In the

United States Court of Appeals
                For the Seventh Circuit

No. 07-2486

H OWARD A. A LLEN, JR.,
                                                Petitioner-Appellant,
                                  v.


E DWIN G. B USS, S UPERINTENDENT,

                                               Respondent-Appellee.


             Appeal from the United States District Court
      for the Southern District of Indiana, Indianapolis Division.
              No. 01 C 1658—John Daniel Tinder, Judge.



       A RGUED JULY 25, 2008—D ECIDED M ARCH 11, 2009




  Before F LAUM, R OVNER, and W ILLIAMS, Circuit Judges.
  W ILLIAMS, Circuit Judge. In 1988, consistent with a jury’s
verdict and sentencing recommendation, the Marion
Superior Court in Indiana sentenced Howard A. Allen, Jr.
to death by lethal injection for the murder and robbery
of Ernestine Griffin. Since then, Allen has been asking
the Indiana state courts to consider his claim that he is
mentally retarded and therefore should not be executed.
First, he sought relief when Indiana banned the execution
2                                              No. 07-2486

of mentally retarded persons in 1994, but the Indiana
courts held that the new statute did not apply retro-
actively to Allen. Instead, the state trial court, without
holding a hearing, considered his mental retardation as a
mitigating factor and found it did not outweigh the
aggravating circumstance of his crime. In 2002, after the
Supreme Court issued its opinion in Atkins v. Virginia,

(2002), which categorically banned the ex-
ecution of the mentally retarded, Allen again sought relief
from his execution. But the Indiana Supreme Court deter-
mined that because Allen had already litigated his claim
that he was mentally retarded as a mitigating circum-
stance, he would not be allowed to relitigate his Atkins
claim. We think this decision is contrary to the Supreme
Court’s holding in Atkins, which recognized that there
is a difference between using mental retardation as a
mitigating factor and categorically excluding mentally
retarded persons from the death penalty altogether.
Because Allen has presented evidence that he is mentally
retarded, we vacate the district court’s denial of Allen’s
habeas petition and remand the case to the district court
for an evidentiary hearing to address whether Allen
is mentally retarded under Indiana law.
  In light of our standard of review on habeas claims, we
reject Allen’s remaining two arguments. Allen maintains,
pursuant to the Supreme Court’s opinion in Eddings v.
Oklahoma, 

(1982), that he should have
received a new penalty phase hearing before a jury and
that the sentencing court ignored some of his mitigating
evidence. Because Allen did not raise the first argument
in the Indiana courts, we find that he procedurally de-
No. 07-2486                                               3

faulted this claim, which precludes us from reaching its
merits. As to his claim regarding mitigating evidence, the
sentencing court’s order does not make clear that it
ignored Allen’s evidence rather than choosing to give
it little weight so we are constrained by the Indiana
Supreme Court’s finding that the trial court considered
the evidence, which is not objectively unreasonable.
Allen also claims that his statements were taken in viola-
tion of Miranda v. Arizona, 

(1966), and
were improperly admitted at trial. However, he fails to
establish that the state court’s adjudication of his Miranda
claims resulted in a decision that was contrary to, or an
unreasonable application of, Supreme Court precedent,
or based on an unreasonable determination of the facts.
See 28 U.S.C. § 2254(d)(1) & (2). For these reasons, we
affirm the judgment of the district court on Allen’s Eddings
and Miranda claims.


                   I. BACKGROUND
  Because Allen has raised three distinct issues, we set
forth here a brief summary of the facts and discuss in
greater detail the facts applicable to each issue below. In
1988, a jury convicted Allen of the murder, felony
murder, and robbery of Ernestine Griffin. The State of
Indiana sought the death penalty based on the circum-
stances of the crime (intentional killing during a rob-
bery). The trial court followed the jury’s recommendation
and sentenced Allen to death.
  Allen appealed, but before the Indiana Supreme Court
considered his appeal, it remanded the case to the trial
4                                               No. 07-2486

court and directed it to issue a written sentencing order.
In the same order, it stated that the trial court should
consider Allen’s evidence of mental retardation as a
mitigating factor. In 1996, the trial court, without holding
a hearing, considered Allen’s evidence and concluded in
a written sentencing order that “the possibility of the
mitigating circumstance of [Allen’s] mental retardation”
did not outweigh the aggravating circumstance of his
crime. In that order, the court also considered and ruled
out other mitigating circumstances, such as Allen’s age
and criminal history.
  The Indiana Supreme Court then ordered supplemental
briefing and considered Allen’s appeal in full. It affirmed
Allen’s conviction and sentence. Allen v. State, 

