Gilbert, Alex G. v. Merchant, Jay ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3571
ALEX GILBERT,
Petitioner-Appellant,
v.
JAY M. MERCHANT, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 C 2388—David H. Coar, Judge.
____________
ARGUED NOVEMBER 29, 2006—DECIDED JUNE 8, 2007
____________
Before BAUER, CUDAHY, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. At the age of fifteen, Alex
Gilbert pleaded guilty to first degree murder in the Cir-
cuit Court of Cook County, Illinois, and was ordered to
serve a prison term of thirty years. After exhausting his
state-court remedies, Gilbert filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, contending
that his trial counsel was ineffective in failing to seek the
suppression of his post-arrest statement, which acknowl-
edged his involvement in the crime. Gilbert was fourteen
years old at the time of his arrest, and both his con-
fession and the interrogation that preceded it took place in
the absence of an attorney, parent, or other friendly adult.
2 No. 05-3571
On that basis, Gilbert contends that his statement was
involuntary and would have been suppressed; had his
attorney moved for and obtained the suppression, Gilbert
alleges, he would have gone to trial rather than pleading
guilty. The district court denied Gilbert’s habeas petition.
We affirm.
I.
Gilbert’s murder conviction arose from the killing of
college student Kevin Heard in 1992. Heard was shot
because he was mistakenly believed by gang members
to be affiliated with a rival gang. Gilbert did not fire the
shot that killed Heard, but he was the individual who
identified Heard as a rival gang member and, if the
State’s evidence is credited, urged his fellow gang mem-
bers to shoot Heard.
Heard was shot in Chicago late in the evening of July 4,
1992. He was on his way to a barbeque along with two
friends, Andrea Lanier and Calvin Stringer. Lanier and
Stringer were driving to the barbeque together in one car,
while Heard was following them in his mother’s car. The
barbeque was taking place in the 8400 block of South
Throop Street in Chicago.
When the cars arrived in the 8400 block of Throop Street
just after midnight, Lanier and Stringer stopped their car
in the middle of the street to locate the address of the
barbeque and look for a parking space, and Heard stopped
behind them. Gilbert, a member of the Blackstone street
gang, was standing on a sidewalk nearby with other gang
members. When Heard’s car stopped, Gilbert walked up
to the car and noticed that Heard was wearing a baseball-
style cap with the bill of the cap tilted toward his right
ear. Gilbert knew that members of the Disciples, a rival
street gang, wore their hats in this fashion. When someone
No. 05-3571 3
on the sidewalk asked Gilbert whether the driver of the
car was a Disciple, Gilbert responded in the affirmative,
saying “that’s folks.” (“Folks” is a slang term often used to
describe Disciple members.) Blackstone gang member
Joseph Owens then emerged from a nearby gangway and
fired twice at Heard’s car with a .45-caliber weapon.
Monica Collier was visiting relatives in the 8400 block of
South Throop and moments before the shooting had
returned to her parked car to retrieve a radio and cassette
tapes. While walking to her car, she had observed several
individuals she knew to be Blackstone gang members
milling about on the sidewalk. As she was retrieving the
tapes and radio from the car, two cars drove up and
stopped next to her car. Collier saw Gilbert, who was
carrying a crutch in his hand, walk up to the second of
the two cars, point the crutch at the car, and call out
“that’s folks” to the other gang members standing on the
sidewalk. Gilbert also yelled out “pop him” or “cap him” or
words to that effect. Collier then witnessed Owens, who
was standing near a gangway at the side of 8437 South
Throop, fire a handgun at the second car. Collier ducked
down and saw the two cars next to hers speed off.
Lanier and Stringer had noticed someone approach their
cars from the vicinity of 8437 South Throop and had heard
someone call out “Cap his ass!” When they heard the two
gunshots, they quickly drove off with Heard close behind
them.
Moments later Lanier and Stringer noticed that Heard
was flashing his headlights at them. They pulled over,
walked back to Heard’s car, and found him slumped over.
Heard had been shot in the back. They took Heard to
a hospital, where he died later that morning.
Investigation over the ensuing twenty-four hours led the
police to Gilbert and Owens. The rear window of Heard’s
car had been shattered, and crime scene technicians
4 No. 05-3571
found broken glass in the street in front of 8443 South
Throop. They also recovered a .45-caliber bullet casing
from the gangway next to 8437 South Throop. Police
detectives questioned Collier, who identified the shooter
as a man she knew as “Joe” and gave them a description of
the individual with the crutch who had called out “that’s
folks.” Police also spoke with Abdula Tate, who told them
that a male youth by the name of “Alex” had been using
her crutches at the time of the shooting. Tate’s general
description of Alex as an African-American male of me-
dium height and aged fourteen to fifteen corresponded
with the description Collier had given of the individual
who had pointed a crutch at Heard’s car. A records check
subsequently revealed that both Owens and Gilbert
previously had been arrested in a joint raid on 8501 South
Throop Street conducted by Chicago police and the fed-
eral Bureau of Alcohol, Tobacco, and Firearms. The
information that police had in their records concerning
Gilbert’s appearance was consistent with the descrip-
tions that Collier and Tate had provided.
At 9:30 on the morning of July 6, police arrived at
Gilbert’s home (one block east of the shooting) and ar-
rested him. Gilbert was alone in the house at that time.
