Nicolas Subdiaz-Osorio v. Robert Humphreys ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐1061
NICOLAS SUBDIAZ‐OSORIO,
Petitioner‐Appellant,
v.
ROBERT HUMPHREYS,
Respondent‐Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 14‐cv‐1227 — Pamela Pepper, Chief Judge.
____________________
ARGUED NOVEMBER 7, 2019 — DECIDED JANUARY 9, 2020
____________________
Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Nicolas Subdiaz‐Osorio stabbed his
brother to death during a drunken fight. He attempted to flee
the country but was stopped in Arkansas while driving to
Mexico. Officers interrogated Subdiaz‐Osorio in Arkansas
and during the interview, after discussing the extradition pro‐
cess, Subdiaz‐Osorio asked in Spanish, “How can I do to get
an attorney here because I don’t have enough to afford for
2 No. 18‐1061
one?” The state courts were tasked with deciphering what
“here” meant.
The state argued that the question referred to the extradi‐
tion hearing “here” in Arkansas; Subdiaz‐Osorio argued this
was an unequivocal invocation of his right to the presence of
counsel “here” in the interrogation room. The state trial court
found, and the Wisconsin Supreme Court affirmed, that Sub‐
diaz‐Osorio did not unequivocally invoke his Fifth Amend‐
ment right to counsel.
The only issue in this habeas corpus appeal is whether that
finding was contrary to or based on an unreasonable applica‐
tion of established Supreme Court precedent. See 28 U.S.C.
§ 2254(d). Our review is deferential and because the Wiscon‐
sin Supreme Court’s finding was reasonable, we affirm the
district court’s denial of Subdiaz‐Osorio’s petition for writ of
habeas corpus.
I. Background
The relevant facts in this case are largely undisputed.1 The
details of the underlying murder and Subdiaz‐Osorio’s at‐
tempted flight do not bear on the issue before us, but we first
recount those facts necessary to provide context. We then re‐
view the interrogation and the state court proceedings, which
are the focus of this appeal.
1 The facts are taken from the Wisconsin Supreme Court’s lead opin‐
ion. See State v. Subdiaz‐Osorio, 2014 WI 87, 849 N.W.2d 748 (Wis. July 24,
2014). The Wisconsin Supreme Court’s findings are “presumed to be cor‐
rect” and Subdiaz‐Osorio has not attempted to rebut that presumption.
See 28 U.S.C. § 2254(e)(1).
No. 18‐1061 3
A. The stabbing
Nicolas Subdiaz‐Osorio lived with his brother, Marcos
Antonio Ojeda‐Rodriguez, in a trailer in Kenosha, Wisconsin.
The brothers also worked for the same employer and a few
weeks before the incident, their employer laid off Ojeda‐Ro‐
driguez but retained Subdiaz‐Osorio. This caused tension and
arguments between the brothers.
The tension came to a head on the night of February 7,
2009, and carried over into the early morning hours of Febru‐
ary 8. Late in the evening on February 7, Subdiaz‐Osorio was
in his bedroom with a friend and co‐worker, Lanita Mintz. At
some point, Ojeda‐Rodriguez, who was either home or came
home, tried to force his way into Subdiaz‐Osorio’s room. Sub‐
diaz‐Osorio tried to keep his brother out, but Ojeda‐Rodri‐
guez—a former boxer—was heavier and stronger than Sub‐
diaz‐Osorio and was able to overpower Subdiaz‐Osorio and
force his way into the bedroom.
When Ojeda‐Rodriguez entered, he and Subdiaz‐Osorio
began arguing in Spanish. Mintz speaks little Spanish and
could not understand what the brothers were saying, but she
could tell both had been drinking. Things escalated quickly.
The verbal argument lasted less than two minutes and ended
with Ojeda‐Rodriguez punching Subdiaz‐Osorio in the face.
The punch knocked Subdiaz‐Osorio back into his dresser and
to the ground. Subdiaz‐Osorio got up and retrieved two
knives from his closet.2 Ojeda‐Rodriguez said something
2Subdiaz‐Osorio did point out that there was some conflicting testi‐
mony in the trial court regarding the knives. Subdiaz‐Osorio initially told
investigators that Ojeda‐Rodriguez brought a knife into the bedroom with
him and that Subdiaz‐Osorio disarmed him. Subdiaz‐Osorio later told
4 No. 18‐1061
aggressive in Spanish to his brother, who was now armed
with a knife in each hand, and pounded his chest. So Subdiaz‐
Osorio stabbed him in the chest. Ojeda‐Rodriguez was un‐
fazed, perhaps fueled by a combination of alcohol and adren‐
aline, and continued to pound his chest. Subdiaz‐Osorio then
stabbed his brother in the face, just under the left eye. The
knife blade pierced Ojeda‐Rodriguez’s left eye socket and en‐
tered the right hemisphere of his brain. Ojeda‐Rodriguez fell
back into the wall and Subdiaz‐Osorio began kicking and
punching him in the face. Subdiaz‐Osorio eventually stopped
beating his brother and left the room.
The brothers’ roommates came home shortly thereafter,
saw Ojeda‐Rodriguez, and helped carry him to his own bed.
Mintz then left, but she remembered that Ojeda‐Rodriguez
was moving and speaking when she departed. Apparently no
one thought Ojeda‐Rodriguez’s injuries were life‐threatening.
One roommate, though, did suggest calling the police. Sub‐
diaz‐Osorio refused because, as a shock to no one, he did not
want to be arrested. Instead, Subdiaz‐Osorio called his girl‐
friend—who was not Mintz—to come over and help take care
of Ojeda‐Rodriguez. She did and then they both left and went
to her home. Despite the girlfriend’s best efforts, the room‐
mates found Ojeda‐Rodriguez dead the next morning. At 9:27
a.m. on February 8, 2009, the roommates reported the stab‐
bing to the Kenosha Safety Building.
Police officers and medical personnel arrived and found
Ojeda‐Rodriguez’s body beaten and battered and with several
stab wounds. They confirmed he was dead. The medical
investigators that Ojeda‐Rodriguez never had a knife. This inconsistency
is immaterial to our discussion.
No. 18‐1061 5
examiner determined that the fatal stab occurred when Sub‐
diaz‐Osorio stabbed Ojeda‐Rodriguez under his left eye,
causing the blade to penetrate Ojeda‐Rodriguez’s brain three
to four inches.
B. The search for Subdiaz‐Osorio
Detectives quickly began their investigation and several
Spanish‐speaking officers interviewed the roommates and
Subdiaz‐Osorio’s girlfriend. The girlfriend told officers that
she let Subdiaz‐Osorio borrow her car and gave them the li‐
cense plate number along with Subdiaz‐Osorio’s cell phone
number. The officers also learned that Subdiaz‐Osorio was in
the country illegally and had family in Mexico. They surmised
that Subdiaz‐Osorio had fled and was driving to Mexico. The
Kenosha police put a “temporary want” on Subdiaz‐Osorio
into the Crime Information Bureau, a state system, and Na‐
tional Crime Information Center, a national system, that to‐
gether notified all law enforcement agencies in the country
about the temporary want for Subdiaz‐Osorio.
