In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2882
A.M., a minor ,
Petitioner-Appellee,
v.
JERRY BUTLER, Superintendent of the
Illinois Youth Center,
Respondent-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 5625—Rebecca R. Pallmeyer, Judge.
____________
ARGUED SEPTEMBER 18, 2003—DECIDED MARCH 2, 2004
____________
Before EASTERBROOK, DIANE P. WOOD, and EVANS, Circuit
Judges.
EVANS, Circuit Judge. In 1993, 83-year-old Anna Gilvis
was savagely beaten and stabbed to death in her home.
Eleven months later, Anthony Morgan,1 who was 10 years
old at the time of the murder, was charged with the crime
and adjudged a delinquent after a 2-day trial in the Cook
1
This is not the petitioner’s real name. We use it only to avoid
awkwardly referring to him by his initials, “A.M.”
2 No. 02-2882
County Court Juvenile Division. Given the paucity of
options available under Illinois law for an 11-year-old
offender, Morgan received a modest sentence—5 years
probation.2 The Appellate Court of Illinois affirmed his
delinquency adjudication, and the state supreme court de-
nied leave to appeal. Morgan then filed a petition for federal
habeas corpus relief which the district court granted.
United States ex rel. A.M. v. Butler, 2002 WL 1348605 (N.D.
Ill.). The State of Illinois appeals.
Before reaching the merits, we address two matters, the
first being whether this appeal is moot because Morgan,
who is now 20 years old, finished serving his probation term
over 4 years ago. Although neither side challenges our
jurisdiction—indeed, in supplemental filings, both insist
that the case is not moot—a federal court at any stage of
the proceedings must, on its own, dismiss a case as
moot when it cannot give the petitioner any effective re-
lief. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Calderon v.
Moore, 518 U.S. 149, 150 (1996). The inability to review
moot cases stems from the requirement of Article III of the
Constitution which limits the exercise of judicial power to
live cases or controversies. Spencer, 523 U.S. at 7. “Federal
courts are without power to decide questions that cannot
affect the rights of litigants in the case before them.” D.S.A.
v. Circuit Court Branch 1, 942 F.2d 1143, 1145 n.2 (7th Cir.
1991) (quoting North Carolina v. Rice, 404 U.S. 244, 246
(1971)).
Here, Morgan was still on probation when he filed his
habeas petition in 1998.3 He completed his probation term
2
After the adjudication, we are told that “A.M. was then detained
in the Illinois Youth Center in St. Charles, Illinois. A.M. fulfilled
this sentence and was released.”
3
His probation status means he was “in custody” at the time he
filed his habeas petition, so he fulfilled the jurisdictional require-
(continued...)
No. 02-2882 3
while his petition was pending in the district court. Al-
though no longer in custody, however, a challenge to a
criminal conviction (or, in this case, a declaration of juvenile
delinquency, which is its equivalent for a child) is not moot
when the defendant continues to face adverse consequences
stemming from its adjudication. Thus, in determining if
Morgan’s petition is moot, we must examine “whether
sufficient collateral consequences of the conviction persist
to give the petitioner ‘a substantial stake in the judgment
of conviction which survives the satisfaction of the sen-
tences imposed on him.’ ” Puchner v. Kruziki, 111 F.3d 541,
543 (7th Cir. 1997) (quoting Carafas v. La Vallee, 391 U.S.
234, 237 (1968)). This standard applies equally to juvenile
adjudications. D.S.A., 942 F.2d at 1145-50.
Applying these principles, we think Morgan’s petition
is not moot. Examining Illinois law, Morgan has a stake
in the outcome of this litigation. For example, one aggravat-
ing factor under Illinois’ Aggravated Unlawful Use of
a Weapon statute is whether a defendant has previously
been adjudicated a delinquent for an act that if committed
by an adult would be a felony. 720 ILCS 5/24-1/6(a)(3)(d);
People v. Marin, 795 N.E.2d 953 (Ill. App. Ct. 1st Dist.
2003). A first-time conviction under this statute is a Class
4 felony. 720 ILCS 5/24-1/6(d). In contrast, without a ju-
venile adjudication as an aggravating factor, the compara-
ble crime would be Unlawful Use of a Weapon, a Class A
misdemeanor. 720 ILCS 5/24-1. The difference in potential
sentences is significant. If treated as a felony, the possible
sentence is 3 years imprisonment. 730 ILCS 5/5-8-1(7). In
contrast, if considered a misdemeanor, the maximum sen-
tence would be less than one year. 730 ILCS 5/5-8-3 (1).