Police officers read Gilbert his Miranda rights in the
presence of a youth officer before transporting him to
Area 2 headquarters for questioning.
Over the next nine hours, police interrogated Gilbert and
ultimately secured his confession. A youth officer was
present during the questioning, but so far as the record
reveals the officer did not consult with Gilbert or take any
affirmative steps to protect his interests. Gilbert at first
denied any involvement in the shooting, claiming that
he had been in Dalton, Illinois at the time. However, at
approximately 12:30 p.m., Gilbert was placed in a lineup
along with three other African-American male teens (all
of whom were seventeen years old). On viewing the
No. 05-3571 5
lineup, Collier identified Gilbert as the individual who
had walked up to Heard’s car, pointed a crutch at the car,
and called out both “that’s folks” and words to the effect of
“shoot him.” Police subsequently advised Gilbert that a
witness could place him at the scene of the shooting.
At approximately 6:30 p.m., after he was again advised
of his Miranda rights, Gilbert gave a statement to an As-
sistant Cook County State’s Attorney (“ASA”). A police
detective and a youth officer were among those present.
Gilbert indicated that he was fourteen years old and that
he had been a member of the Blackstone gang for about
two years. Gilbert acknowledged that at or around mid-
night on July 4, 1992, he and other gang members were
hanging out in front of the residence located at 8437
South Throop Street, where one of the gang members
lived. Gilbert was playing with crutches that belonged to
a friend. Two cars pulled up and stopped in the street.
Gilbert walked up behind the second car and noticed that
the driver was wearing a baseball cap in the manner of
a Disciples gang member. Someone called out to ask
whether the driver was a Disciple, and Gilbert responded
that he was. “Joe,” a higher-ranking member of the
Blackstone gang, then ran out from the gangway along
side of the residence at 8437 South Throop holding a .45-
caliber handgun. Gilbert had seen that gun two days
earlier when the gang member who lived at that ad-
dress had been asked to hide it. “Joe” fired a shot at
the car, and Gilbert saw the driver duck down and then
sit back up. “Joe” then fired a second shot, and again
Gilbert saw the driver duck down; this time, however, he
did not see the driver sit up straight. The two cars then
drove off.
In his statement, Gilbert acknowledged each of his
Miranda rights and indicated that he understood them.
He denied the use of alcohol or drugs at the time of his
6 No. 05-3571
statement. He indicated that he had been treated well by
both the police and the ASA who took his statement. He
acknowledged that he had been given food and drink
and that he had been able to use the bathroom. He re-
ported that he had not been threatened, nor had he
been promised anything in exchange for his statement.
He acknowledged his understanding that the ASA was
not his attorney and that he could be charged as an adult.
Gilbert signed each page of his transcribed statement, as
did the ASA, police detective, and youth officer who were
present when he gave the statement.
Meanwhile, Gilbert’s mother, Theresa Jackson, had
learned of her son’s arrest that afternoon and had arrived
at police headquarters at approximately 2:30 p.m. (Jackson
had learned of the arrest from a neighbor; the police
themselves evidently had not attempted to notify her.) She
would later submit an affidavit indicating that she re-
peatedly asked to see her son, but was told she could not
do so because he was being questioned. At approximately
7:00 p.m., she saw officers escort her son from the inter-
view room to the jail. She averred that Gilbert told her
that the police had made him “sign something” and urged
her to call a lawyer.
A medical examiner later determined that Heard had
died from a gunshot to his back. The examiner recovered
a .45-caliber slug from Heard’s body.
Gilbert was charged as an adult with first degree
murder based on an accountability theory. See McFowler
v. Jaimet, 349 F.3d 436, 438-39, 447-48 (7th Cir. 2003). On
November 10, 1993, Gilbert, who by then had turned
fifteen years old, pleaded guilty to this charge. He was
admonished of his trial rights, signed a written waiver of
his right to a jury trial, and informed the court that he
was “[p]leading guilty of [his] own free will.” R. 28 at C38.
The prosecutor summarized the evidence against Gilbert,
No. 05-3571 7
to which he had stipulated. That evidence included
Gilbert’s confession, the eyewitness testimony and identifi-
cation of Gilbert by Collier, and forensic evidence from the
medical examiner and a weapons expert. Id. at C38-C52.
After this evidence was summarized, the trial judge and
prosecutor both asked Gilbert whether these were the
facts to which he was pleading guilty, and Gilbert twice
answered in the affirmative (the second time under oath).
Id. at C52. After Gilbert indicated that he understood his
rights, the consequences of changing his plea, and the
possible penalties he faced and that he still wished to
plead guilty, the trial court found that his plea was
both knowing and voluntary and supported by the evid-
ence and accepted the plea. Id. at C53. After hearing
from the victim Heard’s mother, the court sentenced
Gilbert to an agreed-upon term of thirty years. Id. at C60.
Gilbert did not seek to withdraw his plea nor did he ap-
peal his conviction or sentence.
Three years later, however, Gilbert filed a pro se petition
for post-conviction relief in the state trial court. Among
other points, Gilbert asserted that the police had ques-
tioned him without a parent present, that he was denied
consultation with an attorney although his mother repeat-
edly had asked for one, and that his confession was
inadmissible. R. 14 Ex. A. The court appointed an attor-
ney to represent Gilbert in the post-conviction proceed-
ing, and Gilbert’s counsel then filed a supplemental
petition on his behalf. The supplemental petition asserted
that Gilbert’s confession was involuntary given that
Gilbert was questioned in the absence of (and without
notice to) his mother, that Gilbert’s trial counsel was
ineffective in failing to seek the suppression of his con-
fession, and that Gilbert’s guilty plea was itself involun-
tary to the extent that the factual basis for his plea
included his allegedly involuntary confession. R. 14 Ex. B.
