Aris Etherly v. Randy Davis ( 2010 )

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
October 15, 2010
Before
WILLIAM J. BAUER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 09-3535
ARIS ETHERLY, Appeal from the United States District
Petitioner-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 07 C 0057
RANDY DAVIS, Warden,
Respondent-Appellant. Elaine E. Bucklo,
Judge.
ORDER
On consideration of the petition for panel rehearing and suggestion for rehearing en
banc filed by Petitioner-Appellee on September 8, 2010, the opinion issued in the above-
entitled case on August 25, 2010, is hereby AMENDED as follows:
Page 15, line 16, the following sentence is added to the beginning of the paragraph: “In
other words, while the Illinois court erred in finding that DiGrazia’s presence militated
in favor of voluntariness, this lone error is not of such magnitude as to result in an
unreasonable application of Supreme Court precedent under AEDPA. See Hardaway, 302
F.3d at 763.“
Page 15, lines 16-19, the following sentence is deleted: “In other words, the youth officer
does not, and should not, play the role of a lawyer to the minor. The officer’s presence is
more than what is required by law to safeguard against any abuse of process or
coercion.”
No. 09-3535 Page 2
Page 15, lines 21-22, the following phrase is deleted: “and was incorrect in concluding
that the state appellate court unreasonably weighed its impact”
Page 17, line 16, the following sentence is added to the beginning of the paragraph: “The
Illinois Appellate Court considered the appropriate factors in coming to its
voluntariness determination and, although it erred in one respect, it did not
unreasonably apply Supreme Court precedent. See Hardaway, 302 F.3d at 763.”
Page 17, line 16, the following sentences are deleted: “The Illinois Appellate Court did
not fail to consider relevant material factors or grossly miscalculate the balance.
Therefore, in light of the fact that Etherly was read his rights several times and
understood them, was questioned for a very limited period of time, and was not
coerced, we conclude that the Illinois Appellate Court’s determination that Etherly’s
statement was voluntary under the totality of the circumstances did not fall well outside
the boundaries of permissible differences of opinion. It therefore was not objectively
unreasonable.”
No judge in active service has requested a vote on the petition for rehearing en banc and
the judges on the panel have voted to deny rehearing. It is, therefore, ORDERED that
rehearing and rehearing en banc are DENIED.