(Ind. 1997) (“Allen I”). The Indiana Supreme Court
considered no less than seventeen issues but the
following holdings are the only relevant ones: (1) Allen’s
statements to the police at the time of his interrogation
were made voluntarily; (2) Allen was not entitled to the
benefit of Indiana’s amended law prohibiting the execu-
tion of the mentally retarded; and (3) the trial court’s
sentencing order properly considered and weighed the
evidence in favor of and against imposing the death
penalty and reflected no constitutional or statutory error.
Allen then sought post-conviction relief on a number of
issues not relevant to this appeal. The Indiana Supreme
Court denied his claims. Allen v. State, 

(Ind. 2001) (“Allen II”).
  In March 2002, Allen filed a petition for habeas relief
in federal district court. While that petition was pending,
No. 07-2486                                               5

the United States Supreme Court issued its opinion in
Atkins v. Virginia, 

(2002), which held that
“death is not a suitable punishment for a mentally
retarded criminal,” and categorically banned the execu-
tion of mentally retarded 

.
  Allen then moved the Indiana Supreme Court for
permission to file a successive petition for post-conviction
relief. In that motion, Allen claimed that his execution
was prohibited by Atkins. The court held that because
Allen had already litigated that claim, he would not be
allowed to relitigate it. Allen v. State, No. 49S00-0303-SD-
122, 2003 Ind. LEXIS 581 (Ind. July 15, 2003) (unpublished
order) (“Allen III”). Justice Boehm dissented, contending
that the issue was, in fact, not litigated and that Allen
should be permitted to litigate it.
  On September 19, 2006, the district court denied Allen’s
habeas petition without a hearing and entered judgment
against him. The district court concluded that Supreme
Court case law did not entitle Allen to habeas relief. It
also denied Allen’s motion to alter or amend judgment
on May 30, 2007.


                      II. ANALYSIS
A. Standard of Review
  We review de novo the district court’s denial of a habeas
petition. Arredondo v. Huibregtse, 

, 1167 (7th
Cir. 2008). Pursuant to the Antiterrorism and Effective
Death Penalty Act (AEDPA), we may grant habeas relief
only if: (1) the state court’s decision was “contrary to, or
6                                                 No. 07-2486

involved an unreasonable application of, clearly estab-
lished Federal law as determined by the Supreme Court,”
28 U.S.C. § 2254(d)(1), or (2) “the decision . . . was based on
an unreasonable determination of the facts in light of the
evidence presented in the state proceeding.” 28 U.S.C.
§ 2254(d)(2).
  A decision is “contrary to” clearly established federal
law “if the state court arrives at a conclusion opposite to
that reached by [the Supreme Court] on a question of
law or if the state court decides a case differently than
[the Supreme Court] has on a set of materially indistin-
guishable facts.” Williams v. Taylor, 

, 413 (2000).
A decision represents an “unreasonable application” of
clearly established federal law “if the state court identifies
the correct governing legal principle from [the Supreme
Court’s] decisions but unreasonably applies that principle
to the facts of the prisoner’s case.” 

determined by state courts are presumed to be correct,
and the petitioner bears the burden of rebutting this
presumption by clear and convincing evidence. 28
U.S.C. § 2254(e)(1).


B. Allen is entitled to an Atkins hearing.
  Allen claims that his execution would violate the
Eighth Amendment because he is mentally retarded. In
Atkins v. Virginia, the Supreme Court construed the
Eighth Amendment to prohibit the execution of mentally
retarded persons, reasoning that such punishment would
be 

. The Court did not pro-
vide a definition for “mental retardation,” entrusting the
No. 07-2486                                                7

states with the “task of developing appropriate ways to
enforce the constitutional restriction” upon the execution
of their sentences. 

(quoting Ford v. Wainwright,

, 416-17 (1986)). Atkins is retroactive on col-
lateral review. Penry v. Lynaugh, 

, 330 (1989)
(a holding that “the Eighth Amendment prohibits the
execution of mentally retarded persons such as Penry . . .
would fall under the first exception to the general rule
of nonretroactivity and would be applicable to defendants
on collateral review”); see also Davis v. Norris, 

, 879 (8th Cir. 2005) (Atkins retroactive pursuant to
Penry); In re Holladay, 

, 1173 (11th Cir. 2003).
  Indiana defines a mentally retarded individual as
someone who, “before becoming twenty-two (22) years of
age, manifests: (1) significantly subaverage intellectual
functioning; and (2) substantial impairment of adaptive
behavior. . . .” Ind. Code § 35-36-9-2. Indiana enacted
this statute in 1994, prior to the Supreme Court’s decision
in Atkins, but by that time Allen had already been con-
victed and sentenced to death. That same year, Indiana
also banned the execution of the mentally retarded. Prior
to 1994, Indiana courts could consider mental retardation
as a mitigating factor when deciding whether to impose
the death penalty.
  Allen sought appellate relief from his death sentence
under the Indiana statute, claiming that he was mentally
retarded, and submitted affidavits in support of his
claim. In 1996, the Indiana Supreme Court remanded the
case to the trial court and directed it to consider Allen’s
affidavits as mitigating evidence. Critically, the Indiana
8                                              No. 07-2486

