that “[t]he
police testified that Stechauner was not in custody at the hos-
pital … and that he was not considered a suspect at that time,”
2007 WL 901536, at *3, simply mentioning how police officers
testified does not amount to relying on their subjective beliefs.
The officers’ testimonies addressed much more than their re-
spective beliefs and included details about the timing of the
investigation, questions that the officers had asked Stec-
hauner, locations of the interrogations, and many other non-
subjective facts on which the state courts relied in concluding
that Stechauner had not been in custody at the hospital.
Stechauner next argues that he should have received Mi-
randa warnings once he had been placed in the police cruiser.
Thus, Stechauner claims that two of his statements should
have been suppressed: (1) his statement revealing the location
5 Jamison is partly distinguishable: While the defendant in that case
initiated a police investigation by telling officers he had been shot by
someone else, see 409 F.3d at 625, here, Stechauner did not want the police
to be involved. This difference, however, is not dispositive in a totality-of-
the-circumstances analysis.
No. 16-1079 13
of the gun—assuming he, and not his friend, made that state-
ment—and (2) Stechauner’s advice to Detective Kolatski to
use pliers to get the casing out of the shotgun. On this issue,
the Stechauner I court held:
[The trial court] found that the statement as to
the location of the gun was provided after the
confrontation between Stechauner and [his
friend]. The trial court indicated that this state-
ment was not provided as a result of police in-
terrogation or questioning. Further, the trial
court found that the statement Stechauner made
about how to remove the casing was a volun-
tary statement he made after he saw the detec-
tive struggling to remove the casing. This state-
ment, too, was not the product of police interro-
gation. The detective did not ask Stechauner
how to remove the casing; rather, Stechauner,
on his own, shouted out this information to the
officer. Again, these findings are not clearly er-
roneous as the testimony of the police at the
suppression hearing supports the trial court’s
findings.
2007 WL 901536, at *3.
The record indicates that the police did not expressly ques-
tion Stechauner once he was in custody in the cruiser. Fur-
thermore, neither the heated conversation between Stec-
hauner and his friend nor Detective Kolatski’s attempt to re-
move the casing from the shotgun meets the Innis standard
for interrogation. 446 U.S. at 302 (interrogation includes con-
duct that a police officer “should have known w[as] reasonably
likely to elicit an incriminating response”). First, the exchange
14 No. 16-1079
between Stechauner and his friend was not police interroga-
tion because it included no “words or actions on the part of po-
lice officers.” Id. (emphasis added). Second, there is no reason
that a police officer in Detective Kolatski’s position should
have known that trying to take a shell casing from a gun
would be reasonably likely to elicit an incriminating response
from Stechauner. See id. The state courts did not unreasonably
apply Supreme Court precedent in finding that Stechauner
had been in custody but had not been interrogated while in
the police cruiser, or in declining to suppress his statements.
B. Voluntariness
Stechauner also argues that his statements should have
been suppressed because they were given involuntarily. The
Stechauner I court held on this issue:
Stechauner makes various assertions, claiming
he was drowsy, under the influence, and co-
erced by the police during the interrogation.
There is nothing in the record to support Stec-
hauner’s assertions, except his own testimony,
which the trial court found to be incredible. The
record reflects that Stechauner’s statements
were voluntary and were the product of free
and unconstrained will, not due to police pres-
sure.
2007 WL 901536, at *5. Stechauner argues on appeal that his
statements were involuntary because Kolatski had impermis-
sibly promised to help him and because of the medication
Stechauner had received at the hospital.
As an initial matter, respondent-appellee argues that this
Court ought not to consider this issue at all, since, she claims,
No. 16-1079 15
the district court did not grant a certificate of appealability on
the voluntariness question. See Rittenhouse v. Battles, 263 F.3d
689, 693 (7th Cir. 2001) (“In accordance with 28 U.S.C.
§ 2253(c), a habeas petitioner may appeal only those issues for
which a certificate of appealability has been granted.”) (cita-
tion omitted). Stechauner responds that the district court’s
certificate of appealability on the Miranda issue did include
the voluntariness question, entitling him to appeal on this
ground. The certificate of appealability does not specifically
mention voluntariness with respect to the hospital or crusier
statements. 6 Regardless of the scope of the district court’s cer-
tificate of appealability, however, “we … consider requests to
amend a certificate of appealability even when they are pre-
sented in a petitioner’s briefs to this court,” which can be done
“by simply including issues in [the] briefs that were not spec-
ified in the certificate.” Id. (citations and internal quotation
marks omitted). To receive a certificate of appealability, gen-
erally a petitioner must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The admission of a defendant’s involuntarily-made state-
ments at a later criminal proceeding offends due process. Cu-
lombe v. Connecticut, 367 U.S. 568, 602 (1961). “In determining
whether a defendant’s will was overborne in a particular case,
the Court … assesse[s] the totality of all the surrounding cir-
cumstances—both the characteristics of the accused and the
details of the interrogation.” Schneckloth v. Bustamonte, 412
U.S. 218, 226 (1973). However, “coercive police activity is a
6 The order clearly rejected Stechauner’s earlier contention that his plea
was involuntary, though that point was separate from the question of
whether Stechauner’s statements were involuntary.