Gilbert’s mother submitted an affidavit in support of the
8 No. 05-3571
supplemental petition in which she averred that she
went to the police station at 2:30 p.m. on the date of
Gilbert’s arrest and interrogation, that she asked to see
her son and was told she could not see him while he was
being questioned, that she saw her son as he was being
escorted from the interview room to jail, that Gilbert
told her that he had not done anything and that he had
been made to sign something, and that she should call a
lawyer. See id. at C20-C21.
On the State’s motion, the post-conviction court dis-
missed Gilbert’s petition (as supplemented by his ap-
pointed counsel) without conducting an evidentiary
hearing. The court held in the first instance that because
Gilbert had not sought to withdraw his guilty plea on a
timely basis, it lacked authority to review anything but
jurisdictional issues, and Gilbert had raised no such
issues. See R. 14 Ex. D. at 5-6. Alternatively, assuming
that it was empowered to reach the merits of Gilbert’s
petition, the court found no basis on which to disturb his
conviction. On review of the plea transcript, the court
found no indication that his plea was “anything other
than voluntary.” See id. at 6. Gilbert’s contention that his
confession was involuntary was not sufficient to demand
further inquiry, including an evidentiary hearing. Id. Even
assuming that the authorities had deliberately and
improperly denied Gilbert access to his mother during
questioning as he alleged, interrogation in the absence
of a parent was not alone enough to show that his con-
fession was illegally obtained, “and that is from my
reading of all these documents essentially all that he is
claiming.” Id. Finally, even if Gilbert’s trial counsel
deprived him of effective assistance in failing to move for
the suppression of his confession, Gilbert had not estab-
lished prejudice, because his guilty plea was based not only
on his confession, but also on independent evidence that
included eyewitness testimony. Id. Gilbert appealed.
No. 05-3571 9
The Illinois Appellate Court affirmed. People v. Gilbert,
No. 1-99-3363 (Ill. App. Ct. Oct. 30, 2001) (unpublished
order) (R. 14 Ex. F) (hereinafter cited as “App. Ct. Order”).
The appellate court agreed with Gilbert that the lower
court had erred in believing that it lacked jurisdiction to
entertain Gilbert’s claims on their merits in the absence
of a motion to withdraw his guilty plea. Id. at 8. However,
it rejected Gilbert’s contention that the court was obliged
to conduct an evidentiary hearing before disposing of his
post-conviction petition. Only a substantial showing
based on the original record and any affidavits filed in
support of the petition that the petitioner’s constitutional
rights had been violated would necessitate an evidentiary
hearing, the appellate court reasoned. Id. at 9. The record
in this case lent no support to the notion that Gilbert’s
guilty plea was not voluntary and knowing. Id. at 10.
As for Gilbert’s contention that his attorney was ineffec-
tive in failing to seek suppression of his confession, Gilbert
would have to show both that a motion to suppress
would have been granted on the ground that his statement
was involuntary and that the outcome of the trial proceed-
ing would have been different. Id. at 10-11. In the court’s
view, Gilbert’s limited challenge to his confession did not
call its voluntariness into question. Id. at 12. The court
noted that the voluntariness of a defendant’s statement
turns on the totality of circumstances, with the relevant
factors including the defendant’s age, education, intelli-
gence, experience and physical condition; the duration of
the questioning; whether the defendant was advised of
his constitutional rights; whether the defendant was
threatened, enticed with promises, or coerced; and wheth-
er the defendant was induced to speak by police deception.
Id. at 11. For juveniles, additional considerations in-
clude the time of day during which the youth was ques-
tioned and the presence or absence of a parent or other
friendly adult. Id. at 11-12. Gilbert had made no argument
10 No. 05-3571
as to any of these factors on appeal or in the lower court
except as to the absence of his mother (and his inability to
speak with her) during questioning, which he maintained
was sufficient in and of itself to render his statement
involuntary. Id. at 12. In that regard, the appellate court
observed, Gilbert was wrong on the law: the absence of
a parent during the questioning of a juvenile does not
automatically render the juvenile’s statement invalid, but
rather is one factor that bears on the voluntariness of the
statement. Id. at 12. Gilbert had not identified any other
factor calling into question the voluntary nature of his
statement. Id. at 13. Thus, Gilbert had not demonstrated
that a challenge to the voluntariness of his statement
would have been successful. Id. at 13. The court conse-
quently had no reason to question the efficacy of Gilbert’s
trial counsel.
The court also found that Gilbert had not shown that
he was prejudiced by his attorney’s omission to seek
suppression of his statement. Apart from Gilbert’s con-
fession, the stipulated evidence showing Gilbert’s complic-
ity in Heard’s murder was sufficient to supply a factual
basis for the plea. Id. Gilbert’s post-conviction petition
was therefore properly dismissed. Id.
Gilbert filed a petition for leave to appeal to the Illinois
Supreme Court, which that court denied. R. 14 Ex. H.
It likewise denied his request for reconsideration. R. 14
Ex. J.