Because Morgan’s delinquency adjudication will, like an
(...continued)
ment of § 2254(a). Spencer, 523 U.S. at 7. However, this does not
mean that he escapes mootness. Id.
4 No. 02-2882
adult criminal conviction, increase his potential punishment
in the future, we agree with the parties that his petition is
not moot.4
The second pre-merits matter is the State’s breach of our
rules in prosecuting its appeal. In large part, the outcome
of this appeal depends on our assessment of how the case
was resolved by the Appellate Court of Illinois. And to
facilitate our review, one of our most important rules,
Circuit Rule 30, requires that important opinions from
other courts be given to us in either an appendix to the
appellant’s main brief or in a separate appendix. Circuit
Rule 30(a) provides that “[t]he appellant shall submit,
bound with the main brief, an appendix containing the
4
Spencer v. Kemna, 523 U.S. 1 (1998), does not lead to a different
conclusion. In Spencer, the Court held that the presumption of
collateral consequences that applies to criminal convictions, see,
e.g., Sibron v. New York, 392 U.S. 40, 55-56 (1968), does not apply
for parole revocations. Spencer, 523 U.S. at 12. As a result, the
petitioner had the burden of establishing that such consequences
exist, something the petitioner could not do. Most relevant to our
inquiry, the Court found insufficient to keep the controversy alive
the fact that the petitioner’s parole revocation remained on his
record and might be used by a future sentencing judge or em-
ployer. Id. at 13. The Court specifically noted that since these
were “nonstatutory consequences,” any higher sentence the
petitioner faced in the future or any adverse employment affects
were “dependent upon ‘[t]he discretionary decisions . . . made by
an employer or a sentencing judge’ . . . .” Id. (internal citation
omitted). Because Morgan faces a statutory consequence, Spencer
is not a good fit for denying consideration of the merits of Mor-
gan’s petition. As a result, it is not necessary to determine
whether the Spencer Court’s decision not to extend the presump-
tion of collateral consequences applies equally to juvenile delin-
quency or if the holding is limited to parole revocation. Cf. id. at
8 (“[T]he first question we confront is whether the presumption of
collateral consequences which is applied to criminal convictions
will be extended as well to revocations of parole.”).
No. 02-2882 5
judgment or order under review and any opinion, me-
morandum of decision, findings of fact and conclusions of
law, or oral statement of reasons delivered by the trial
court . . . .” Circuit Rule 30(b)(4) calls for “[c]opies of all
opinions, by any . . . state appellate court previously
rendered in the criminal prosecution, any appeal, and any
earlier collateral attack.” These materials must be submit-
ted as part of the appendix to the main brief or in a sep-
arate appendix. See Circuit Rule 30(b)(7). The decision of
the Appellate Court of Illinois, the most important decision
by the state courts in this case, falls squarely within our
rule.
The State’s counsel, Lisa Anne Hoffman, signed a cer-
tification saying that her brief contains, in its appendix, “all
of the materials required under Circuit Rule 30(a) and (b).”
This certification was false: the opinion of the Appellate
Court of Illinois is nowhere to be found. As we have said, a
breach of Rule 30 is “not a ‘nit-picky’ violation. Failure to
supply necessary documents goes to the heart of this court’s
decision-making process.” Hill v. Porter Mem’l Hosp., 90
F.3d 220, 225-26 (7th Cir. 1996). The purpose of the rule is
to give us, at our fingertips, the materials we consider most
important to discharging our duties. The materials called
for by Rule 30 “are the tools of decision on appeal,” and
“[c]ompliance with Circuit Rule 30 is essential to proper
performance of the appellate task . . . .” United States v.
Rogers, 270 F.3d 1076, 1084 (7th Cir. 2001). The State’s
failure here is a material breach of our rules.
Sanctions for failure to comply with Rule 30 may include
dismissal of the appeal, see, e.g., Urso v. United States, 72
F.3d 59, 61 (7th Cir. 1995); Mortell v. Mortell Co., 887 F.2d
1322, 1327 (7th Cir. 1989), or imposition of a penalty on the
offending lawyer, including a public rebuke and fine. See,
e.g., In re Galvan, 92 F.3d 582 (7th Cir. 1996); United States
v. Evans, 131 F.3d 1192 (7th Cir. 1997). Although we will
6 No. 02-2882
not dismiss this appeal, when we finish our work we will
return to the question of an appropriate sanction.
