Randy Davis, who became warden after this appeal was filed, 

has been substituted for Gregory Schwartz, as the appellant.

See Fed. R. App. P. 43(c)(2).

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3535

ARIS ETHERLY,

Petitioner-Appellee,

v.

RANDY DAVIS, Warden,



Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 0057—Elaine E. Bucklo, Judge.

ARGUED DECEMBER 11, 2009—DECIDED AUGUST 25, 2010

Before BAUER, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge. This appeal arises from the district court’s decision to grant Aris Etherly’s petition for

habeas corpus relief pursuant to 28 U.S.C. § 2254. The

district court reviewed the Illinois Appellate Court’s

determination that Etherly’s inculpatory statement to
2 No. 09-3535

the police was voluntary. Based on the applicable “totality

of the circumstances” test, the district court ruled such

determination by the appellate court was objectively

unreasonable. As a result of this ruling, the district court

granted Etherly’s habeas corpus petition, denied the

state’s motion to stay the judgment pending appeal, and

ordered the state to either retry or release Etherly

within 120 days.

The state appealed the denial of its motion for a stay

of release and we heard oral arguments on that issue,

after which we granted by per curiam opinion the

state’s motion for a stay. Etherly v. Schwartz, 590 F.3d 531

(7th Cir. 2009). We found that because it was not reasonably likely that we would affirm the district court’s

decision, the traditional factors regulating the issuance

of a stay outweighed Etherly’s presumption in favor of

release pending appeal. We now reverse the grant of

habeas corpus relief.

I. BACKGROUND

On the night of July 13, 1995, in Chicago, Illinois, thenfifteen-year-old Aris Etherly and several other members

of the Gangster Disciples street gang got into a car

and drove around looking to shoot and kill members of

a rival gang, the Vice Lords. Jeremy Rush and Henry

Wingard were standing on Wingard’s front porch when

the Gangster Disciples’ car approached. Wingard was

wearing a cap with the brim turned to the left, signifying

that he was a member of the Vice Lords. When the

car’s occupants started shooting, Wingard safely ducked
No. 09-3535 3

inside the house, but Rush was not so fortunate. Rush

was fatally shot in the head.

Four days after the shooting, Chicago police officers

arrived at Etherly’s house between 5:00 and 5:30 in the

morning. When Etherly’s father answered the door, police

noticed that a group of people were, given the early

hour, suspiciously gathered in the home. The officers

informed the father that they were investigating a

shooting and wanted to interview Etherly. There is some

dispute concerning the details of this conversation.

The father claimed that the officers were vague, did not

inform him where they were taking his son, and that

they said that Etherly could be picked up in an hour.

In contrast, Detectives Golab and Spencer recounted

telling the father that they were taking Etherly to their

Area 2 Detective Division office on 111th Street, offered

for the father to follow them to the station, and provided

the father with a business card. Regardless of what

Etherly’s father said to the police or what they said to

him, the series of events that followed are undisputed.

The officers arrived at the station around 6:00 a.m.

with Etherly in tow. Etherly was not interviewed until

8:00 a.m., at which time Youth Officer Frank DiGrazia

arrived. With Officer DiGrazia in the room, Detective

Spencer first read Etherly his Miranda rights and Etherly

stated that he understood those rights. Detective Spencer

then questioned Etherly. Etherly initially denied any

involvement in the shooting. At no time throughout

the day did Officer DiGrazia make an attempt to speak

to Etherly.
4 No. 09-3535

With no information forthcoming from Etherly, the

interview concluded after thirty minutes. Etherly then

requested to use the bathroom, and he was escorted

there by an unidentified uniformed officer. Upon his

return from the restroom, Etherly requested to speak to

Detective Spencer. DiGrazia was not present during

this second conversation. Etherly told Detective Spencer

that he wanted to show him where the guns involved

in the fatal shooting were hidden. Detective Spencer

then asked Detective Golab to meet with Etherly, and

Detective Golab reminded Etherly of his Miranda rights.

Etherly informed the detectives that the uniformed

officer had told him that he had an obligation to tell

the truth, and that “it would go better for him in court”

if he helped the police to locate the guns. Detective

Golab testified that he told Etherly that “they could not

promise him anything other than to inform the court of

his assistance,” and Etherly indicated that he understood. Etherly then led the detectives to where the

guns were located. The first time the state informed the

trial judge of Etherly’s cooperation was at the hearing

on Etherly’s motion to suppress his statements.

Upon his return to the station, Etherly met with Assistant

State’s Attorney (“ASA”) Joseph Alesia, Detective Golab,

and Officer DiGrazia. Alesia introduced himself to

Etherly and explained that his role was as a prosecutor,

not as Etherly’s attorney. He then advised Etherly of his

Miranda rights, which Etherly claimed to understand.

