Harvey C. Banks v. Gary R. McCaughtry Warden, Waupun Correctional Institution

106 F.3d 403

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Harvey C. BANKS, Petitioner-Appellant,
v.
Gary R. McCAUGHTRY, Warden, Waupun Correctional Institution,
Respondent-Appellee.

No. 95-3245.

United States Court of Appeals, Seventh Circuit.

Submitted Dec. 12, 1996.*
Decided Dec. 31, 1996.

Before COFFEY, EASTERBROOK and KANNE, Circuit Judges.

ORDER

1

The judgment is affirmed for the reasons in the district court's opinion, with two emendations:

2

1. The district court's conclusion that Banks forfeited an opportunity to obtain federal review of his claims by failing to ask the Supreme Court of Wisconsin to review them is questionable after Hogan v. McBride, 74 F.3d 144 (7th Cir.1996), which was decided after the district court's decision. But because the district court addressed all of the claims on the merits, the alternative ground of forfeiture is not important to the judgment.

3

2. After the district court released its opinion, the Supreme Court held in Thompson v. Keohane, 116 S.Ct. 457 (1995), that whether "custody" exists, for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), is a question of law on which federal courts may express independent views. This change in law, and any potential further change in the standards of federal review under the Antiterrorism and Effective Death Penalty Act, see Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), again does not matter, because de novo review of the custody question leads to the same conclusion the district court reached.

4

AFFIRMED.

*

After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f)