Gilbert then sought a writ of habeas corpus from the
district court, renewing his argument that his trial counsel
was deficient in failing to seek suppression of his confes-
sion; but the district court denied his request. Assessing
the voluntariness of Gilbert’s confession, the district court
noted the need for “ ‘special caution’ ” where juvenile
confessions are concerned. R. 30; Gilbert v. Welborn, 2005
WL 1458063, at *5 (N.D. Ill. June 16, 2005) (quoting In re
No. 05-3571 11
Gault, 387 U.S. 1, 45, 87 S. Ct. 1428, 1453 (1967)). The
court found it “deeply troubling, even alarming” that
Gilbert’s mother sat at the police station for hours, unable
to see her son, until the authorities had finished question-
ing him and his confession had been secured. Id. None-
theless, the court was not persuaded that the Illinois
Appellate Court’s determination that Gilbert’s confession
was voluntary (and thus would not have been sup-
pressed had his counsel pursued that relief ) was either
contrary to Supreme Court precedent or involved an
unreasonable application of that precedent, as the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)
requires before habeas relief may be granted. See 28 U.S.C.
§ 2254(d)(1).
The Seventh Circuit has stated that the absence of
an interested adult when a juvenile confesses “cannot
be deemed dispositive.” Hardaway [v. Young], 302 F.3d
[757,] at 765 [(7th Cir. 2002)]. As in the Hardaway
case, Petitioner was only fourteen years old when he
was arrested and brought to the police station for
interrogation. He was questioned without a parent
present over a period of almost ten hours between 9:30
a.m. and 7:00 p.m. He stated in his confession that he
was given food and drink and was not mistreated or
coerced. The state appellate court examined all of
these factors and noted that Petitioner “made no
argument in the trial court nor on appeal with re-
spect to any of the factors listed above except that he
was not allowed to speak with his mother before or
during questioning.” Gilbert, No. 99-3393, slip op. at
12. Petitioner does not allege that he was not given his
Miranda warnings or that he did not understand
them. He does not allege that he was physically
threatened or mistreated. It is true that a fourteen
year old, alone in an interrogation room without a
parent present, may experience psychological and
12 No. 05-3571
emotional pressure that an older, more mature adult
would not. But the AEDPA does not permit a federal
court to conduct such a searching review of the state
court decisions. The state court applied the correct
legal standard and weighed the Petitioner’s argu-
ments. There is insufficient evidence in the record
before us to find that the state court was unreasonable
when it determined that the Petitioner’s confession
was not involuntary.
2005 WL 1458063, at *5. The district court likewise
sustained as reasonable the appellate court’s further
determination that Gilbert was not prejudiced by his
attorney’s alleged ineffectiveness in not moving to sup-
press his confession. Although the district court noted
that the appellate court had applied a possibly incorrect
standard—asking whether there was an adequate factual
basis for Gilbert’s guilty plea apart from his confession,
rather than whether there was a reasonable probability
that Gilbert would have gone to trial in lieu of pleading
guilty had his confession been suppressed—the error
was of no moment. Id. at *6. The court found that Gil-
bert had alleged no facts which gave rise to a reasonably
probability that he would have opted for trial over a guilty
plea had his attorney successfully pursued a motion to
suppress his confession. Id. Although Gilbert asserted
that he would have gone to trial, that allegation was
unsupported by an affidavit from his trial counsel or any
other comparable evidence, and the record did not sug-
gest that the other evidence of Gilbert’s guilt was so weak
that a reasonable defendant in Gilbert’s position would
have elected trial over a plea. Id.For these reasons, the district court denied Gilbert’s
petition for a writ of habeas corpus. Gilbert appealed, and
a member of this court granted him a certificate of
appealability and appointed counsel to represent him in
this appeal.
No. 05-3571 13
II.
Gilbert’s appeal challenges the state appellate court’s
findings as to both prongs of his attorney ineffectiveness
claim. He contends that the appellate court acted unrea-
sonably in finding his confession to have been voluntary,
such that his trial counsel was not obliged to seek its
suppression, based on a sparse evidentiary record. Gilbert
emphasizes that his post-conviction petition, as supple-
mented by his counsel, mounted a broad challenge to the
voluntariness of his confession. Yet, the post-conviction
court dismissed his petition without conducting an eviden-
tiary hearing in order to flesh out the circumstances
surrounding his confession and without rendering find-
ings as to all of the various factors that bear on the
voluntariness of a confession. Gilbert maintains that
without a developed record that casts light on such factors
as his education, background, intelligence, and ability to
comprehend his legal rights and provides more detail as
to what occurred during his interrogation, the state
appellate court could not fully evaluate the voluntariness
of his confession and certainly was in no position to re-
ject his contention that the confession was involuntary. On
the contrary, in his view, what little relevant evidence
there is in the record suggests that his confession was not
voluntary. At a minimum, he believes he is entitled to an
evidentiary hearing in the district court, if not an outright
determination by this court that his confession was
involuntary. With respect to the prejudice prong of his
ineffectiveness claim, Gilbert contends that had his trial
counsel recognized the involuntary nature of his confession
and sought its suppression, the motion would have been
granted and it is reasonably likely in that event that he
would have opted for trial in lieu of pleading guilty. Apart
from his confession, the evidence that he was complicit
in Heard’s murder consisted largely of the (prospective)
testimony of a single eyewitness (Collier) who had identi-
14 No. 05-3571
fied him based on what he asserts was a suggestive line-up
and whose credibility as a witness had not been tested.