Etherly requested and made a court-reported statement,

to which he added his own handwritten statement. In

both statements he confessed to his involvement in the

shooting, including the fact that he had fired seven shots.
No. 09-3535 5

During the interview with ASA Alesia, Etherly said that

he had been treated well by the police, that he understood his rights at all times, and that his statement was

voluntary. In response to ASA Alesia’s inquiry into

whether anyone had made any promises in exchange

for Etherly’s statement, Etherly replied that the unnamed

uniformed officer had told him “to get the guns so the

judge would know I helped them.” 

Prior to the suppression hearing, the trial court ordered that Etherly be evaluated by Dr. Phillip Pan, a staff

psychiatrist for Cook County’s Forensic Clinical Services.

In his report, Dr. Pan stated that Etherly was only marginally cooperative with the interview. He opined that

although Etherly was depressed and had borderline

intellectual functioning, he found that Etherly was able

to understand his Miranda rights and knowingly waive

them. The report concluded “that [Etherly] understands

that he is not required to talk to the police, . . . [and] that

he is entitled to have a lawyer present while he is questioned.”

Etherly contested the admission of his statement,

arguing that it had been made involuntarily and unintelligently. Etherly pointed out that his handwritten statement had a number of spelling errors. Also, Etherly’s

father testified that Etherly was illiterate and had been

taking special education classes since the second grade.

He also testified that Etherly had only attended school

through his freshman year of high school, and only

then by supplementing the standard curriculum with a

special tutor. Still, he had failed all his courses. After
6 No. 09-3535

balancing all the evidence, the trial court found that

Etherly’s statement was voluntary. It therefore denied

Etherly’s motion to suppress the statement. 

At trial, Etherly presented a single witness in his defense,

Rebecca George. George, a teacher at the Cook County

Juvenile Temporary Detention Center where Etherly was

held pending trial, testified that Etherly was illiterate.

George stated that Etherly progressed slowly during

phonics lessons. She observed that he had difficulty

knowing the sounds of the letters of the alphabet and

that “he uses words . . . from how he hears other people

use words.” 

The state’s evidence at trial consisted of Wingard’s

testimony about the shooting; Officer Robert Baike’s

testimony that he recovered .380-caliber shell casings

from the murder scene; Detective Golab’s and Detective

Spencer’s accounts of the investigation, including their

interviews with Etherly and his disclosure of the .38-caliber

revolver’s location; forensic specialist Ernest Warner’s

conclusion that the bullet found in Rush’s brain was

fired from the same weapon that fired the .380-caliber

casings found at the murder scene; and then-ASA

Alesia’s testimony regarding Etherly’s inculpatory statement. At the close of trial, the jury found Etherly

guilty of first-degree murder. The court sentenced him

to a forty-year term of imprisonment.

On appeal to the Illinois Appellate Court, Etherly

argued, among other things, that the trial court erred in

finding that his inculpatory statement to the police was

voluntary. The court applied a totality of the circum-
No. 09-3535 7

stances test to determine whether Etherly’s confession

was voluntary. The court stated that the relevant factors

included “the defendant’s age, education, intelligence,

experience, and physical condition; whether he was

advised of his constitutional rights; the existence of

threats, promises or physical or mental coercion; and

whether the confession was induced by police deception.” (Appellant App. at 36.) The court also addressed

the additional factors for determining the voluntariness

of juvenile statements, such as the time of day when

questioning occurred, the presence or absence of a

parent, and the minor’s previous experience with the

court system. The court stated that “[t]he overriding

concern . . . is whether the defendant’s will was overborne.” (Id.) 

The court found that the following factors weighed in

favor of finding that the statement was involuntary:

(1) Etherly was fifteen years old at the time of the statement; (2) Etherly had a lack of intellectual capacity; and

(3) Etherly had no experience with the criminal justice

system. The court then discussed the factors that

weighed in favor of finding the statement voluntary:

(1) Etherly’s father was informed that his son was

wanted for questioning in connection with the shooting;

(2) a youth officer was present during the questioning

and Etherly never requested to confer with the youth

officer; (3) Etherly was read his Miranda rights on

several occasions and he repeatedly indicated that he

understood his rights; (4) prior to Etherly’s inculpatory

statement being made, Detective Golab clarified to

Etherly that no promises could be made and they could
8 No. 09-3535

only inform the judge of his assistance; (5) Dr. Pan

found that Etherly understood his legal rights; and

(6) Etherly was questioned for a limited period of time.