Supreme Court did not vacate the death sentence, nor
did it instruct the trial court to consider evidence of
mental retardation as a potential bar to Allen’s execution.
See Allen 

.
  Allen submitted the following evidence to support his
claim that he is mentally retarded.1 IQ tests administered
when Allen was seven years old revealed he had an IQ
of 70. He was placed in special education classes for
mentally retarded children when he was eight years old.
At the age of ten, he was retested and received a score
of 68, so he remained in special education classes. Mary
Jo Dare Avers and Dr. Richard Dever provided affidavits
on behalf of Allen. Dr. Dever concluded, based on tests
administered to Allen when he was a child and his IQ
scores, that Allen was mentally retarded. Avers, the
Director of Special Education for the Indianapolis Public
School Corporation, opined that Allen had difficulty
processing language as a child and could have difficulty
understanding the consequences of his conduct and be
easily led. Dr. Dever opined that Allen manifested deficits
in adaptive behavior during the developmental period
in his life. There was no expert who contradicted these
conclusions.
  Without holding a hearing, the trial court issued an
order stating that it had examined the “mitigating cir-
cumstances” and concluded that death was appropriate


1
  We note that this is not an exhaustive summary of the
evidence presented by Allen. We set forth only some of the
relevant evidence for purposes of the discussion.
No. 07-2486                                                  9

based on the jury’s recommendation. In so doing, the trial
court explained that the “information contained in the
affidavits . . . tend [sic] to show a mitigating factor, but
is a very slight mitigating factor.” It discussed other
evidence in the record, such as the reports of two court-
appointed psychiatrists in 1975 who reported that he
was “well oriented and had the capacity to understand
his behavior,” the fact that no witness called by Allen at
his sentencing mentioned mental retardation, and the
court’s own observations of Allen during the trial and
sentencing hearing. It also noted that the pre-sentence
report stated that Allen “had an IQ of 104.” The court
then concluded that “the aggravating circumstance out-
weighs the possibility of the mitigating circumstance of
mental retardation” and agreed with the jury that death
was the appropriate sentence. The Indiana Supreme
Court affirmed Allen’s conviction and sentence. Al-
though Allen attempted to seek relief under Indiana’s
new statute prohibiting the execution of the mentally
retarded, the court held that the statute did not apply
retroactively to Allen. Allen 

.
  After the Supreme Court issued its opinion in Atkins,
Allen moved the Indiana Supreme Court for permission
to file a successive petition for post-conviction relief,
claiming that his execution is prohibited by Atkins. The
Indiana Supreme Court denied the motion. It explained
that because the Indiana courts had already considered
evidence of Allen’s mental retardation as a mitigating
factor, Allen could not relitigate his Atkins claim. Allen III,
2003 Ind. LEXIS 581, at *14.
10                                              No. 07-2486

   The court acknowledged that the issue of Allen’s mental
capacity was presented to the trial court in the context
of whether Allen’s mental retardation was a mitigating
circumstance sufficient to outweigh the aggravating
circumstance. But it reasoned that the factual inquiry
required by this balancing test is the same as the one
required by Atkins: “is the person mentally retarded?” 

After reviewing the paper evidence submitted
by Allen in 1996 and the trial court’s decision to give it
little weight as a mitigating factor in light of other evi-
dence, the Indiana Supreme Court concluded that Allen
“had a full and fair opportunity to litigate the issue of
whether he is mentally retarded.” 

  This decision is contrary to the Supreme Court’s holding
in Atkins, which recognized that there is a difference
between using mental retardation as a mitigating factor
and categorically excluding mentally retarded persons
from the death penalty 

. One
is a balancing test and the other is a ban. According to
the Supreme Court, the difference between these in-
quiries matters. The Supreme Court held that reliance on
mental retardation as a mitigating factor was insuf-
ficient to protect mentally retarded defendants because
they are less able to give meaningful assistance to their
counsel, and their demeanor may create an unwarranted
impression of lack of remorse. 

“lesser
ability of mentally retarded defendants to make a persua-
sive showing of mitigation in the face of prosecutorial
evidence of one or more aggravating factors”). Because
“[m]entally retarded defendants . . . face a special risk of
wrongful execution,” the Supreme Court found it neces-
No. 07-2486                                              11

sary to “categorically” exclude mentally retarded persons
from the death penalty. 