Suppression of the confession thus would have limited the
force of the State’s case considerably, and in Gilbert’s
view, that supplies adequate objective support for the
notion that he likely would have gone to trial.
The AEDPA sets the parameters for our review. We
may grant habeas relief only if the state courts’ adjudica-
tion of Gilbert’s ineffectiveness claim resulted in a decision
that either was contrary to, or involved an unreasonable
application of, federal law as determined by the United
States Supreme Court, § 2254(d)(1), or if it produced a
decision that was based on an unreasonable determina-
tion of the facts given the evidence before the state
courts, § 2254(d)(2). A state-court decision is contrary to
Supreme Court precedent if it is inconsistent with the
Supreme Court’s treatment of a materially identical set of
facts, or if the state court applied a legal standard that
is inconsistent with the rule set forth in the relevant
Supreme Court precedent. Bell v. Cone, 535 U.S. 685, 694,
122 S. Ct. 1843, 1850 (2002) (citing Williams v. Taylor, 529
U.S. 362, 405-06, 412-13, 120 S. Ct. 1495, 1519-20, 1523
(2000)). A state-court decision constitutes an unreasonable
application of Supreme Court precedent within the mean-
ing of section 2254(d)(1) when, although it identifies the
correct legal rule, it applies that rule in a way that is
objectively unreasonable. Yarborough v. Gentry, 540 U.S.
1, 5, 124 S. Ct. 1, 4 (2003); Bell, 535 U.S. at 694, 122 S. Ct.
at 1850; Williams, 529 U.S. at 409-10, 120 S. Ct. at 1521-
22. Our own disagreement with a state court’s analysis
is not sufficient to meet this standard; rather, the state
court’s analysis must lie “ ‘well outside the boundaries of
permissible differences of opinion’ ” in order for us to
characterize it as an unreasonable application of Su-
preme Court precedent. Jackson v. Frank, 348 F.3d 658,
662 (7th Cir. 2003) (quoting Hardaway v. Young, 302 F.3d
No. 05-3571 15
757, 762 (7th Cir. 2002)). As we have discussed, the
district court concluded that the Illinois Appellate Court’s
handling of Gilbert’s ineffectiveness claim was neither
contrary to Supreme Court precedent nor involved an
unreasonable application of that precedent, and our
review of the district court’s decision is de novo. E.g.,
Williams v. Bartow, 481 F.3d 492, 497 (7th Cir. 2007).
Gilbert’s request for a writ of habeas corpus is premised
on the claim that his trial counsel did not competently
represent him, thereby depriving him of the effective
assistance of counsel guaranteed him by the Sixth and
Fourteenth Amendments. See Gideon v. Wainwright, 372
U.S. 335, 83 S. Ct. 792 (1963). As the Illinois Appellate
Court recognized, a convicted defendant challenging the
effectiveness of the legal counsel he received must
show both that his attorney’s performance was objec-
tively deficient—that is, outside the range of competent
legal representation—and that he was prejudiced by
the substandard performance. Strickland v. Washington,
466 U.S. 668, 687-696, 104 S. Ct. 2052, 2064-69 (1984);
see also Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113
S. Ct. 838, 842-43 (1993). Gilbert faulted his trial counsel
for failing to recognize that his confession was involuntary
and for not filing a motion to suppress his confession,
which he believes was central to the State’s case against
him and in turn to his decision to plead guilty. In order to
prevail on this claim, then, Gilbert was obliged to show
two things. First, he had to demonstrate that his con-
fession was involuntary, such that his attorney would
have been successful had he sought suppression of the
confession. See United States v. Cieslowski, 410 F.3d 353,
360 (7th Cir. 2005) (“When the claim of ineffective assis-
tance is based on counsel’s failure to present a motion to
suppress, we have required that a defendant prove the
motion was meritorious.”) (coll. cases), cert. denied, 126
S. Ct. 1021 (2006). Such a showing would speak to both
16 No. 05-3571
prongs of the ineffectiveness claim: it would demonstrate
that the failure to file a motion to suppress was objec-
tively unreasonable; and it would supply partial proof of
prejudice, by establishing that the a suppression motion
would have removed Gilbert’s confession from the State’s
case. Second, given that he was convicted based on his
own plea, Gilbert was obliged to complete the demonstra-
tion of prejudice by showing that had his confession
been suppressed, it is reasonably likely that he would
have gone to trial rather than plead guilty. Hill v. Lock-
hart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); see also,
e.g., Bethel v. United States, 458 F.3d 711, 716-17 (7th Cir.
2006), cert. denied, 127 S. Ct. 1027 (2007). The Illinois
Appellate Court, of course, concluded that Gilbert had
made neither showing. The question for us (as it was for
the district court) is whether its decision either was
contrary to Supreme Court precedent or reflected an
unreasonable application of that precedent.
We turn first to the voluntariness of Gilbert’s confession.