But because the notification system for the temporary
want was old technology, the Kenosha police also wanted to
track Subdiaz‐Osorio’s cell phone location and contacted the
Wisconsin Department of Justice (WDOJ). That same after‐
noon, February 8, the WDOJ filled out and submitted a “Man‐
datory Information for Exigent Circumstances Requests”
form to Sprint, Subdiaz‐Osorio’s cell phone provider. Later in
the afternoon the WDOJ received tracking information for
Subdiaz‐Osorio from Sprint. They did not have a warrant.
Subdiaz‐Osorio was tracked to Arkansas, driving south on
I‐55. The Kenosha police alerted Arkansas police, and around
6:11 p.m., still February 8, an Arkansas patrol officer pulled
6 No. 18‐1061
Subdiaz‐Osorio over and took him into custody. The Arkan‐
sas police did not interrogate Subdiaz‐Osorio that evening.
C. The interrogation
The next morning, on February 9, Detective David May
and Detective Gerald Kaiser, the lead detectives, and Officer
Pablo Torres, who is fluent in Spanish, travelled to Arkansas.
Later that same day, Detective May and Officer Torres inter‐
viewed Subdiaz‐Osorio in the Mississippi County Jail in Lux‐
ora, Arkansas.
Subdiaz‐Osorio told the officers that he preferred they
conduct the interview in Spanish, so Officer Torres conducted
the interview in Spanish. There is no indication, and Subdiaz‐
Osorio does not argue, that either Subdiaz‐Osorio or Officer
Torres had any trouble understanding each other.
The officers videotaped the interview, portions of which
were later played at the suppression hearing. During that
hearing, a court interpreter contemporaneously translated the
videotaped interview from Spanish to English.3 The video be‐
gan with Officer Torres administering the Miranda warning to
Subdiaz‐Osorio. After Subdiaz‐Osorio acknowledged that he
understood his rights, Officer Torres asked, “I would like to
ask you a few questions what you recall what happened yes‐
terday. Okay. Would you like to answer the question that I
will ask you. Sir?” (All grammatical errors throughout appear
in the original translation.) Subdiaz‐Osorio responded,
3 Importantly, there is no separate written and translated transcript of
the interview. The only source of the verbatim conversation between Sub‐
diaz‐Osorio and Officer Torres in the record comes from the transcript of
the suppression hearing, where the court reporter is transcribing the in‐
terpreter’s realtime translation.
No. 18‐1061 7
“Depending on what type of – Depending on the question,
right?” Officer Torres then asked Subdiaz‐Osorio to sign a
written Miranda waiver form titled “Waiver of Constitutional
Rights,” which was also written in Spanish.
There was then an inaudible statement by Detective May,
followed by this critical dialogue:
Subdiaz‐Osorio: Are you going to I understand
move me to Kenosha.
Officer Torres: We aren’t going to take you back
to Kenosha. What happens is that
you have to appear in front of a
judge. And after you appear in
front of a judge here in Arkansas
then they will find out if there is
enough reason to send you back to
Kenosha. But we are not going to
do that right now. We are not go‐
ing to know that right now.
Subdiaz‐Osorio: How can I do to get an attorney here
because I don’t have enough to afford
for one.
Officer Torres: If you need an attorney‐‐by the
time you’re going to appear in the
court, the state of Arkansas will
get an attorney for you.
We emphasized the key statement by Subdiaz‐Osorio. For
clarification, counsel then requested the tape be rewound so
that the interpreter could repeat what Subdiaz‐Osorio said re‐
garding an attorney. Unfortunately, the “clarification” is not
particularly helpful here because the interpreter somewhat
8 No. 18‐1061
stumbles over it, at least as it now appears in the written hear‐
ing transcript. The interpreter translated Subdiaz‐Osorio’s
statement twice more when the tape was rewound as follows:
“To get an attorney here because I don’t have enough
to pay for one.”
“And to get an attorney and to get an attorney of—
from here because I don’t have enough to pay, or I
don’t have to pay.”
The original translation by the court interpreter, appearing in
the full dialogue above, is the version that all parties, and the
courts, used. Thus, we will too.
The interview continued after that for about an hour. The
Wisconsin Supreme Court found that Subdiaz‐Osorio was
“very cooperative throughout the interview.” Subdiaz‐Osorio,
2014 WI 87, ¶ 28.
D. Trial court proceedings
Subdiaz‐Osorio filed two pretrial motions to suppress all
statements and evidence that the police obtained after his ar‐
rest. He primarily raised two grounds. First, he argued that
the warrantless search of his cell phone’s location data vio‐
lated his Fourth Amendment rights. Second, Subdiaz‐Osorio
argued that Officer Torres failed to properly inform him of his
Miranda rights. The trial court denied both motions.
On the Fourth Amendment issue, the court found that
“tracking a phone on a public roadway is not a violation of
the Fourth Amendment because there is no legitimate expec‐
tation of privacy on public roadways.” Subdiaz‐Osorio,
2014 WI 87, ¶ 33. “Alternatively, the court determined that
No. 18‐1061 9
there were exigent circumstances because an alleged mur‐
derer was fleeing and was unpredictable.” Id.
As to the post‐arrest statements, the trial court concluded
that Officer Torres did not fail to properly inform Subdiaz‐
Osorio or honor his Miranda rights because “Subdiaz‐Osorio’s
question about an attorney was not a request to have an attor‐
ney with him during the interview; rather, Subdiaz‐Osorio
was asking about how he could obtain an attorney for the ex‐
tradition hearing.” Id.
Subdiaz‐Osorio then pleaded guilty to an amended charge
of first‐degree reckless homicide by use of a dangerous
weapon. The court accepted the plea and sentenced Subdiaz‐
Osorio to twenty years’ imprisonment. Subdiaz‐Osorio ap‐
pealed the conviction and the denial of his suppression mo‐
tions.
E. Appeal to the Wisconsin Court of Appeals
In an unpublished opinion, the Wisconsin Court of Ap‐
peals affirmed Subdiaz‐Osorio’s judgment of conviction. State
v. Subdiaz‐Osorio, 2013 WI App 1, 824 N.W.2d 927 (Wis. Ct.