16 No. 16-1079
necessary predicate to the finding that a confession is not ‘vol-
untary.’” Colorado v. Connelly, 479 U.S. 157, 167 (1986).
First, Stechauner argues that the “narcotic pain medicine
… likely would have rendered Stechauner more susceptible to
coercive interrogation tactics utilized by the officers here
[and] … may have interfered with Stechauner[‘s] free will and
ability to understand questions, potentially rendering any
statements made after he received the drugs … involuntary.”
(emphases added). Yet Stechauner refers to no specific “coer-
cive interrogation tactic” the officers supposedly used in this
case. He does not argue, for example, that the police adminis-
tered the drugs, or that he was given drugs against his will.
Second, speculation about how the narcotics “may have” “po-
tentially” contributed to involuntariness is insufficient to
show a denial of Stechauner’s constitutional rights. Simply
taking pain medication administered by a hospital does not
involve coercive police activity. See Connelly, 479 U.S. at 167.
Next, Stechauner argues that his statements were involun-
tary because, he says, Detective Kolatski impermissibly prom-
ised him leniency in exchange for cooperating in the investi-
gation. Stechauner is correct that a confession is involuntary
if prompted by “direct or implied promises, however slight.”
Shotwell Mfg. Co. v. United States, 371 U.S. 341, 347 (1963)
(quoting Bram v. United States, 168 U.S. 532, 542–43 (1897)).
However, Stechauner misreads the record in making this ar-
gument. During the suppression hearing, Kolatski testified:
A: I informed [Stechauner] that I [Kolatski] was
aware of the fact that when the nurse initially
began treating him that she had discovered a
baggy containing three or four bullets and …
[t]hey could no longer be found. And I told
No. 16-1079 17
[Stechauner] that in order for me to help him out
at all that he needed to tell me the entire truth
including about where the bullets were.
Q: And when you meant help him out, what did
you mean by that?
A: At that point in time as far as I knew he was
shot … . And in order for me to conduct a thor-
ough investigation which somebody may be
able to be prosecuted for shooting him, I needed
the entire truth.
This testimony does not demonstrate that Kolatski was of-
fering Stechauner leniency or making any other promise. At
that time, there was no indication that Stechauner was con-
sidered a suspect of any particular crime for which Detective
Kolatski could offer leniency. Kolatski simply wanted to
know where the bullets were so he could investigate the inci-
dent. Kolatski’s statements did not amount to coercive con-
duct sufficient to have overcome Stechauner’s will. In short,
the hospital interrogation lacked the “necessary predicate” of
coercive police activity required to render Stechauner’s state-
ments involuntary. Connelly, 479 U.S. at 167.
C. Ineffective Assistance
The Supreme Court recently rearticulated the standard for
demonstrating ineffective assistance of counsel:
The Sixth Amendment right to counsel is the
right to the effective assistance of counsel. A de-
fendant who claims to have been denied effec-
tive assistance must show both that counsel per-
formed deficiently and that counsel’s deficient
performance caused him prejudice.
18 No. 16-1079
Strickland’s first prong sets a high bar. … The
lawyer has discharged his constitutional re-
sponsibility so long as his decisions fall within
the wide range of professionally competent as-
sistance. It is only when the lawyer’s errors were
so serious that counsel was not functioning as
the “counsel” guaranteed by the Sixth Amend-
ment that Strickland’s first prong is satisfied.
…
To satisfy Strickland, a litigant must also demon-
strate prejudice—a reasonable probability that,
but for counsel’s unprofessional errors, the re-
sult of the proceeding would have been differ-
ent.
Buck v. Davis, 137 S. Ct. 759, 775–76 (2017) (citations, altera-
tion, and internal quotation marks omitted). On collateral re-
view, this Court does not assess directly whether trial counsel
provided ineffective assistance under Strickland; rather, we
ask “whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Harrington, 562
U.S. at 105.