Indeed, the state
court in Atkins considered evidence of the defendant’s
mental retardation as a mitigating factor, but the
Supreme Court held that was not sufficient under the
Constitution. And it bears noting that the state court on
remand held a hearing regarding Atkins’s mental re-
tardation even though a jury already heard evidence
regarding his mental retardation during the penalty
phase of his trial.
  Here, Allen’s claim regarding mental retardation re-
ceived consideration only as a mitigating factor. We
simply cannot reconcile the Indiana Supreme Court’s
determination—that Allen had already litigated his
Atkins claim because he was able to present it as mitigating
evidence—with the Supreme Court’s decision that the
consideration of mental retardation as a mitigating
factor does not sufficiently protect the rights of mentally
retarded persons. See, e.g., Hall v. Quarterman, 

, 371-72 (5th Cir. 2008) (remanding defendant’s claim
to district court to conduct an evidentiary hearing where
state only considered defendant’s mental retardation
evidence on paper); Hill v. Anderson, 

, 682
(6th Cir. 2002) (remanding defendant’s claim to state
courts to consider Atkins issue even though jury con-
sidered evidence of mental retardation as mitigating
factor in sentencing).
  The State maintains that the Indiana courts found Allen
to be not mentally retarded and argues that such
findings are presumed correct on habeas review. How-
12                                              No. 07-2486

ever, the state courts in this case never considered
whether Allen is mentally retarded under the Indiana
standard for mental retardation. Cf. Murphy v. Ohio, 

, 506 (6th Cir. 2009) (state court’s finding that
petitioner was not mentally retarded was a “reasonable
application of and in accordance with Supreme Court
precedent” when state court held an evidentiary hearing
and utilized appropriate standard). Instead, the Indiana
Supreme Court relied on the trial court’s pre-Atkins
determination that Allen’s mental retardation was not
sufficiently mitigating to overcome an aggravating cir-
cumstance. That determination was a balancing test, not
a binary inquiry.
  And the trial court’s analysis makes clear that it engaged
in a substantively different inquiry from that mandated
by Atkins. First, the trial court did not determine
whether Allen is mentally retarded under Indiana’s test
for mental retardation. That test would have required
consideration of whether Allen “manifest[ed] . . . signifi-
cantly subaverage intellectual functioning” and “substan-
tial impairment of adaptive behavior” before becoming
twenty-two years of age. Ind. Code § 35-36-9-2. The
trial court’s sentencing order does not even mention,
much less discuss, this test or how it applies to Allen.
Second, the trial court’s sentencing order does not con-
clude that Allen is not mentally retarded. The sentencing
order states that the information contained in Allen’s
affidavits “tend [sic] to show a mitigating factor, but is a
very slight mitigating factor.” Later, it states that the
“aggravating circumstance outweighs the possibility of the
mitigating circumstance of mental retardation.” (Emphases
No. 07-2486                                              13

added.) As Justice Boehm aptly notes in his dissent to
the Indiana Supreme Court’s ruling in Allen III, it is not
clear whether the trial court meant that Allen is only
mildly (or slightly) mentally retarded, or whether it
meant that, though Allen might be mentally retarded, that
fact does not mitigate against putting him to death
(or both). 2003 Ind. LEXIS 581, at *16-17. None of these
readings amounts to a conclusion that Allen was not, in
fact, mentally retarded. In light of these statements and
the entirely different standard utilized by the trial court
in reaching its conclusion, the Indiana Supreme Court’s
determination that the trial court found Allen to be not
mentally retarded for the purposes of Atkins is objec-
tively unreasonable.
  The State also argues that Allen is not entitled to an
evidentiary hearing on whether he is mentally retarded.
“Where the facts are in dispute, the federal court in
habeas corpus must hold an evidentiary hearing if the
habeas applicant did not receive a full and fair
evidentiary hearing in a state court.” Townsend v. Sain, 

, 312 (1963), overruled on other grounds, Keeney v.
Tamayo-Reyes, 

, 5-6 (1992). We have explained
that a hearing is required if: “(1) the petitioner alleges
facts which, if proved, would entitle him to relief and
(2) the state courts, for reasons beyond the control of the
petitioner, never considered the claim in a full and fair
hearing.” Davis v. Lambert, 

, 1061 (7th Cir.
2004).
  As discussed above, Allen has put forth evidence that
he is mentally retarded as Indiana defines that condition,
14                                                  No. 07-2486

and a determination that he is mentally retarded would
entitle him to relief. The State disputes that Allen is
mentally retarded, relying on evidence that remains
free from cross-examination.2 Because the Indiana state
courts never considered Allen’s evidence using the
proper Atkins inquiry (which would have required them
to apply the appropriate standard for mental retarda-
tion), it is objectively unreasonable to conclude that Allen