App. Nov. 15, 2012) (per curiam). The appellate court as‐
sumed for the purposes of the appeal, without deciding, that
the evidence should have been suppressed and applied a
harmless error analysis. The court then considered and re‐
jected Subdiaz‐Osorio’s two suggested possible lines of de‐
fense that he might have pursued had the evidence been sup‐
pressed. The court of appeals concluded:
In addition to the lack of persuasive value of the un‐
suppressed evidence, we note that the State’s case
for utter disregard, while perhaps not unbeatable,
was strong, based on an eyewitness account. And
10 No. 18‐1061
we also note that Subdiaz‐Osorio obtained a signifi‐
cant benefit from the reduction in charge from first‐
degree intentional homicide to reckless homicide.
Id. ¶ 12. Any error was harmless and the court was “satisfied
beyond a reasonable doubt that Subdiaz‐Osorio would have
accepted the same plea deal even if the suppression motion
had been granted.” Id.
Subdiaz‐Osorio petitioned the Wisconsin Supreme Court
for review, which the court granted.
F. The Wisconsin Supreme Court’s decision
The Wisconsin Supreme Court confronted two issues for
review. The first involved “the increasingly busy intersection
between Fourth Amendment privacy considerations and the
constant advancement of electronic technology” and required
the court to “determine whether law enforcement officers
may contact a homicide suspect’s cell phone provider to ob‐
tain the suspect’s cell phone location information without first
securing a court order based on probable cause.” Subdiaz‐
Osorio, 2014 WI 87, ¶ 2. Second, implicating the Fifth Amend‐
ment, “whether the suspect effectively invoked his right to
counsel during an interrogation when he asked how he could
get an attorney rather than affirmatively requesting the pres‐
ence of counsel.” Id.
The answers to these questions fractured the court, in par‐
ticular with respect to the Fourth Amendment issue, and re‐
sulted in six separate opinions. Justice Prosser authored the
lead opinion,4 which affirmed the decision of the court of
4
According to the Wisconsin Supreme Court’s Internal Operating
Procedures, “[i]f … the opinion originally circulated as the majority
No. 18‐1061 11
appeals. Justice Bradley and Justice Crooks concurred solely
in the mandate and each filed a separate concurrence. Justice
Roggensack concurred solely in the mandate and filed a con‐
currence that Justice Ziegler joined. Justice Ziegler, though,
also filed her own concurrence, which Justice Roggensack and
Justice Gableman joined. Finally, Justice Abrahamson dis‐
sented.
The Wisconsin Supreme Court spilled the overwhelming
majority of ink on the Fourth Amendment issue. Justice
Prosser’s lead opinion, for example, spent only six paragraphs
on the Fifth Amendment issue out of the forty‐nine total par‐
agraphs in the discussion section. Justice Crooks, Justice
Roggensack, and Justice Ziegler all wrote separately to ex‐
press concerns with the lead opinion’s broad pronounce‐
ments regarding the Fourth Amendment, but all agreed with
the Fifth Amendment analysis and said nothing more on that
issue. Justice Bradley’s concurrence agreed with the dissent
that the trial court should have granted the motions to sup‐
press, but she agreed with the court of appeals that the error
was harmless. Justice Bradley’s concurrence therefore fo‐
cused on the harmless error analysis. Justice Abrahamson, in
her dissent, was the only justice to separately address the Fifth
Amendment issue.
Because the only issue before us in this habeas review is
Subdiaz‐Osorio’s invocation of his Fifth Amendment right to
counsel, we limit our summary to the Wisconsin Supreme
Court’s opinion on that issue.
opinion does not garner the vote of a majority of the court, it shall be re‐
ferred to in separate writings as the ‘lead opinion.’” Wis. S. CT. IOP
§ III.G.4.
12 No. 18‐1061
Five justices agreed that Subdiaz‐Osorio did not unequiv‐
ocally invoke his right to counsel when he asked about how
he could get an attorney. See Subdiaz‐Osorio, 2014 WI 87, ¶ 11
& n.5. The opinion concluded that Subdiaz‐Osorio’s question
was equivocal, and therefore Officer Torres did not violate
Subdiaz‐Osorio’s Fifth Amendment rights by continuing to
question him. Id. ¶ 82. Specifically, from the translation at the
suppression hearing, “it appear[ed] as though Subdiaz‐
Osorio was asking about the process of obtaining an attorney
rather than asking for counsel to be present during the inter‐
view.” Id. ¶ 86. The context is “important and a vital element
in the totality of the circumstances.” Id. ¶ 87. Immediately
preceding Subdiaz‐Osorio’s question, Officer Torres had just
explained the extradition process and told Subdiaz‐Osorio
that he would have to appear before a judge in Arkansas. “It
was reasonable for Officer Torres to assume Subdiaz‐Osorio
was asking about how he could get an attorney for his extra‐
dition hearing, especially since Subdiaz‐Osorio continued to
answer questions and remained cooperative for the rest of the
interview.” Id. It recognized that “case law is clear that it is
not enough for a suspect to say something that the inter‐
viewer might interpret as an invocation of the right to counsel.
The invocation of that right must be unequivocal.” Id. Justice
Prosser concluded, “In this case it was not.” Id.
The dissent viewed Subdiaz‐Osorio’s statement differ‐
ently, focusing on his use of the word “here” in the question.
Id. ¶ 213 (Abrahamson, J., dissenting). An ordinary, reasona‐
ble person would understand Subdiaz‐Osorio to be asking
how to get an attorney “at that place and time”—i.e., the in‐
terrogation room. Id. ¶ 214. The dissent also read the tran‐
script to indicate that Officer Torres had ended the subject of
the extradition hearing because he said “we are not going to
No. 18‐1061 13
do that right now. We are not going to know that right now.”
Id. ¶ 217. Thus, “here” could only reasonably refer to the pre‐
sent time in the interrogation room, per the dissent. Id. ¶ 218.
G. Federal habeas proceedings
Having exhausted his state court remedies, Subdiaz‐
Osorio turned to the federal courts for habeas relief. His peti‐
tion for a writ of habeas corpus raised the same Fourth and
Fifth Amendment challenges to his conviction.
The district court held that collateral review of Subdiaz‐
Osorio’s Fourth Amendment claim was foreclosed because,
applying Stone v. Powell, 428 U.S. 465 (1976), Subdiaz‐Osorio
had a full and fair opportunity to litigate the claim in state
court at all three court levels. On the Fifth Amendment chal‐
lenge, the district court found that the Wisconsin Supreme
Court did not unreasonably apply clearly established federal
law and did not make an unreasonable determination of the
facts given the evidence, see 28 U.S.C. § 2254(d), when it held
that a reasonable officer could have understood Subdiaz‐
Osorio to be asking how to get a lawyer to represent him dur‐
ing the extradition process. The district court denied the peti‐
tion and also declined to issue a certificate of appealability.
Subdiaz‐Osorio filed a notice of appeal and a request for a
certificate of appealability, and we granted him a certificate of
appealability with respect to his Fifth Amendment challenge
only. We denied his subsequent motion to expand the certifi‐
cate to include a Fourth Amendment claim.