After weighing all of these factors, the appellate court

held that “the trial court’s findings were not against the

manifest weight of the evidence, and the totality of the

circumstances indicate that defendant’s confession was

the result of his own decision and not the result of compulsion or his will being overborne.” (Id. at 39.) The

Illinois Supreme Court subsequently denied Etherly

leave to appeal.

Etherly filed a petition for writ of habeas corpus in

federal district court in which he raised six grounds

for relief, the central argument being that his inculpatory

statement to the police was involuntary. The district

court granted Etherly’s habeas corpus petition on the

ground that Etherly’s statement was involuntary

and that the Illinois Appellate Court’s determination

“amounted to a[n] unreasonable application of the Supreme Court’s ‘totality of the circumstances’ test.” Etherly

v. Schwartz, 649 F. Supp. 2d 892, 903 (N.D. Ill. 2009). The

district court noted that a reasonable application of

that test “compels” the conclusion that Etherly’s statement was involuntary. (Id.)

The state filed a timely notice of appeal to this court. On

appeal, the state argues that the district court erred in

holding that the Illinois Appellate Court applied the

totality of the circumstances test in an objectively unreasonable manner. 
No. 09-3535 9

II. ANALYSIS

We review the district court’s grant of habeas relief

de novo. Northern v. Boatwright, 594 F.3d 555, 559 (7th Cir.

2010). Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), habeas relief may be granted

only when a state court decision is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States” or “was based on an unreasonable

determination of the facts in the light of the evidence

presented.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529

U.S. 362, 404-05 (2000); Morgan v. Krenke, 232 F.3d 562, 565-

66 (7th Cir. 2000). 

A decision is “contrary to” federal law when the state

court applied a rule that “contradicts the governing law”

set forth by the Supreme Court or if the state court

reached a different outcome based on facts “materially

indistinguishable” from those previously before the

Supreme Court. Williams, 529 U.S. at 405-06; see also

Calloway v. Montgomery, 512 F.3d 940, 943 (7th Cir. 2008).

A state court’s application of clearly established federal

law is unreasonable if it identifies the appropriate

standard but applies it to the facts in a manner with

which a reasonable court would disagree. Williams, 529

U.S. at 413; Williams v. Thurmer, 561 F.3d 740, 742-43

(7th Cir. 2009). 

Mere error is insufficient; “[r]ather, in order to trigger

grant of the writ, the state-court decision must be both

incorrect and unreasonable.” Woods v. McBride, 430 F.3d

813, 817 (7th Cir. 2005). Under either prong of the test,
10 No. 09-3535

unreasonableness is judged by an objective standard.

Burr v. Pollard, 546 F.3d 828, 831 (7th Cir. 2008). A decision is not objectively unreasonable unless it falls “ ‘well

outside the boundaries of permissible differences of

opinion.’ ” Starkweather v. Smith, 574 F.3d 399, 402 (7th

Cir. 2009) (quoting Hardaway v. Young, 302 F.3d 757, 762

(7th Cir. 2002)). Further, in performing our evaluation,

we presume the factual findings of the state court to be

correct, unless the petitioner can rebut this presumption

by clear and convincing evidence. 28 U.S.C. § 2254(e)(1);

see also Allen v. Buss, 558 F.3d 657, 661 (7th Cir. 2009).

As a threshold matter, we must identify the “clearly

established Federal law” at issue. For purposes of § 2254,

this phrase “refers to the holdings, as opposed to the

dicta, of [the Supreme Court’s] decisions as of the time

of the relevant state-court decision.” Taylor, 529 U.S. at

412. A determination of whether a confession was involuntary requires an examination of the “totality of the

surrounding circumstances,” including the characteristics of the person in custody and the details of the

interrogation that resulted in the statement. Schneckloth

v. Bustamonte, 412 U.S. 218, 225-26 (1973) (stating that if

a defendant’s confession is not “ ‘the product of an essentially free and unconstrained choice by its maker’ ”

and “ ‘if his will has been overborne and his capacity

for self-determination critically impaired, the use of

his confession offends due process’ ” (quoting Culombe v.

Connecticut, 367 U.S. 568, 602 (1961))). 

This same test applies to confessions by juveniles, but

in those cases confessions are to be evaluated with
No. 09-3535 11

special care. In re Gault, 387 U.S. 1, 45 (1967); Gilbert v.