2
  We disagree with the State that Allen’s claim that he is
mentally retarded can be rejected on the basis of the record
compiled in the state courts. There are disputes that cannot
be resolved without a hearing. We name only a few examples
here. The Indiana courts relied heavily on a “test used by the
Department of Corrections for assessing prisoners” that showed
Allen had an IQ of 104. That test, unlike the tests administered
when Allen was a child, was administered when Allen was
more than 22 years old. The record reveals that the score did not
result from a standard Wechsler Adult Intelligence Scales test
(what the Supreme Court acknowledged to be the “the standard
instrument in the United States for assessing intellectual
functioning,” 

n.5) or a comparable test,
but rather a “Beta” test. The record does not make clear what a
“Beta” test is, or even if it is reliable. More importantly, the
record does not indicate that a score of 104 on a Beta test is
comparable to a score of 104 on a standard Wechsler test or a
Stanford Binet Intelligence Scale. The Indiana Supreme
Court also noted Allen’s mother’s testimony that he was an
“average student.” But the record reveals that Allen was
always in special education classes for mentally retarded chil-
dren. That he was an average student in special education classes
does not show that he was not mentally retarded.
No. 07-2486                                                15

had a “full and fair” hearing on his Atkins claim.3 See, e.g.,
Walker v. True, 

, 327 (4th Cir. 2005) (district
court’s refusal to hold evidentiary hearing was error
where petitioner alleged facts that would entitle him to
relief under Atkins).
  The State responds that 28 U.S.C. § 2254(e)(2) blocks
Allen from receiving a hearing. But by its own terms, that
statute “applies only to prisoners who have ‘failed to
develop the factual basis of a claim in State court pro-
ceedings.’ ” Williams v. Taylor, 

, 430 (2000)
(quoting § 2254(e)(2)). Allen did not fail to develop the
factual basis of this claim. Indeed (and somewhat con-
fusingly), the State contends that “Allen has fully devel-
oped the factual basis for his claim.” Appellee Br. 24. To
the extent that what the State means to argue is that
Allen had a full and fair opportunity to litigate this claim,
we have already rejected this argument.
  One point of clarification remains. At oral argument, the
State argued that if we remanded Allen’s case for an
Atkins hearing, the district court would need to deter-
mine whether Allen satisfies the “clinical definition” of
mental retardation (using Indiana’s standard) and also
“whether or not Allen is among the class of offenders of
which there is a total national consensus.” This national
consensus, according to the State, requires the district
court to find that Allen has an IQ of 60 or below.


3
  For this reason, Allen’s argument in a post-conviction pro-
ceeding (pre-dating Atkins) that he was misdiagnosed as
mentally retarded has no bearing on his Atkins claim.
16                                             No. 07-2486

  We reject this argument. Contrary to the State’s asser-
tion, the Supreme Court in Atkins did not establish a
national standard for mental retardation but expressly
left to the states the task of defining mental 

. And to the extent that the Court acknowl-
edged any limiting IQ score, that score was well above 60.
See 

n.5 (noting that an IQ score “between 70 and
75 or lower . . . is typically considered the cutoff IQ
score for the intellectual functioning prong of the
mental retardation definition.”).
  A straightforward application of Atkins to the facts of
this case entitles Allen to a hearing regarding whether
he is mentally retarded and therefore categorically ex-
cluded from the death penalty. We remand this case to
the district court. On remand, the district court should
give Allen the chance to develop the factual basis of his
claim and present it at an evidentiary hearing. The
court must then determine, using Indiana’s standard for
mental retardation, whether Allen is entitled to relief
under Atkins.


C. Eddings claim
  Next Allen claims that his sentence was imposed in a
manner that violates the rule announced by the Supreme
Court in Eddings v. Oklahoma, 

(1982). Specifi-
cally, Allen argues that he should have received a new
penalty phase hearing before a jury (rather than the
trial court), and that the trial court failed to consider
his mitigating evidence. After setting out the relevant
facts, we address each argument in turn.
No. 07-2486                                                  17

  The Indiana trial court sentenced Allen to death based
on the recommendation of the jury that convicted him. The
Indiana Supreme Court provided a limited remand be-
cause the trial court had imposed its sentence orally and,
at the time of Allen’s appeal, Indiana law required a
written sentencing order. It ordered the trial court to
issue a written sentencing order and directed it to
“balance the aggravating circumstances . . . against the
evidence of mitigating circumstances (including both
statutory and non-statutory circumstances).” See Allen 

n.32. As discussed above, it also
ordered the court to consider Allen’s newly presented
evidence of mental retardation as a mitigating factor.
  The trial court issued a written order concluding that
the aggravating circumstance outweighed any mitigating
circumstances and sentenced Allen to be executed.
Despite the fact that Allen presented evidence of his
traumatic and dysfunctional childhood to the trial court
on remand,4 the trial court’s sentencing order makes no
specific mention of it. The sentencing order reviews a