II. Discussion
“We review the district court’s decision de novo, but our
inquiry is an otherwise narrow one.” Schmidt v. Foster,
911 F.3d 469, 476 (7th Cir. 2018) (en banc). Under the
14 No. 18‐1061
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), habeas relief should only be granted if a state court
adjudication on the merits (1) “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) “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. §§ 2254(d)(1), (2).
“[W]hen the last state court to decide a prisoner’s federal
claim explains its decision on the merits in a reasoned opin‐
ion,” this presents a “straightforward inquiry” for the federal
habeas court. Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). The
Wisconsin Supreme Court was the last reasoned‐decision on
the merits, and thus we will focus on that decision and
“simply review[] the specific reasons given by the state court
and defer[] to those reasons if they are reasonable.” Id. “A
state‐court decision can be a reasonable application of Su‐
preme Court precedent even if, in our judgment, it is an in‐
correct application.” Schmidt, 911 F.3d at 477. “A state‐court
decision can be a reasonable application even if the result is
clearly erroneous.” Id. And a state‐court decision can be rea‐
sonable even if the petitioner presents “a strong case for re‐
lief.” Harrington v. Richter, 562 U.S. 86, 102 (2011). Only if the
state prisoner shows that “the state court’s ruling on the claim
being presented in federal court was so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fairminded disa‐
greement.” Id. at 103. “If this standard is difficult to meet, that
is because it was meant to be.” Id. at 102.
As we have recently said, federal habeas relief from state
convictions is “reserved for those relatively uncommon cases
No. 18‐1061 15
in which state courts veer well outside the channels of reason‐
able decision–making about federal constitutional claims.”
Dassey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc).
Federal habeas relief is not unheard of, but it is “rare.” Id.
In our narrow review, we cannot say that the Wisconsin
Supreme Court’s decision was an objectively unreasonable
application of controlling United States Supreme Court law.
A. The Fifth Amendment’s right to counsel
We begin with the relevant clearly established law, as set
forth by the Supreme Court. See 28 U.S.C. § 2254(d)(1). The
Fifth Amendment prohibits compelled self‐incrimination.
U.S. Const. amend. V. This privilege is applied to state crimi‐
nal defendants through the due process clause of the Four‐
teenth Amendment. See Dickerson v. United States, 530 U.S.
428, 432 (2000). The Court reinforced the import of the funda‐
mental right against self‐incrimination in Miranda, which held
that “when an individual is taken into custody or otherwise
deprived of his freedom by the authorities in any significant
way and is subjected to questioning,” certain procedural safe‐
guards must be employed. Miranda v. Arizona, 384 U.S. 436,
478 (1966). One such safeguard is that law enforcement must
warn him of his right to the presence of counsel during any
questioning. Id. at 479. “If the individual states that he wants
an attorney, the interrogation must cease until an attorney is
present.” Id. at 474.
In Edwards and its progeny, the Supreme Court estab‐
lished a brightline rule that when an accused invokes his or
her right to counsel, all further questioning must cease. Ed‐
wards v. Arizona, 451 U.S. 477, 484–85 (1981). “[W]hether the
accused actually invoked his right to counsel,” Smith v. Illinois,
16 No. 18‐1061
469 U.S. 91, 95 (1984) (per curiam) (emphasis added), is an ob‐
jective inquiry, Davis v. United States, 512 U.S. 452, 458–59
(1994). The suspect “must unambiguously request counsel.”
Davis, 512 U.S. at 459. Importantly, although the suspect
“need not speak with the discrimination of an Oxford don,”
the invocation must be “sufficiently clear[]” such “that a rea‐
sonable police officer in the circumstances would understand
the statement to be a request for an attorney.” Id. “But if a sus‐
pect makes a reference to an attorney that is ambiguous or
equivocal in that a reasonable officer in light of the circum‐
stances would have understood only that the suspect might be
invoking the right to counsel, our precedents do not require
the cessation of questioning.” Id.
With these legal principles in mind, we turn to the case
before us. Subdiaz‐Osorio claims that the Wisconsin Supreme
Court defied this clearly established body of federal law when
it found that Subdiaz‐Osorio did not invoke his Fifth Amend‐
ment right to counsel. He argues that the state court, in doing
so, committed two legal errors: it ignored the plain meaning
of Subdiaz‐Osorio’s request and it inappropriately relied on
post‐request context to cast retrospective doubt on the invo‐
cation. Subdiaz‐Osorio also argues that the state court made
unreasonable factual determinations. We take each argument
in order.5
5 Subdiaz‐Osorio also argues that the Wisconsin Supreme Court’s con‐
stitutional errors were not harmless. Because we find that the state court’s
decision was a reasonable application of established federal law, we do
not reach the harmless error analysis.
No. 18‐1061 17
B. Subdiaz‐Osorio’s request for counsel
Subdiaz‐Osorio’s question was translated from Spanish as
“[h]ow can I do to get an attorney here because I don’t have
enough to afford for one.” The Wisconsin Supreme Court
found that “it appears as though Subdiaz‐Osorio was asking
about the process of obtaining an attorney rather than asking
for counsel to be present during the interview” and therefore
it was “reasonable for Officer Torres to assume Subdiaz‐
Osorio was asking about how he could get an attorney for his
extradition hearing.” Subdiaz‐Osorio, 2014 WI 87, ¶¶ 86–87.
The state court did as it must, following established federal
law, and looked to whether “a reasonable police officer in the
circumstances would understand the statement to be a re‐
quest for an attorney.” Davis, 512 U.S. at 459. The court did
not require Subdiaz‐Osorio to speak perfect English or use
any magic words; it only required an unambiguous assertion
of the right to counsel. See id.; United States v. Lee, 413 F.3d 622,
625 (7th Cir. 2005). Subdiaz‐Osorio’s request did not have the
“clear” meaning he ascribes to it.
Subdiaz‐Osorio delicately parses his statement to try to
show that he unambiguously invoked his right to counsel. He
specifically identifies two elements: his use of the word
“here” and his use of the present tense “can.” According to
Subdiaz‐Osorio, the “here” refers to the interrogation room
and the present tense indicates he wanted an attorney now.
Viewed in isolation, Subdiaz‐Osorio’s argument may have
some appeal. But the law did not compel the Wisconsin Su‐
preme Court to view the statement in a vacuum. “The context
in which Subdiaz‐Osorio’s question arose is important ….”
Subdiaz‐Osorio, 2014 WI 87, ¶ 87; see Davis, 512 U.S. at 459. Im‐
mediately preceding Subdiaz‐Osorio’s reference to an
18 No. 18‐1061
attorney, he and Officer Torres were discussing the extradi‐
tion process. Subdiaz‐Osorio asked if the officers were going
to “move [him] to Kenosha,” to which Officer Torres ex‐
plained that Subdiaz‐Osorio first “[has] to appear in front of
a judge” and “after [he] appear[s] in front of a judge here in
Arkansas then they will find out if there is enough reason to
send [him] back to Kenosha.” Notably, Officer Torres refers
to “here in Arkansas” right before Subdiaz‐Osorio asks how to
get an attorney “here.”