Merchant, 488 F.3d 780, 791 (7th Cir. 2007) (quoting Haley

v. Ohio, 332 U.S. 596, 599 (1948)). The relevant factors to

consider include “the juvenile’s age, experience, education, background, and intelligence, and . . . whether he

has the capacity to understand the warnings given him, the

nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare v. Michael C., 442

U.S. 707, 725 (1979). Other considerations include the

“length of time that the juvenile was questioned by the

authorities and the absence or presence of a parent or

other friendly adult.” Gilbert, 488 F.3d at 791; see

also Gallegos v. Colorado, 370 U.S. 49, 54-55 (1962). We

will also carefully “scrutinize police questioning tactics

to determine if excessive coercion or intimidation . . .

has tainted the juvenile’s confession.” Hardaway, 302

F.3d at 765.

We recognize, however, that “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 confession should

be deemed voluntary.” Gilbert, 488 F.3d at 793; see also

Hardaway, 302 F.3d at 763-68 (refusing to impose a

per se rule that no child under the age of sixteen may

waive his rights and denying habeas relief even though

a fourteen-year-old’s confession was obtained without

the presence of a friendly adult); Fare, 442 U.S. at 725. 

We find, and there is no dispute, that the Illinois Appellate Court identified and applied the correct governing law to determine whether Etherly’s confession was
12 No. 09-3535

involuntary. The appellate court recognized the correct

totality of the circumstances test and applied the factors

accordingly. Because relief is therefore unavailable

under the “contrary to” prong of § 2254(d)(1), we turn

to whether the state appellate court reasonably applied

that test.

The district court concluded that the state appellate

court’s application of the totality of the circumstances

test was objectively unreasonable. The district court

based its holding on its determination that the state

court either placed too much or too little weight on each

factor involved. For example, the district court stated

it was “more than a bit skeptical” of the weight the appellate court accorded to Etherly’s age, borderline intellectual capacity, and lack of criminal background, which

affected his ability to grasp whether police promised

leniency in exchange for his statement. Etherly, 649

F. Supp. 2d at 899. Further, the district court stated that

the state court placed too much weight on the lack of a

promise of a “specific benefit” in exchange for Etherly’s

assistance, and too little weight on the unidentified officer’s comments to Etherly that he “had a moral obligation” to cooperate, and if he did so, that it would “go

better” for him in court. Id. Contrary to the state

appellate court, the district court opined that Etherly

understood the comments to be a promise, and that the

police knew that such a suggestion was “reasonably

likely to elicit an incriminating response” from Etherly.

Id. at 899-900 (citing Rhode Island v. Innis, 446 U.S. 291

(1980)). The district concluded that unless Etherly
No. 09-3535 13

waived his Miranda rights, Etherly’s statement should

have been inadmissible. 

The district court also said that the Illinois Appellate

Court put too much weight on the lack of coercion and

on the Miranda warnings provided and too little weight

on the passiveness of Officer DiGrazia. According to the

district court, because of Etherly’s age, low intelligence,

lack of experience in the criminal justice process, and the

presence of a passive youth officer, Etherly could not

have made a knowing and intelligent waiver of his

Miranda rights.

We pause to note, however, that whether a petitioner

made a knowing and voluntary waiver of his Miranda

rights is a separate inquiry from a voluntariness claim, see

Edwards v. Arizona, 451 U.S. 477, 483-84 (1981), and

Etherly never raised the “knowing and voluntary”

waiver argument. But because “[i]n evaluating whether

a suspect voluntarily waived his Miranda rights, we

consider the same factors . . . in assessing the overall

voluntariness of a confession,” Ruvalcaba v. Chandler, 416

F.3d 555, 562 (7th Cir. 2005), we will discuss the

district court’s conclusion below. 

The district court’s opinion notwithstanding, the

Illinois Appellate Court properly addressed and considered all of the relevant factors in its analysis. How much

weight to assign each factor on facts similar to those

in Etherly’s case may differ from court to court, and

reasonable jurists may certainly disagree. See Hall v.

Washington, 106 F.3d 742, 748-49 (7th Cir. 1997) (“The

statutory ‘unreasonableness’ standard allows the state
14 No. 09-3535

court’s conclusion to stand if it is one of several equally

plausible outcomes.”). Therefore, unless the state court’s

application of these factors was unreasonable, the grant

of Etherly’s habeas corpus petition must be reversed.

The Illinois Appellate Court evaluated and discussed

the importance of Etherly’s age. Because of his youth,

the court also considered whether a friendly adult was

present. The court discussed Etherly’s father’s awareness of the police interview, his opportunity to come

to the station, and his possession of police contact information. Although his father claimed he was unable to

locate his son for several days after the interview, the

state trial court concluded, and the appellate court

agreed, that the officers’ testimony was more credible. The

court also noted that Officer DiGrazia was present both

during the initial questioning and at the time that Etherly

provided his written confession. The court said that

although the youth officer was passive, Etherly never

took advantage of the opportunity to consult with him. 