Whether a confession was voluntary depends on the
totality of the circumstances surrounding that confession,
including “both the characteristics of the accused and
the details of the interrogation” that resulted in the
confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226,
93 S. Ct. 2041, 2047 (1973). As the district court recog-
nized, the voluntariness of juvenile confessions must be
evaluated with “special care.” Haley v. Ohio, 332 U.S. 596,
599, 68 S. Ct. 302, 304 (1948); see In re Gault, 387 U.S. 1,
45, 87 S. Ct. 1428, 1453 (1967). Relevant considerations
include “the juvenile’s age, experience, education, back-
ground and intelligence, and . . . whether he has the
capacity to understand the warnings given him, the
nature of his Fifth Amendment rights and the conse-
quences of waiving those rights.” Fare v. Michael C., 442
U.S. 707, 725, 99 S. Ct. 2560, 2572 (1979). The length of
time that the juvenile was questioned by the authorities
No. 05-3571 17
and the absence or presence of a parent or other friendly
adult are additional factors that bear on the voluntari-
ness of the juvenile’s confession. Hardaway, 302 F.3d at
762. A juvenile’s ability to consult with a friendly adult
is relevant because, as the Supreme Court explained in
Gallegos v. Colorado, a teenager may not on his own be
able to fully appreciate what is at stake when the police
seek to question him:
[A] fourteen-year-old boy, no matter how sophisticated,
is unlikely to have any conception of what will con-
front him when he is made accessible only to the
police.
...
He cannot be compared with an adult in full posses-
sion of his senses and knowledgeable of the conse-
quences of his admissions. He would have no way of
knowing what the consequences of his confession were
without advice as to his right—from someone con-
cerned with securing him those rights—and without
the aid of more mature judgment as to the steps he
should take in the predicament in which he found
himself. A lawyer or an adult relative or friend could
have given the petitioner the protection which his own
immaturity could not. Adult advice would have put
him on a less unequal footing with his interrogators.
Without some adult protection against this inequality,
a fourteen-year-old boy would not be able to know, let
alone assert, such constitutional rights as he had. . . .
370 U.S. 49, 54, 82 S. Ct. 1209, 1212-13 (1962); see also
A.M. v. Butler, 360 F.3d 787, 800-01 & nn. 10-11 (7th Cir.
2004); Kenneth J. King, Waiving Childhood Goodbye:
How Juvenile Courts Fail to Protect Children from Un-
knowing, Unintelligent, and Involuntary Waivers of
Miranda Rights, 2006 Wis. L. Rev. 431, 432-33, 434-44
(noting the complexity of a decision to waive one’s rights
18 No. 05-3571
and explaining why, given the way in which an adolescent
develops psycho-socially and his brain matures, a juvenile
is ill-equipped to make a knowing and intelligent
waiver without adult assistance). Yet, as we have also
acknowledged, despite Gallegos’ forceful language as to the
importance of a friendly adult, subsequent decisions have
revealed that the absence of a parent or other friendly
presence during interrogation, although it remains an
important consideration, is not dispositive vis-à-vis the
voluntariness of a juvenile’s confession. Hardaway, 302
F.3d at 763-65; see Michael C., 442 U.S. at 724-27, 99
S. Ct. at 2571-73 (adopting totality approach to review of
juvenile confessions); see also Bridges v. Chambers, 447
F.3d 994, 998-99 (7th Cir.), cert. denied, 127 S. Ct. 408(2006); Ruvalcaba v. Chandler, 416 F.3d 555, 561 (7th Cir.
2005), cert. denied, 126 S. Ct. 1039 (2006); King, Waiving
Childhood Goodbye, 2006 Wis. L. Rev. at 448 (noting that
in Michael C., “the Court abandoned reliance on adult
guidance as the measure of the admissibility of a juvenile’s
statement in favor of the ‘totality of the circumstances’ ”).1
Gilbert maintains that the Illinois Appellate Court’s
determination that his confession was voluntary cannot be
deemed reasonable, given that a court must consider
the totality of relevant factors and yet the record in this
case was (and is) silent as to many of those factors owing
to the post-conviction court’s decision not to conduct an
evidentiary hearing. Evaluating the voluntariness of a
1
As we noted earlier, a youth officer was present while Gilbert
was questioned and when he gave his statement. However, such
an officer is no substitute for a parent, attorney, or other friendly
adult, and where, as here, the record does not indicate that the
officer took any steps on the juvenile’s behalf, the officer’s
presence is not a factor that weighs in favor of the juvenile’s
statement being deemed voluntary. See, e.g., Ruvalcaba, 416
F.3d at 561 n.1; A.M., 360 F.3d at 801.
No. 05-3571 19
confession indeed is an “exceedingly sensitive task,”
Jackson v. Denno, 378 U.S. 368, 390, 84 S. Ct. 1774, 1788
(1964), one that requires the trial court to initiate proce-
dures that are “fully adequate to insure a reliable and
clear-cut determination of the voluntariness of the confes-
sion, including the resolution of disputed facts upon which
the voluntariness issue may depend,” id. at 391, 84 S. Ct.
at 1788. In many cases, an evidentiary hearing will be
necessary for the court to reliably determine whether or
not the confession was voluntary in view of the court’s
obligation to consider the totality of the circumstances
surrounding the interrogation. See Michael C., 442 U.S. at
725, 99 S. Ct. at 2572 (“The totality approach permits—
indeed it mandates—inquiry into all the circumstances
surrounding the interrogation.”); King, Waiving Childhood
Goodbye, 2006 Wis. L. Rev. at 450 (“[Michael C.’s] undeni-
ably broad language and its direction to inquire into
the juvenile’s capacity to understand the warnings, Fifth
Amendment rights generally, and the consequences of
a waiver of those rights more specifically, suggests that the
determination of whether a juvenile has knowingly,
intelligently, and voluntarily waived [his] rights will be
a broad, probing inquiry.”). Obviously a hearing will be
compulsory when the relevant facts are disputed.