4
  The record indicates that Allen’s father abandoned Allen and
the rest of the family both physically and financially when
Allen was very young. Allen’s mother suffered from alcoholism
and left Allen with his younger siblings for days at a time
when she went on drinking binges. This abandonment forced
Allen to provide food for his younger siblings when Allen
was too young to get a job. Allen resorted to stealing to get
food and was incarcerated as a juvenile in the 1960s. During the
incarcerations, he endured severe corporal punishment
before a court stepped in to end the traumatic beatings.
18                                               No. 07-2486

number of circumstances, such as Allen’s age and his
mental retardation, and then states that it “finds no
other circumstances appropriate for consideration as a
mitigating factor.”
  When Allen appealed the trial court’s sentence in Allen I,
he argued (among other things) that the trial court “ig-
nored” mitigating circumstances other than whether or
not he was mentally retarded. These mitigating circum-
stances included his dysfunctional childhood and his
mental frailty as a child. Allen’s Supp. Br. 11-14. The
Indiana Supreme Court rejected his argument, finding
that the trial court had properly considered his mitigating
evidence and weighed it against the aggravating circum-
stance. It stated further that “[a]ccepting the facts alleged
about Allen’s childhood does not compel a finding of
mitigating circumstances.” Allen 

.
  We first consider what claims are properly before us.
Federal habeas relief is not available if the petitioner
has not exhausted his state court remedies. See 28 U.S.C.
§ 2254(b)(1)(A). This means Allen first must have “fairly
presented the issues” to the Indiana Supreme Court.
Simpson v. Battaglia, 

, 595 (7th Cir. 2006). Allen
argues that the Indiana Supreme Court erred in 1996
when it remanded his case to the trial court to consider
mitigating evidence rather than ordering a new penalty
phase before a jury. According to Allen, a jury should
have heard all of the mitigating evidence anew. This
argument should have been raised on Allen’s appeal after
the trial court issued its sentencing order. Contrary to
Allen’s strenuous assertions, our review of the record
No. 07-2486                                                19

reveals he never raised this argument in the Indiana state
courts.5 Our conclusion is buttressed by the fact that the
Indiana Supreme Court did not address the issue on
appeal.6 See Allen 

(reciting arguments
raised by Allen on appeal); Allen 

.
Therefore it is not properly before us. See 28 U.S.C.
§ 2254(b)(1)(A).
  We turn to Allen’s argument regarding the substance of
the trial court’s mitigation analysis. Allen argues that the
trial court failed to consider and give effect to
mitigating evidence such as his traumatic childhood and
his ability to adjust in an institutional setting. Although
Allen raised the argument as to the first of these two
mitigating factors in the Indiana courts, we find no men-
tion of his ability to adjust in an institutional setting.
Therefore, we consider only Allen’s claim that the trial
court ignored the evidence regarding his childhood.
  In Eddings, the Supreme Court held that because the
imposition of a death sentence demands individualized



5
  Allen directs us to page 24 of his supplemental brief (filed
after the trial court issued its written sentencing order on
remand). Nowhere in that section, or anywhere in his supple-
mental brief, does he argue that the Indiana Supreme Court’s
order to the trial court to consider new mitigating evidence
was constitutional error because it should have remanded
the case to a jury.
6
  Allen has made no “showing of cause and prejudice for the
default,” nor has he made “a showing that a failure to grant
him relief would work a fundamental miscarriage of justice.”
Thomas v. McCaughtry, 

, 999 (7th Cir. 2000).
20                                              No. 07-2486

consideration of each defendant’s circumstances, a sen-
tencing court must admit and consider all relevant mitigat-
ing 

. In that case, the state trial
judge stated that he could not be persuaded by the fact
that Eddings was sixteen years old at the time of the
crime. The judge continued, “Nor can the Court in fol-
lowing the law, in my opinion, consider the fact of this
young man’s violent background.” 

The
Supreme Court remanded the case for the state courts
to consider all relevant mitigating evidence and weigh it
against the evidence of the aggravating circumstances,
asserting, “Just as the State may not by statute preclude
the sentencer from considering any mitigating factor,
neither may the sentencer refuse to consider, as a matter
of law, any relevant mitigating evidence.” 

(emphasis in original).
  The rule of Eddings is that a sentencing court may not
exclude relevant mitigating evidence. See also Lockett v.
Ohio, 

, 604 (1978). But of course, a court may
choose to give mitigating evidence little or no weight.