Stechauner did not argue in his first motion for post-con-
viction relief that his trial counsel had been ineffective at the
suppression hearing. In his second motion, Stechauner ar-
gued that his post-conviction counsel had been ineffective for
having failed to raise trial counsel’s allegedly ineffective per-
formance as a ground for post-conviction relief. The Stec-
hauner II court noted that, while claims not raised in the first
motion for post-conviction relief typically would be barred,
No. 16-1079 19
Ineffective assistance of a postconviction lawyer
may constitute a sufficient reason for a second
postconviction proceeding. When a defendant
claims that a postconviction lawyer was ineffec-
tive by failing to challenge a trial lawyer’s al-
leged ineffectiveness, however, the defendant
must establish that the trial lawyer’s assistance
was, in fact, ineffective.
2010 WL 4945103, at *2 (citations omitted). Stechauner argued
before the state court that his trial counsel had provided inef-
fective assistance by failing to call eight witnesses at the sup-
pression hearing: Stechauner’s mother, the treating nurse and
physician, and several friends. Stechauner says that these wit-
nesses would have corroborated his ultimately-discredited
testimony that he had been intoxicated on the day in question
and that he was in custody at the hospital.
The state court disagreed and concluded that trial counsel
had not been ineffective at the suppression hearing:
Stechauner fails to show how [his mother’s] tes-
timony could have assisted the circuit court to
determine his custodial status in the hospital,
given that [she] had no contact with him while
he was hospitalized. Thus, Stechauner did not
satisfy his burden of showing how [her] testi-
mony would have altered the outcome of the
proceeding.
Stechauner names seven people in addition to
his mother who he claims should have testified
at the suppression hearing, and he faults his
20 No. 16-1079
first trial lawyer for failing to call them as wit-
nesses. He offers no support for his conclusory
assertions that the people he names would have
provided any relevant information about his
custodial status. Therefore, the circuit court
properly rejected the allegations.
2010 WL 4945103, at *4 (footnote, citations, and internal quo-
tation marks omitted). Thus, the Stechauner II court appears to
have denied relief under Strickland because, even assuming
trial counsel’s performance was deficient, there was no preju-
dice from the failure to call the witnesses. To determine
whether the state court reasonably concluded that there was
no “reasonable probability that, but for counsel’s” failure to
call the witnesses, “the result of the proceeding would have
been different,” Buck, 137 S. Ct. at 775, we must revisit the
merits of Stechauner’s Miranda claims.
As mentioned above, for a statement to warrant suppres-
sion at trial, it must have been the product of custodial inter-
rogation and been made before the suspect has waived his or
her Miranda rights. The trial court here declined to suppress
any of Stechauner’s statements, finding that Stechauner had
not been in custody at the hospital and that the cruiser state-
ments had not been the product of police interrogation but
rather had been volunteered.
It is undisputed that the questioning in the hospital room
constituted police interrogation under Miranda. Thus, to have
demonstrated prejudice in state court, Stechauner needed to
show only that the missing testimony likely would have
changed the custody analysis. However, under current Su-
preme Court precedent, the Stechauner II court was not unrea-
sonable in determining that the absence of Stechauner’s
No. 16-1079 21
mother’s and friends’ testimonies did not prejudice Stec-
hauner. First, Stechauner does not argue that any of these pro-
posed witnesses were in the hospital room or had any
knowledge of the circumstances of the interrogation. Nor
does he allege that he was aware of his mother’s attempts to
see him at the hospital at the time he was speaking with the
police officers. Cf. Yarborough v. Alvarado, 541 U.S. 652, 665
(2004) (“Counsel for Alvarado alleges that Alvarado’s parents
asked to be present at the interview but were rebuffed, a fact
that—if known to Alvarado—might reasonably have led some-
one in Alvarado’s position to feel more restricted than other-
wise.”) (emphasis added). Thus, the witnesses’ testimonies
would not have been helpful in determining custody under
the objective standard articulated above. Second, assuming
Stechauner’s friends would have testified as he claims—that
he had used several substances earlier in the day—this testi-
mony likely would not have changed the state court’s custody
analysis. Stechauner did not and does not argue that the po-
lice gave him any intoxicating substances or that they know-
ingly took advantage of Stechauner’s allegedly intoxicated
state. Prior voluntary intoxication does not bear on the objec-
tive custody analysis and so would not have created a reason-
able probability of a different outcome.
This leaves us with the purported testimonies of the nurse
and doctor. Stechauner claims that these individuals would
have testified that he had been handcuffed to the hospital bed.