But, Subdiaz‐Osorio insists, the “here” must mean the
physical interrogation room because Officer Torres ended the
discussion about extradition and changed subjects when he
told Subdiaz‐Osorio “we are not going to do that right now.
We are not going to know that right now.” Justice Abrahamson
in her dissent saw it the same way: “The officer made clear
that the extradition hearing was no longer the subject of the
conversation.” Subdiaz‐Osorio, 2014 WI 87, ¶ 217 (Abraham‐
son, J., dissenting). We do not need to definitively resolve
whether both men were talking about “here” in Arkansas (as
opposed to “there” in Kenosha) or “here” in the physical in‐
terrogation room. It suffices to say that even under Subdiaz‐
Osorio’s view, Officer Torres, in light of the circumstances,
reasonably could have at most “understood only that the sus‐
pect might be invoking the right to counsel” and he would not
have been required to cease questioning. Davis, 512 U.S. at
459; id. at 460 (“[W]hen the officers conducting the question‐
ing reasonably do not know whether or not the suspect wants
a lawyer,” there is no Fifth Amendment violation.). We can‐
not say that the state court’s conclusion was so erroneous to
be “beyond any possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103.
No. 18‐1061 19
We find Subdiaz‐Osorio’s use of the present tense unper‐
suasive given the circumstances and context of the statement.
Subdiaz‐Osorio contends that his verb choice—by asking
“how can I” instead of “how will I”—made clear that he
wanted an attorney during the interrogation and not at some
point in the future. But Subdiaz‐Osorio was asking about the
process of obtaining an attorney. It is not unreasonable to
phrase the question about the process in the present tense, re‐
gardless of whether it is for a present event or future event.
And, more importantly, it certainly is not unreasonable, as the
Wisconsin Supreme Court concluded, for an officer in Officer
Torres’s position to understand the question in this manner in
the moment.
Though we are cognizant that courts must “give a broad,
rather than a narrow, interpretation to a defendant’s request
for counsel,” Connecticut v. Barrett, 479 U.S. 523, 529 (1987)
(quoting Michigan v. Jackson, 475 U.S. 625, 633 (1986)), this
does not give us free rein to construe “an ambiguous or equiv‐
ocal reference to an attorney” as a clear invocation of the right
to counsel when a reasonable officer in the circumstances
might not have understood it as such, Davis, 512 U.S. at 459.
The broad “scope” the dissent attempts to give Subdiaz‐
Osorio’s words ignores “the context in which they were spo‐
ken.” United States v. Peters, 435 F.3d 746, 751 (7th Cir. 2006);
Lord v. Duckworth, 29 F.3d 1216, 1221 (7th Cir. 1994) (“The con‐
text in which Lord made reference to a lawyer also supports
the conclusion that any request for counsel was ambiguous,
at best.”). Not every “ambiguous or equivocal reference to an
attorney” is a valid request for counsel. Davis, 512 U.S. at 459.
The law requires a clear expression of a present desire for an
attorney, and no matter the breadth given, Subdiaz‐Osorio’s
statement failed to meet the requisite level of clarity.
20 No. 18‐1061
We reiterate that our habeas review is circumscribed and
deferential. “The issue is not whether federal judges agree
with the state court decision or even whether the state court
decision was correct.” Dassey, 877 F.3d at 302. Reasonable
minds may disagree over the correct interpretation of Sub‐
diaz‐Osorio’s statement, and it may be susceptible to different
reasonable interpretations. But the only issue we must con‐
front is whether the state court’s “decision was unreasonably
wrong under an objective standard.” Id. (citing Williams v.
Taylor, 529 U.S. 362, 410–11 (2000) (majority opinion of O’Con‐
nor, J.)). The Wisconsin state court did not unreasonably ap‐
ply clearly established law in finding that Subdiaz‐Osorio did
not unequivocally invoke his right to counsel.
C. Postrequest conduct
In Smith v. Illinois, the Supreme Court made clear that “an
accused’s postrequest responses to further interrogation may
not be used to cast doubt on the clarity of his initial request
for counsel.” 469 U.S. at 91. That is because the Court’s prece‐
dent set forth a brightline rule “that all questioning must cease
after an accused requests counsel.” Id. at 98. Subdiaz‐Osorio
believes that the state court violated this tenet.
The Wisconsin Supreme Court stated that “[i]t was rea‐
sonable for Officer Torres to assume Subdiaz‐Osorio was ask‐
ing about how he could get an attorney for his extradition
hearing, especially since Subdiaz‐Osorio continued to answer
questions and remained cooperative for the rest of the inter‐
view.” Subdiaz‐Osorio, 2014 WI 87, ¶ 87. The second clause,
referring to Subdiaz‐Osorio’s poststatement conduct, causes
us to hesitate. There is no question that if that if the court re‐
lied on Subdiaz‐Osorio’s postrequest cooperation to find am‐
biguity in the request itself, that reasoning would have gone
No. 18‐1061 21
beyond Smith’s admonition. See Smith, 469 U.S. at 98–99 (“Us‐
ing an accused’s subsequent responses to cast doubt on the
adequacy of the initial request itself is even more intolera‐
ble.”). But that did not happen here.
Subdiaz‐Osorio’s argument rests on the premise that his
request was unambiguous. As we already found, the state‐
ment was ambiguous and a reasonable officer in the circum‐
stances could have understood Subdiaz‐Osorio to be asking
about counsel for the extradition hearing. But even setting
that aside and assuming that his request was unambiguous,
the Wisconsin Supreme Court did not use his postrequest co‐
operation to read ambiguity into the statement. See Smith,
469 U.S. at 97 (“The courts below were able to construe
Smith’s request for counsel as ‘ambiguous’ only by looking to
Smith’s subsequent responses to continued police questioning
and by concluding that, ‘considered in total,’ Smith’s ‘state‐
ments’ were equivocal.”). Instead, the court had already deter‐
mined that, applying Davis, Subdiaz‐Osorio did not unequiv‐
ocally request counsel to be present during the interrogation.
Subdiaz‐Osorio, 2014 WI 87, ¶ 86. The dissent calls the “espe‐
cially” statement the “key analysis” to the Wisconsin Su‐
preme Court’s holding. But the “especially” clause, itself
placed in context, is better read as—unnecessarily and inap‐
propriately—buttressing the court’s conclusion rather than
relying on the postrequest cooperation to reach its conclusion.