. Allen maintains the trial
court’s sentencing order violates Eddings. He points out
that the order discusses various mitigating circumstances
(such as Allen’s mental retardation and age) to the ex-
clusion of his traumatic childhood, and then states
that it “finds no other circumstances appropriate for
consideration as a mitigating factor.” Allen interprets
these statements together to mean that the trial court did
not consider (and therefore excluded) his traumatic
childhood as an appropriate circumstance for consider-
ation. Were that to be the case, Eddings would mandate
relief for Allen. See, e.g., Wright v. Walls, 

,
No. 07-2486                                               21

942-45 (7th Cir. 2002) (district court properly vacated
Wright’s death sentence pursuant to Eddings because the
sentencing judge impermissibly refused to consider
proposed mitigating evidence related to Wright’s back-
ground).
  Although we acknowledge that the sentencing order
is somewhat cryptic, there is no statement in the sen-
tencing order that expressly indicates that the sentencing
court ignored Allen’s childhood. Cf. 

. Without that, it is plausible that the trial court’s
statement—that it found no other circumstances appro-
priate for consideration as a mitigating factor—means the
trial court did not find Allen’s childhood to be a “mitigat-
ing” circumstance. Cf. 

(re-
jecting as unreasonable Illinois Supreme Court’s determi-
nation that the sentencing judge considered mitigating
evidence of the petitioner’s traumatic history when sen-
tencing court used language of exclusion in rejecting that
evidence). Importantly, that is how the Indiana Supreme
Court saw things. Allen 

. In light of our
standard of review, we must defer to this factual finding.
See, e.g., Todd v. Schomig, 

, 855 (7th Cir. 2002)
(deferring to the Illinois Supreme Court’s conclusion
that the sentencing court did consider all the mitigation
evidence presented even though the record was ambigu-
ous).


D. Miranda claim
  Allen also claims that the trial court’s admission of his
statements to the police, which he contends were taken in
22                                                No. 07-2486

violation of Miranda v. Arizona, 

(1966), violated
his Fifth Amendment rights. In particular, he argues that
the police did not adequately advise him of his Miranda
rights and that his confession was coerced and therefore
involuntary. See Dickerson v. United States, 

, 433-
34 (2000).
   The relevant facts are not in dispute. On July 14, 1987,
Ernestine Griffin’s next-door neighbor found Griffin’s dead
body in her home. She had been murdered with a butcher
knife. The neighbor told officers that a man named
Howard Allen had been at Griffin’s house earlier that day.
That afternoon, two detectives questioned Allen at his
workplace (a carwash) and took him to the station. The
state contends, and Allen does not dispute, that he was not
a suspect then and was free to leave. While he was
being questioned at the station, crime scene investigators
discovered a slip of paper with Allen’s phone number on
it in the victim’s house. At that point, Detective Crooke
read him his Miranda rights, and Allen waived his rights
in writing. Detective Crooke then proceeded to inter-
rogate Allen.
  During this questioning, Detective Crooke told Allen
he did not think he was being truthful, and Allen volun-
teered to take a lie detector test. At 11:00 p.m. that
evening, Allen was given a lie detector test by Detective
Logsdon, a polygraph specialist. Before giving Allen the
test, Detective Logsdon gave another Miranda warning
orally and peppered it with questionable (and largely
untrue) statements. For example, Detective Logsdon
stated that the right to remain silent “sometimes . . . can
No. 07-2486                                            23

help and sometimes . . . can hurt” defendants, wrongly
explained that “counsel” didn’t necessarily mean lawyer
but could be “pretty much anybody,” offered to help the
defendant himself, and stated that the court would
appoint counsel that the defendant could not afford.
  Allen, who did not ask questions during Detective
Logsdon’s speech, signed a second waiver form that was
identical to the first form he had signed with Detective
Crooke. Detective Logsdon administered the polygraph
and interrogated Allen. He threatened Allen with the
death penalty and represented that the state had evidence
against Allen that it did not actually have. Allen told
Detective Logsdon that he had been to Griffin’s house,
that she had chased him from her house with a butcher
knife, and that he had hit her in the face. He denied
hitting her with a toaster or stabbing her with a knife,
and he never confessed to killing her. At 3:00 a.m., Allen
was permitted to sleep and gave a formal statement the
next day after being given a third Miranda warning by
Detective Wright. He stated that he struck Griffin in
the face.
  Although Allen did not object to the introduction of his
statements at trial, he raised Fifth Amendment issues in
his direct appeal. The Indiana Supreme Court considered
his Miranda claims notwithstanding Allen’s failure to
object in the trial court. Allen 

.
  The Indiana Supreme Court cited Miranda and rejected
Allen’s arguments that he was not given an adequate
Miranda warning and that his waiver was not voluntary.
First, although the court acknowledged that Detective
24                                                No. 07-2486

Logsdon’s Miranda warning was “deplorable,” it noted that
Allen had signed a waiver form after properly being
advised of his rights the first time, and then again signed
an identical waiver form after Detective Logsdon’s warn-
ing. Because the two warnings were close in time, and
because Allen had confirmed he understood his rights
before speaking to Detective Logsdon, the court con-
cluded that Detective Logsdon’s warning did “not nullify
the prior, proper advisement Allen received.” 