Jackson, 378 U.S. at 391-92, 84 S. Ct. at 1789.
However, we cannot say that the Illinois Appellate Court
acted unreasonably in proceeding to assess the voluntari-
ness of Gilbert’s confession notwithstanding the limited
state of the evidentiary record. The court recognized that
the voluntariness of the confession must be evaluated on
the totality of the circumstances, and it identified the
range of circumstances that are relevant. App. Ct. Order
20 No. 05-3571
at 11.2 However, the court observed that the exclusive
focus of Gilbert’s arguments in the post-conviction court
and on appeal was on his inability to speak with his
mother before or during his interrogation. App. Ct. Order
at 12. It was undisputed that Gilbert’s mother had not
been permitted to see him at any time prior to his confes-
sion; the only question was the import of his sequestration
from her. Gilbert’s assertion, as the appellate court
understood it, was that (in view of his age) the absence of
his mother during questioning in and of itself compelled
the conclusion that his confession was involuntary. App.
Ct. Order at 12. But as the appellate court correctly
recognized, the absence of a parent is not dispositive: it is
the totality of the circumstances underlying a juvenile
confession, rather than the presence or absence of a single
circumstance, that determines whether or not the confes-
sion should be deemed voluntary. Michael C., 442 U.S.
at 724-27, 99 S. Ct. at 2571-73; Bridges, 447 F.3d at 997,
998-99; Ruvalcaba, 416 F.3d at 560-61; Hardaway, 302
F.3d at 763-65; Stone v. Farley, 86 F.3d 712, 717-18 (7th
Cir. 1996). Indeed, we ourselves have sustained as reason-
able a state court’s holding that a fourteen year-old’s
confession was voluntary notwithstanding the absence of
a friendly adult. Hardaway, 302 F.3d at 766-68. Given
the all-or-nothing nature of Gilbert’s argument, we cannot
say that the Illinois Appellate Court was foreclosed from
ruling on the voluntariness of Gilbert’s confession not-
2
Although the court cited state rather than federal cases, these
cases and the factors they identify as relevant are consistent
with Supreme Court precedent. See Mitchell v. Esparza, 540 U.S.
12, 16, 124 S. Ct. 7, 10 (2003) (per curiam) (“a state court need
not even be aware of [United States Supreme Court] precedents
‘so long as neither the reasoning nor the result of the state-
court decision contradicts them’ ”) (quoting Early v. Packer, 537
U.S. 3, 8, 123 S. Ct. 362, 365 (2002)).
No. 05-3571 21
withstanding the fact that an evidentiary hearing had not
been conducted.
Had Gilbert argued that the absence of his mother
was one of multiple factors that called the voluntariness
of his confession into question (or that his mother’s
absence rendered other factors more important), then it
might not have been possible for the state courts to dispose
of his challenge without the benefit of an evidentiary
hearing to the extent those factors were disputed or the
record shed no light upon them. See Jackson, 378 U.S. at
391-92, 84 S. Ct. at 1789. But the appellate court did not
understand Gilbert to be making a more broad-based
challenge to the voluntariness of his confession, and
having reviewed his pleadings in the post-conviction
proceedings, we cannot say that the appellate court erred
in its understanding. Although Gilbert’s supplemental
petition could have been construed as making a more
broad-based challenge to the voluntariness of his confes-
sion, see R. 14 Ex. B. at C16 (identifying multiple factors
for court “to consider” in evaluating the voluntariness of
Gilbert’s confession, including his lack of experience
dealing with the police), the post-conviction court did
not understand him to be relying on factors other than his
isolation from his mother, see id. Ex. D at 6, and Gilbert
did not contend on appeal that the lower court had con-
strued his claim too narrowly. Beyond his age, Gilbert did
not cite to the appellate court additional circumstances
that, alone or in combination with the absence of his
mother, suggested that his conviction was involuntary. On
the contrary, it was his inability as a youth to be able
to consult with his mother on which Gilbert rested his
argument: “Although the totality of the circumstances
is the relevant inquiry,” Gilbert argued, “the absence of a
parent when the suspect is a juvenile is the principal
component of voluntariness.” Id. at 12. Furthermore, Gil-
bert made no proffer to either the post-conviction court
22 No. 05-3571
or the appellate court as to what additional light he
expected an evidentiary hearing to cast on the voluntari-
ness of his confession. Under those circumstances, it was
not unreasonable for the appellate court to resolve his
claim of involuntariness on the record as it stood rather
than remanding for an evidentiary hearing. See Procunier
v. Atchley, 400 U.S. 446, 451, 91 S. Ct. 485, 488 (1971) (in
order to compel a hearing on the voluntariness of his
confession, a petitioner must show that his version of
events, if true, would compel the conclusion that his
confession was involuntary); see also Humphreys v. Gibson,
261 F.3d 1016, 1024-25 (10th Cir. 2001) (habeas peti-
tioner’s assertion that existing record was insufficient to
establish voluntariness of his confession was not enough to
compel an evidentiary hearing); Lucero v. Kerby, 133 F.3d
1299, 1311-12 (10th Cir. 1998) (petitioner’s suggestion
that, in light of “unanswered” questions concerning
circumstances under which his statements to police were
made, there might be additional facts sufficient to sup-
port his claim of involuntariness that would emerge at a
new hearing, was insufficient to establish his right to such
a hearing); Townsend v. Twomey, 452 F.2d 350, 357-58
(7th Cir. 1971) (possibility that a better-developed record
of circumstances surrounding habeas petitioner’s confes-
sion might have enabled state court to more competently
determine whether his confession was voluntary was not
per se a basis to convene hearing in federal court).