Though the state court’s look to Subdiaz‐Osorio’s postre‐
quest conduct gives us pause, the inclusion of that observa‐
tion does not render its decision contrary to Smith. In line with
Edwards and its progeny, Smith hews to the same rule that a
suspect’s request must be unambiguous to actually invoke the
right to counsel. See Smith, 469 U.S. at 98 (“Where nothing
22 No. 18‐1061
about the request for counsel or the circumstances leading up
to the request would render it ambiguous, all questioning
must cease.”). Subdiaz‐Osorio’s cooperation cannot be used
to cast doubt on the request itself; but where the request was
itself doubtful, the state court did not use postrequest conduct
to cast any doubt. This is not substituting our “thought as to
more supportive reasoning.” The Wisconsin Supreme Court’s
decision fits within the body of clearly established law: “Our
case law is clear that it is not enough for a suspect to say some‐
thing that the interviewer might interpret as an invocation of
the right to counsel. The invocation of that right must be une‐
quivocal. In this case it was not.” Subdiaz‐Osorio, 2014 WI 87,
¶ 87 (internal citation omitted).
D. The state court’s factual findings
Lastly, Subdiaz‐Osorio also argues that the Wisconsin Su‐
preme Court made two unreasonable factual determinations:
first, finding that “here” referred back to the extradition pro‐
cess; and second, affording weight to the fact that Subdiaz‐
Osorio had signed a Miranda waiver form. The first factual
dispute largely recasts his legal argument, which we have al‐
ready rejected, and the second is not a fact that is in dispute.
In any event, whether a finding of fact or conclusion of law,
neither determination was unreasonable. 28 U.S.C.
§ 2254(d)(2).
With respect to “here,” Subdiaz‐Osorio argues that it was
unreasonable to find that “here” referred to the extradition
hearing when there was no reference to a right to counsel at
the hearing. He was only informed that he had a right to have
counsel present during the interrogation. It follows, accord‐
ing to Subdiaz‐Osorio, that the request for counsel only could
have been regarding the right he was made aware of. This
No. 18‐1061 23
proves too much. At the threshold it assumes that it is unrea‐
sonable for a suspect to think he might have a right to counsel
at a court proceeding; a proposition we think untenable.
Nothing prevents a suspect from requesting counsel even if
he unknowingly does not have a right to one. Stepping over
that hurdle, the context leading up to Subdiaz‐Osorio’s re‐
quest belies the argument. The immediately preceding dis‐
cussion between Subdiaz‐Osorio and Officer Torres con‐
cerned the extradition process. Officer Torres told Subdiaz‐
Osorio that a hearing would first take place “here in Arkan‐
sas,” and Subdiaz‐Osorio then asked how to “get an attorney
here.” Officer Torres’s indication that they “are not going to
do that right now” and “not going to know that right now”
does not sever the discussion. In this light, the Wisconsin Su‐
preme Court reasonably determined that “here” referred to
the extradition hearing in Arkansas. “Disagreement on a par‐
ticular judgment call does not show that the state court found
the facts unreasonably.” Dassey, 877 F.3d at 316.
On Subdiaz‐Osorio’s second point, there was no factual
determination regarding the waiver of rights form. It was,
and is, undisputed that Subdiaz‐Osorio was read his Miranda
rights and signed the waiver form. That the state court noted
this additional fact does not render its decision infirm. See
Subdiaz‐Osorio, 2014 WI 87, ¶ 87 (“In addition, prior to sitting
down for the interview, Subdiaz‐Osorio signed a waiver of
rights form, which Officer Torres had read to him in Span‐
ish.”). As the court continued, applying Edwards and its prog‐
eny, all that means is that after being advised of his Miranda
rights and validly waiving those rights, a suspect may still
“express[] his desire to deal with the police only through
counsel” at any time. Edwards, 451 U.S. at 484. That expression
must be a clear assertion. Davis, 512 U.S. at 461 (“We therefore
24 No. 18‐1061
hold that, after a knowing and voluntary waiver of the Mi‐
randa rights, law enforcement officers may continue question‐
ing until and unless the suspect clearly requests an attor‐
ney.”). That Subdiaz‐Osorio did not clearly assert his right to
counsel was a reasonable determination and consistent with
the evidence and the relevant law.
III. Conclusion
Subdiaz‐Osorio stabbed his brother in the eye and killed
him in a drunken fight. He was arrested in Arkansas, presum‐
ably on his way to Mexico, and interrogated there by Kenosha
police officers. After discussing the extradition process, Sub‐
diaz‐Osorio made an ambiguous and equivocal reference to
an attorney, asking—as translated from Spanish to English at
the suppression hearing—“[h]ow can I do get an attorney
here.” The state court found that Subdiaz‐Osorio did not
clearly invoke the right to have counsel present during the in‐
terrogation. That decision reasonably applied clearly estab‐
lished federal law and was based on a reasonable determina‐
tion of facts. The district court’s denial of habeas relief is
AFFIRMED.
No. 18‐1061 25
HAMILTON, Circuit Judge, dissenting. The Wisconsin Su‐
preme Court gave two reasons for not honoring Subdiaz‐
Osorio’s request for counsel: (1) he continued to speak to in‐
terrogators after asking for a lawyer, and (2) he might have
been seeking a lawyer for a future extradition hearing. Both
reasons conflict with clear U.S. Supreme Court precedent.
First: “Using an accused’s subsequent responses to cast doubt
on the adequacy of the initial request” for counsel is “intoler‐
able.” Smith v. Illinois, 469 U.S. 91, 98–99 (1984). Second: courts
must “give a broad, rather than a narrow, interpretation to a
defendant’s request for counsel” and must “presume that the
defendant requests the lawyer’s services at every critical stage
of the prosecution.” Michigan v. Jackson, 475 U.S. 625, 633 (1986)
(emphasis added). As a result, Subdiaz‐Osorio’s subsequent
statements should have been suppressed under Edwards v. Ar‐
izona, 451 U.S. 477 (1981). Even under the deferential stand‐
ards of AEDPA, the state court’s refusal to do so was an un‐
reasonable application of clearly established Federal law. See
28 U.S.C. § 2254(d)(1). The writ should issue to vacate Sub‐
diaz‐Osorio’s conviction and to allow retrial only without the
statements obtained by violating his constitutional right to
counsel.
I. Clear Invocation of the Right to Counsel
To begin, Subdiaz‐Osorio unambiguously invoked his
Fifth Amendment right to counsel when he said, “how can I
do to get an attorney here because I don’t have enough to af‐
ford for one.”1 The state supreme court, the state, and the
1 As the majority explains, ante at 6 n.3, we can safely assume that
Subdiaz‐Osorio’s statement was grammatical in Spanish; the strange syn‐
tax comes from the live translation in the Wisconsin trial court.