The district court, however, disagreed with the appellate court’s finding on this latter factor, commenting

that it “cannot be squared with Supreme Court and

Seventh Circuit jurisprudence,” and it therefore “was

unreasonable for the court to consider [the youth officer]

as a factor favoring a finding of voluntariness.” Etherly,

649 F. Supp. 2d at 900-01. We agree with the district

court that it is unreasonable to conclude that a fifteen-yearold, with no prior criminal experience, should be expected to seek the advice of a youth officer when that

officer does not make his special role known to the
No. 09-3535 15

minor. But in Fare, the Supreme Court “held that a sixteen-year-old could make a statement intelligently

and voluntarily, even without the presence of a friendly

adult.” Ruvalcaba, 416 F.3d at 561; see also Hardaway, 302

F.3d at 763 (“[T]he mere absence of a friendly adult is

by itself insufficient to require suppression of a juvenile

confession.”); Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994)

(reversing the district court’s grant of habeas relief

despite the uncounseled confession of a fourteen-year-old

with below-average intelligence). In fact, “[e]ven refusing a child’s request to have a parent or other

friendly adult (other than a lawyer) present is not

enough to suppress the confession if other factors

indicate that the confession was voluntary.” Hardaway,

302 F.3d at 765 (citing Fare, 442 U.S. at 718).

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. Therefore,

the district court overstated the import of this factor

and was incorrect in concluding that the state appellate

court unreasonably weighed its impact.

The Illinois Appellate Court also recognized and

weighed Etherly’s lack of intellectual capacity. Although

the court concluded that this weighed against admission

of the statement, the court credited Dr. Pan’s testimony

that Etherly understood that he was not required to talk

to the police and that the prosecutor would act upon

any information provided by Etherly. The district court,

however, appearing to engage in a de novo review, found
16 No. 09-3535

that the appellate court only paid “lip service” to this

factor, concluding that the probative value and credibility of Dr. Pan’s report were undermined by the fact

that such report was more than one year old.

The state court’s factual findings are entitled to deference, unless objectively unreasonable in light of the

evidence presented in the state-court proceeding. 28

U.S.C. § 2254(e)(1); Conner v. McBride, 375 F.3d 643, 649

(7th Cir. 2004). Here, the state court reasonably relied

on Dr. Pan’s report in concluding that Etherly understood his rights. Etherly did not present clear and convincing evidence to rebut the state court’s reasonable

reliance on this report. Therefore, the district court erred

in reviewing sua sponte the state court’s findings

regarding the probative value of the report and by

failing to accord proper deference to those findings. The

state court did not give short-shrift to Etherly’s low

intelligence, and its reliance on Dr. Pan’s report was not

objectively unreasonable.

With regard to the remaining factors, the Illinois Appellate Court considered whether police engaged in physical

or psychological coercion and determined that none

existed. The court reasoned that “merely telling [Etherly]

to tell the truth . . . to show the judge he cooperated

does not constitute a promise of leniency nor does it

evidence threats or coercion.” (Appellant App. at 38.)

Further, the court noted that Etherly was given his

Miranda warnings on multiple occasions, including

after the conversation with the unidentified officer, and

he “repeatedly indicated that he understood his rights.”
No. 09-3535 17

(Id. at 37.) The court also observed that Detective Golab

made clear that the police could make no promises. Thus,

despite Etherly’s age, lack of intelligence, and lack of

criminal background, the state court found that the

weight of the evidence, on balance, favored admission

of Etherly’s statement.

We agree with the Illinois Appellate Court that the

interaction with the unidentified police officer did not

rise to the level of coercion. Although we think it obvious

that the officer’s statement was inadvisable, merely

telling somebody to tell the truth is not coercive. See

Johnson, 28 F.3d at 640-45. We also agree with the

appellate court that no specific benefit was promised in

exchange for Etherly’s cooperation, and Detective Golab

made it clear that no promises would be forthcoming.

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.

III. CONCLUSION

The Illinois Appellate Court identified the correct

totality of the circumstances test, considered all relevant
18 No. 09-3535

factors, and made a legally defensible determination

that Etherly’s inculpatory statement was voluntary.

Although not every reasonable jurist would have

reached the same outcome, we hold that the appellate

court’s analysis and conclusion were not objectively

unreasonable under the law. Therefore, Etherly’s petition

for habeas corpus relief should have been denied.

For the foregoing reasons, we REVERSE the judgment

of the district court and REMAND for further proceedings consistent with this opinion.

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