Although the record before the appellate court was
limited and did not speak to a number of relevant consid-
erations (for example, Gilbert’s level of education and
intelligence, and what exactly occurred during the nine- to
ten-hour period in police custody that culminated in
Gilbert’s confession), what it did reveal suggested that
Gilbert’s confession was voluntary. Gilbert was ques-
tioned during daytime hours. As indicated by the con-
fession itself, Gilbert was not mistreated. He was given
No. 05-3571 23
food, beverages, and access to a restroom. He was advised
of his Miranda rights both at the time of his arrest and
immediately prior to his confession; and in giving his
statement, he acknowledged that he understood his
rights and was making the statement of his own free will.
All of these factors point toward the voluntary nature of
the confession, and in the absence of other contrary
evidence—be it of record or proffered by Gilbert in further-
ance of his post-conviction petition—tends to support
the Illinois Appellate Court’s conclusion that the absence
of Gilbert’s mother during questioning did not alone suf-
fice to render Gilbert’s confession involuntary.
For the sake of completeness, we acknowledge that
Gilbert did allege in his original post-conviction petition
that while he was being questioned his mother had
repeatedly asked for an attorney, R. 14 Ex. A; but Gilbert
procedurally defaulted that allegation. Gilbert did not
cite or rely on this allegation in his brief to the Illinois
Appellate Court, R. 14 Ex. D, an omission that the State
expressly cited in its own appellate brief, R. 14 Ex. E at 7.
The Illinois Appellate Court, not surprisingly, did not ad-
dress this possibility. Having failed to argue to the state
appellate court that he was denied access to an attorney
despite his mother’s requests for one, Gilbert cannot rely
on this allegation as a basis to challenge the state court’s
handling of his claim. See Lewis v. Sternes, 390 F.3d 1019,
1025-26 (7th Cir. 2004). Moreover, this allegation finds
no support in the affidavit that his mother filed in sup-
port of his supplemental post-conviction petition. See
R. 14 Ex. B at C20-C21.
In sum, the Illinois Appellate Court’s holding as to the
voluntariness of Gilbert’s confession was neither contrary
to, nor an unreasonable application of, federal law as
determined by the Supreme Court of the United States.
Gilbert’s sole argument to the Illinois Appellate Court
was that, in view of his age, the absence of his mother
24 No. 05-3571
during police interrogation rendered his ensuing con-
fession involuntary. Yet, as the state court correctly noted,
the absence of a parent by itself is not dispositive of the
voluntariness of a juvenile’s confession. Gilbert did not
identify other circumstances calling into question the
voluntary nature of his confession, and what the record
otherwise revealed about Gilbert’s characteristics and
the circumstances surrounding the confession suggested
that his confession was voluntary. Certainly one may
question whether a juvenile as young as fourteen genu-
inely has the capacity to make an informed and voluntary
decision to waive his rights without the guidance of an
adult who has his interests at heart. But unless and until
the Supreme Court breathes new life into its Gallegos
decision and/or qualifies the standard it set forth in
Michael C. for evaluating the voluntariness of juvenile
confessions, our limited authority under the AEDPA
does not permit us to say that a state-court finding of
voluntariness like the one at issue in this case is unreason-
able.
Having reasonably concluded that Gilbert’s confession
was voluntary, the Illinois Appellate Court acted consis-
tently with Supreme Court precedent in concluding that
Gilbert’s ineffectiveness claim was without merit. Absent
a finding that his confession was involuntary and there-
fore subject to suppression, Gilbert cannot show that his
counsel’s failure to file a motion to suppress was objec-
tively unreasonable and therefore deprived him of the
effective assistance of counsel. Moreover, Gilbert’s case for
prejudice presumes that his confession would have
been suppressed on his counsel’s motion and that this
would have so weakened the State’s case that he likely
would not have pleaded guilty. The Illinois Appellate
Court’s reasonable determination that his confession was
voluntary precludes him from establishing prejudice in this
way. See Cieslowski, supra, 410 F.3d at 360.
No. 05-3571 25
III.
The district court correctly denied Gilbert’s petition for
a writ of habeas corpus. Gilbert’s claim that his trial
counsel was ineffective for failing to seek the suppression
of his confession as involuntary required him to show,
among other things, that his confession was in fact invol-
untary and would have been suppressed as such. However,
the Illinois Appellate Court deemed his confession volun-
tary, and its decision in that regard was neither contrary
to United States Supreme Court precedent nor derived
from an unreasonable application of that precedent. The
state court therefore reasonably concluded that Gilbert
was unable to establish that he was prejudiced by his
attorney’s failure to seeking suppression of the confession.
We thank Gilbert’s appointed attorneys for their vigorous
and conscientious advocacy on his behalf.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-8-07