26 No. 18‐1061
panel majority and I all agree that Subdiaz‐Osorio thus in‐
voked his right to counsel for some purpose. The supposed
ambiguity goes only to the scope of that request, i.e., whether
he was seeking a lawyer for a possible future extradition hear‐
ing instead of for the interrogation happening when he made
the request. See State v. Subdiaz‐Osorio, 849 N.W.2d 748, 773
¶ 87 (Wis. 2014) (“It was reasonable for Officer Torres to as‐
sume Subdiaz‐Osorio was asking about how he could get an
attorney for his extradition hearing . . . .” (emphasis added));
Appellee’s Br. at 27 (“Subdiaz‐Osorio was only referring to
the assistance of counsel for the extradition proceedings, and any
invocation of the right to counsel beyond that was ambiguous”
(emphasis added)); ante at 23 (“the Wisconsin Supreme Court
reasonably determined that ‘here’ referred to the extradition
hearing in Arkansas”).
The state court also hinted at a broader holding, however,
that Subdiaz‐Osorio somehow fell short of actually requesting
an attorney: “Subdiaz‐Osorio was asking about the process of
obtaining an attorney rather than asking for counsel to be pre‐
sent during the interview.” 849 N.W.2d at 773, ¶ 86 (emphasis
added). I do not understand the majority to approve this more
expansive line of reasoning. That lack of approval is correct.
We have repeatedly found unequivocal requests for counsel
in similar questions:
 “I have to get me a good lawyer, man. Can I make a
phone call?” Lord v. Duckworth, 29 F.3d 1216, 1221 (7th
Cir. 1994), citing Robinson v. Borg, 918 F.2d 1387, 1391
(9th Cir. 1990).
 “Can I talk to a lawyer? At this point, I think maybe
you’re looking at me as a suspect, and I should talk to
a lawyer. Are you looking at me as a suspect?” Lord, 29
No. 18‐1061 27
F.3d at 1221, citing Smith v. Endell, 860 F.2d 1528, 1529
(9th Cir.1988).
 “Could I get a lawyer?” United States v. Wesela, 223 F.3d
656, 661–62 (7th Cir. 2000) (finding no Edwards viola‐
tion, however, because suspect then reinitiated conver‐
sation).
 “Can I have a lawyer?” United States v. Lee, 413 F.3d
622, 625 (7th Cir. 2005).
 “I mean, but can I call one now? That’s what I’m say‐
ing.” United States v. Wysinger, 683 F.3d 784, 795–96 (7th
Cir. 2012).
 “Can you call my attorney?” United States v. Hunter,
708 F.3d 938, 943 (7th Cir. 2013).
By the logic of Justice Prosser’s lead opinion for the Wisconsin
Supreme Court, any of these questions could be construed as
an inquiry into the process of obtaining counsel rather than a
demand to have counsel. But people often phrase requests as
questions, perhaps to be polite or because they are not confi‐
dent of their rights, not because they need information. Since
the majority does not rely on this artificial distinction, I turn
to the two mistaken grounds for decision that the majority
embraces.
II. Unconstitutional Use of Post‐Invocation Answers
The Wisconsin Supreme Court’s reliance on Subdiaz‐
Osorio’s post‐invocation answers to inject ambiguity into his
request was as clear a departure from U.S. Supreme Court
precedent as we are likely to see. “Using an accused’s subse‐
quent responses to cast doubt on the adequacy of the initial
request” is “intolerable.” Smith v. Illinois, 469 U.S. 91, 98–99
(1984). Yet the majority decides to tolerate the intolerable. The
28 No. 18‐1061
majority acknowledges the state court’s clear departure from
controlling law, ante at 21–22, but tries to downplay it, assert‐
ing that this “intolerable” rationale merely buttressed a con‐
clusion the state court had already made on other grounds.
I cannot agree. True, the Wisconsin Supreme Court stated
its ultimate conclusion up front, without relying on post‐in‐
vocation answers. See 849 N.W.2d at 773, ¶ 86. But the key
analysis came in a single sentence in the next paragraph: “It
was reasonable for Officer Torres to assume Subdiaz‐Osorio
was asking about how he could get an attorney for his extra‐
dition hearing, especially since Subdiaz‐Osorio continued to an‐
swer questions and remained cooperative for the rest of the inter‐
view.” Id. ¶ 87 (emphasis added). The second clause flatly vi‐
olates Smith, and the state court relied on it—“especially.”
Where the state court provides a reasoned opinion, our job
is to examine the reasons the court gave. We need not try to
imagine permissible ways to uphold the judgment. See Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018). We must “respect what
the state court actually did” rather than substitute “the federal
court’s thought as to more supportive reasoning.” Id. at 1197.
The state court explained why it found Subdiaz‐Osorio’s in‐
vocation ambiguous. Its reason flatly contravened Supreme
Court precedent. We should take the Wisconsin justices at
their word.
III. Ambiguous Scope of the Invocation
The other reason the Wisconsin Supreme Court gave was
supposed ambiguity as to the scope, as opposed to the exist‐
ence, of Subdiaz‐Osorio’s invocation of the right to counsel.
Did he desire counsel for the interrogation he was then un‐
dergoing, or for an extradition hearing to take place at some
No. 18‐1061 29
unknown future time? Both the majority and the Wisconsin
Supreme Court assume without argument that ambiguity as
to scope falls within the ambit of Davis v. United States, which
held that “the suspect must unambiguously request counsel”
in order to enjoy the protection of Edwards. 512 U.S. 452, 459
(1994); see ante at 17; 849 N.W.2d at 772 ¶¶ 84–85. But Davis
concerned ambiguity as to whether the suspect was invoking
the Fifth Amendment right at all, for any purpose. The sus‐
pect in Davis stated, “maybe I should talk to a lawyer.” 512
U.S. at 455. The Supreme Court held that this was not a clear
“expression of a desire for the assistance of an attorney.” Id.
at 459.
In this case, by contrast, there was a clear invocation for
some purpose. Based solely on the word “here” in Subdiaz‐
Osorio’s request, however, the state court and majority find
the request was ambiguous in scope. (We all agree that, with‐
out “here,” the question “how can I do to get an attorney be‐
cause I don’t have enough to afford one” would be sufficient
to require that interrogation stop.) In such cases, the Supreme
Court holds, courts must construe the ambiguous scope in the
suspect’s favor. The state court unreasonably departed from
three Supreme Court rulings that set forth this rule: Jackson,
Barrett, and Minnick.
I begin with Connecticut v. Barrett, 479 U.S. 523 (1987), a
case that the majority brushes aside too quickly. See ante at
19. Suspect Barrett had unambiguously invoked the right to
counsel but had limited the scope of his invocation to written
statements. In particular, Barrett said that “he would not give
a written statement unless his attorney was present but had
‘no problem’ talking about the incident.” 479 U.S. at 525. The
police toed this line. They continued questioning him only
30 No. 18‐1061
orally, eliciting a confession. On direct appeal from the Con‐
necticut state courts, the Supreme Court found no violation of
the Edwards rule given the “ordinary meaning of [Barrett’s]
statement.” Id. at 530.