However, as the state court noted, Stechauner has never intro-
duced, at any stage of the proceedings of this case, any indi-
cation that these two proposed witnesses would have testified
in the manner he claims. Without more, Stechauner’s asser-
tions about what these witnesses said are merely conclusory,
and as such are insufficient to demonstrate prejudice or to
22 No. 16-1079
show that Stechauner actually was in custody in the hospital.
Thus, the Stechauner II court was not unreasonable in deter-
mining that Stechauner suffered no prejudice from these two
witnesses’ absence from the suppression hearing.
Stechauner next argues that trial counsel was ineffective
for not introducing the hospital record at that hearing. How-
ever, again, Stechauner cannot show prejudice from this omis-
sion. He claims that “[t]he fact that the hospital—an objective
third-party—determined that Stechauner was in police cus-
tody is compelling evidence that a reasonable person would
have believed Stechauner was not free to leave.” Even setting
aside that hospital staff do not make legal determinations,
Stechauner also misreads the record on this point. In fact, the
hospital report states: “Patient will be discharged in police cus-
tody,” and “[p]atient was discharged in police custody in
good condition.” (emphasis added). These statements, if true,
suggest only that hospital staff believed Stechauner had been
in custody upon discharge from the hospital—a fact at all
times conceded by respondent-appellee—and not that he had
been in custody while at the hospital. The hospital record pro-
vides no help to Stechauner’s prejudice argument.
Stechauner also argues that the hospital record indicates
that he had been under the influence of drugs during treat-
ment for his gunshot wound. As an initial matter, he cites to
no authority for the proposition that voluntarily taking drugs
impacts a Miranda custody analysis. Even if such facts were
pertinent to the custody question, the document does not sup-
port Stechauner’s argument that he had taken Vicodin prior
to the interrogation; rather, the record states: “Patient dis-
charged with prescription(s) for Keflex Vicodin.” This does
not indicate that he had taken Vicodin prior to the hospital-
No. 16-1079 23
room questioning, and so would not have likely altered the
custody analysis. In his reply brief, Stechauner mentions that
the hospital record reflects that he had been given Dilaudid
intravenously around 6:30 PM, several minutes before the of-
ficers had arrived, and asserts that this drug affected the vol-
untariness of his hospital statements. Arguments raised for
the first time in a reply brief are waived. Darif v. Holder, 739
F.3d 329, 336 (7th Cir. 2014) (citation omitted).
In sum, Stechauner has not offered any new information
that likely would have altered the state court’s Miranda analy-
sis. As a result, the Stechauner II court reasonably applied
Strickland in concluding that Stechauner suffered no prejudice
as a result of the omitted witness testimony and hospital rec-
ord. Because Stechauner cannot show prejudice, we need not
determine whether his trial counsel’s performance was defi-
cient.
D. Evidentiary Hearing
Lastly, Stechauner argues that the district court abused its
discretion when it denied his request for an evidentiary hear-
ing. See Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). Stec-
hauner wanted to call several witnesses, including Detective
Kolatski and Stechauner’s state-court counsel. As discussed
in Pinholster, “review under § 2254(d)(1) is limited to the rec-
ord that was before the state court that adjudicated the claim
on the merits.” Id. at 181. In other words, no federal eviden-
tiary hearing is permitted when the state court has already
addressed the issue; rather, “the record under review is lim-
ited to … the record before the state court.” Id. at 182.
Pinholster bars Stechauner’s request, since his claims were
adjudicated on the merits by the Stechauner I and Stechauner II
24 No. 16-1079
courts. However, he now argues that under our decision in
Mosley v. Atchison, 689 F.3d 838 (7th Cir. 2012), the district
court’s denial of an evidentiary hearing constituted an abuse
of discretion. However, Mosley did not alter—and could not
have altered—the holding of Pinholster. We noted in Mosley
that “[t]he district court had to make [the ineffective-assis-
tance] decision based on the record before the state courts,”
id. at 841 (citing Pinholster, 563 U.S. at 181; 28 U.S.C. § 2254(d)),
and reasoned “If § 2254(d) does not bar relief, then an eviden-
tiary hearing may be needed,” id. at 844 (citing Pinholster, 563
U.S. at 205–06 (Breyer, J., concurring in part and dissenting in
part)) (emphasis added). In Mosley, the district court held, and
this Court agreed, that § 2254(d) did not bar relief, and so fur-
ther hearings into the veracity of certain affidavits were
needed before granting the habeas petition. Here, the district
court clearly held that § 2254(d) barred relief, and therefore
no additional hearing was permitted. We agree and likewise
conclude that a straightforward application of Pinholster pre-
cludes an additional evidentiary hearing in this case.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the
district court.