On this basis the court found that Allen had received
adequate Miranda warnings. Second, the court found
Allen’s waiver of his rights was voluntary. Discussing the
totality of the circumstances, specifically Allen’s “conduct,
apparently normal mental capacity, and extensive crim-
inal record,” the court determined that Allen voluntarily
waived his rights. 

(footnote omitted).7
  Allen’s argument before this court is that the Indiana
Supreme Court’s decision that Detective Logsdon’s
improper Miranda warning and Allen’s subsequent waiver
did not nullify an earlier valid warning and waiver is
contrary to Supreme Court authority. We disagree.
  At the outset we note that Allen does not dispute that
he twice waived his rights pursuant to two proper Miranda
waivers. (Recall that Allen was given a Miranda warning
when he first became a suspect, and then again the


7
  We note that Allen did not argue, either here or before the
state courts, that his mental retardation had any effect on the
knowing, intelligent, or voluntary nature of his waiver. So we
do not consider it.
No. 07-2486                                                  25

next day before he gave a statement to Detective Wright.)
Nor does he dispute the Indiana Supreme Court’s finding
that the first of those two waivers was made voluntarily.8
See Allen 

. Instead, Allen focuses
exclusively on his encounter with Detective Logsdon,
which occurred in between those two warnings, and
argues that the encounter tainted Allen’s prior and sub-
sequent waivers.
  Rather than citing any case law from the Supreme
Court that directly supports this proposition, Allen
directs our attention to the Eleventh Circuit’s opinion in
Hart v. Attorney General of State of Florida, 

(11th
Cir. 2003). Hart held that a defendant’s waiver was the
product of deception where police officers made state-
ments that contradicted their earlier Miranda 

. AEDPA, however, requires us to look at
Supreme Court authority for “clearly established federal
law,” and the Supreme Court has not established a rule
that would give us clear guidance on this issue. See, e.g.,
Duckworth v. Eagan, 

(1989) (officer’s mis-
statement of state law did not invalidate Miranda waiver);
Jackson v. Frank, 

, 664 (7th Cir. 2003) (“the
uncertainty after Duckworth as to how to balance . . . the
veracity of an officer’s statement of state law and the
provision of proper Miranda warnings-prevents this
court from concluding that the [state] courts unrea-
sonably applied clearly established federal law.”). So we



8
 The Indiana Supreme Court did not discuss the third Miranda
waiver.
26                                              No. 07-2486

are unable to find that the decision of the Indiana
Supreme Court was “contrary to” clearly established
federal law as determined by the Supreme Court.
  Turning to whether the Indiana Supreme Court unrea-
sonably applied clearly established federal law to this
case, we come up equally short. Allen argues that Detec-
tive Logsdon’s conduct coerced him into making state-
ments and involuntarily waiving his rights. Pursuant to
Supreme Court authority, a “defendant may waive effectu-
ation” of the rights conveyed in the Miranda warnings
“provided the waiver is made voluntarily, knowingly and
intelligently.” Moran v. Burbine, 

, 421 (1986)
(quoting 

, 475). The voluntariness
test takes into consideration “the totality of all the sur-
rounding circumstances—both the characteristics of the
accused and the details of the interrogation.” Schneckloth
v. Bustamonte, 

, 226 (1973). These circum-
stances may include the length of the interrogation, the
defendant’s maturity, education, and mental health, as
well as whether the defendant was advised of his
Miranda rights. Withrow v. Williams, 

, 693-94
(1993). But the element of coercion is “crucial” to a deter-
mination that a confession was involuntary. Id.; Colorado
v. Connelly, 

, 167 (1986) (“coercive police
activity is a necessary predicate to the finding that a
confession is not ‘voluntary’ ”).
  Here, the Indiana Supreme Court considered the cir-
cumstances surrounding Allen’s interrogation and found
that there was no 

(dis-
cussing Allen’s first voluntary waiver two hours before
No. 07-2486                                           27

the second waiver, his conduct during the interrogation,
his “apparently normal mental capacity,” and his “ex-
tensive criminal record” and familiarity with the inter-
rogation process). We are not able to say that finding
was “objectively unreasonable.” 

(quoting Lockyer v. Andrade, 

(2003)).


                  III. CONCLUSION
  The judgment of the district court is A FFIRMED in part
and R EVERSED in part. We R EMAND the case for further
proceedings consistent with this opinion.




                         3-11-09