In so holding, however, the Court reinforced the rule that
governs Subdiaz‐Osorio’s case: the scope of an invocation of
the right to counsel must be construed broadly. The Court en‐
dorsed the “settled approach to questions of waiver [that] re‐
quires us to give a broad, rather than a narrow, interpretation
to a defendant’s request for counsel.” Id. at 529 (alteration in
original), quoting Michigan v. Jackson, 475 U.S. 625, 633 (1986).
Granted, such interpretation “is only required where the de‐
fendant’s words, understood as ordinary people would un‐
derstand them, are ambiguous.” Id. Finding no ambiguity as
to the limited scope of Barrett’s invocation, the Court ruled
against him. But if Barrett had been less clear that he was will‐
ing to give oral statements, the Court’s reasoning would have
required excluding the confession. Applied to this case, be‐
cause even the state court and majority agree it was at least
ambiguous whether Subdiaz‐Osorio limited the scope of his
invocation to a future extradition hearing, the interrogation
should have stopped.
Barrett’s operative language derived from Jackson, 475 U.S.
at 625, decided a year earlier. The primary holding of Jackson
dealt with the effect of a request for counsel at arraignment
on later custodial interrogations. That holding was overruled
in Montejo v. Louisiana, 556 U.S. 778 (2009), and is not relevant
here. But Jackson’s separate discussion of the scope of waivers
of constitutional rights remains good law: “Doubts must be
resolved in favor of protecting the constitutional claim.” 475
U.S. at 633. As a result, courts must “give a broad, rather than
No. 18‐1061 31
a narrow, interpretation to a defendant’s request for counsel”
and “presume that the defendant requests the lawyer’s ser‐
vices at every critical stage of the prosecution.” Id. (emphasis
added). Once there is an unequivocal invocation of the right
to counsel for at least some purpose, in other words, Davis no
longer applies. Ambiguity as to the invocation’s scope is con‐
strued in favor of the suspect. Neither Davis nor Montejo ad‐
dressed, let alone overruled, this aspect of Jackson.
The state court also unreasonably applied the Court’s rul‐
ing in Minnick v. Mississippi, 498 U.S. 146 (1990). In that case,
the suspect unambiguously invoked his right to counsel dur‐
ing an interrogation when he said, “Come back Monday
when I have a lawyer.” Id. at 148–49. He was then allowed to
consult with an appointed attorney, but on Monday police of‐
ficers returned and interrogated him without the lawyer pre‐
sent, eliciting incriminating statements. Id. at 149. The Missis‐
sippi Supreme Court reasoned that, since counsel had been
made available in the interim, Edwards did not exclude the
statements. See 551 So. 2d 77, 83 (Miss. 1988).
The U.S. Supreme Court reversed based on the “clear and
unequivocal” command of Edwards: “when counsel is re‐
quested, interrogation must cease, and officials may not rei‐
nitiate interrogation without counsel present, whether or not
the accused has consulted with his attorney.” 498 U.S. at 153–
54. A clear invocation of the right to counsel should halt inter‐
rogation, period. State officials may not weigh whether the
suspect desires counsel moment by moment because that
would create “a regime in which Edwards’ protection could
pass in and out of existence multiple times prior to arraign‐
ment.” Id. at 154. The state court’s judgment that Subdiaz‐
32 No. 18‐1061
Osorio might have wanted a lawyer only for his extradition
authorizes just such a regime.
If the federal courts allow evasion of Edwards here, we will
invite police interrogators to evade controlling federal consti‐
tutional law by parsing requests for counsel for arguable am‐
biguities and then going forward with interrogations anyway.
That remains—for now—a high‐risk tactic, but the potential
for abuse is plain. We can safely assume that custodial inter‐
rogations often involve discussions of upcoming proceed‐
ings—arraignments, bail hearings, plea bargaining sessions,
and more. Neither Edwards nor Davis nor any other Supreme
Court decision has required suspects to exclude these possi‐
bilities by specifying when and where they desire counsel. Cf.
Smith, 469 U.S. at 97 (“Uh, yeah, I’d like to do that” was un‐
ambiguous invocation of right to counsel). Instead, under Bar‐
rett, Smith, and Minnick, interrogators, state courts, and lower
federal courts must presume a request is broad absent unam‐
biguous evidence to the contrary. When Subdiaz‐Osorio re‐
quested counsel “here,” the officers were obliged to halt their
interrogation. They could have asked Subdiaz‐Osorio to clar‐
ify whether he wanted counsel for the interrogation or for the
future extradition proceedings. Under Barrett, Smith, and
Minnick, however, they could not silently interpret the argua‐
ble ambiguity in favor of going forward.
IV. Harmless Error?
On appeal, the state argues in the alternative that the Fifth
Amendment violation was harmless. The state forfeited this
argument by failing to present it to the district court. As we
explained in Rhodes v. Dittmann, 903 F.3d 646 (7th Cir. 2018),
states “can waive or forfeit the harmless error issue,” even if
No. 18‐1061 33
they raised it in state court. See id. at 663–64. “It is not the
court’s job to search the record—without any help from the
parties—to determine that the errors we find are prejudicial.”
Id. at 664; see also Sanders v. Cotton, 398 F.3d 572, 582 (7th Cir.
2005); United States v. Giovannetti, 928 F.2d 225, 226 (7th Cir.
1991). The state’s submissions to the district court did not
even hint at harmless error.2
This court exercises its discretion to overlook a state’s fail‐
ure to argue harmless error only if “the harmlessness of the
error or errors found is certain,” such that a reversal would
lead to “futile proceedings in the district court,” Sanders, 398
F.3d at 582, or in the state courts for that matter. On habeas
review, an error is not harmless if it “had substantial and in‐
jurious effect or influence” on the state court proceedings.
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). “[W]hen a ha‐
beas court is in grave doubt as to the harmlessness of an error
that affects substantial rights, it should grant relief.” O’Neal v.
McAninch, 513 U.S. 432, 445 (1995).
Under the “grave doubt” standard, it is not at all certain
that admitting Subdiaz‐Osorio’s statements was harmless. As
the majority notes, there was significant evidence that Ojeda‐
Rodriguez, not Subdiaz‐Osorio, was the initial aggressor. See
ante at 3. After invoking his right to counsel, Subdiaz‐Osorio
gave contradictory statements to the police concerning who
first took out a knife. Id. at 3 n.2. The admission of these in‐
consistent statements in violation of Edwards undermined
Subdiaz‐Osorio’s ability to raise self‐defense at trial and likely
encouraged him to plead guilty.
2 The majority does not reach the issue. Ante at 16 n.5.
34 No. 18‐1061
Accordingly, I respectfully dissent. I would reverse and
grant a writ of habeas corpus.