Finally, before leaving our pre-merits concerns, we note
another error in the State’s principal brief, plus an argu-
ment that is much ado about nothing. First, on page 4 of its
main brief, when referring to the Illinois Appellate Court
decision (the one not included in any appendix!), the State
says it is a “published decision.” This is wrong. The decision
was not “published.” It is not retrievable on any electronic
database nor is it printed in any book. Second, the State
complains that the district court improperly conducted an
evidentiary hearing on Morgan’s petition. Yet the State fails
to point to any material “use” of the information elicited at
the hearing. Rather, the district court ultimately accepted
the historical facts found by the Illinois Appellate Court, so
where is the harm caused by the federal hearing? Because
none is cited, we dismiss the State’s objection on this point
and now move to the merits of this appeal.
Morgan lived with his mother, Janet Tims, next door to
the house where the elderly Gilvis lived, apparently alone.
On October 5, 1993, she was found dead in her home, the
victim of a terrible crime: she had been beaten with her
cane; her throat was slit; she was tied with a phone cord;
blood was all over the place; and her purse, with its con-
tents spewed out, was found on the kitchen floor.
Police interviewed a number of neighbors after discov-
ering Gilvis’s body. Morgan, who as we said was 10 years
old, was in his backyard when Detective Guy Habiak, who
was in Gilvis’s backyard, conversed with him over a fence.
Morgan, who was with an unidentified adult female, said
that around 7 p.m. the evening before, he saw a black man
walk down the gangway to the back door of the victim’s
home. He then heard a squeaking or pounding noise. He
also said he saw Gilvis an hour later walking down the
street with plastic bags filled with liter bottles. He said he
No. 02-2882 7
helped her carry her bags but did not go into her house. He
said she thanked him and he went home.
It was not until 11 months later that the police again
contacted Morgan, who by then had turned 11 years old.5
Detectives James Cassidy and Edward Schmidt knocked on
Morgan’s door, he answered, and Cassidy told him, “We
need to ask you a few questions involving a murder.” Tims
then came to the door, and the police repeated that they
wanted to question Morgan. Tims allowed the detectives to
speak with her son.
The detectives and Morgan sat in a police car, parked
outside Morgan’s home. The detectives told Morgan they
were investigating Gilvis’s murder and understood that he
had seen someone around the time she was killed. Morgan
then went beyond the statement he gave 11 months earlier
to Detective Habiak. He talked about a man by the name of
Nolan Coleman, who lived in a basement unit of the house
where he (Morgan) lived. Morgan said the man moved a
week and a half after the murder. According to Morgan, on
the night of the murder Coleman asked him to watch his
kids while he “took care of some business.” Morgan also
related that Coleman told two black men that the elderly
white woman next door (Gilvis) had a lot of money and that
she didn’t like black people. Morgan went on to say that he
heard Coleman tell the two men to break in and get the
money and that he (Coleman) would be a lookout. Coleman
then told Morgan to “get out of here if you know what’s
good, get away from the back yard.”
After hearing this story, the detectives asked Tims if they
could take Morgan to the police station to continue their
investigation. Tims agreed. At the police station, Morgan
sat at a desk and looked at photos. He then told an assis-
5
The police attributed the delay to the fact that Morgan and his
mother moved to a different house and could not be located.
8 No. 02-2882
tant state’s attorney the same story he had told the detec-
tives. Detective Cassidy then drove Morgan home, and a
judge issued an arrest warrant for Coleman. After being
arrested and interrogated extensively, Coleman denied any
involvement in the murder.
The next day, Detective Cassidy called Tims and said he
wanted to bring Morgan back to the station for further
questioning. She gave her permission and asked whether
she should accompany him, but Cassidy told her it was not
necessary. Two detectives then picked Morgan up and
brought him to the station. Once there, Cassidy told
Morgan that Coleman was in custody and that he denied
being involved in Gilvis’s murder. According to Cassidy,
Morgan then said, “I want to tell you what really hap-
pened.” He said his prior statements were not true and that
he actually saw Coleman go into Gilvis’s home with
a baseball bat. Morgan said he followed him in and saw
Coleman beat Gilvis with the bat, drag her to the bathroom,
take out a knife, and stab her. Coleman saw him there and
told him to “keep [his] mouth shut” if he “knew what was
good for [him].”
Cassidy told Morgan he didn’t believe this story; why,
he said, would Coleman have let Morgan go if Morgan
actually witnessed the murder? Cassidy emphasized to
Morgan that he had only told lies up to that point and that
he needed to tell the truth. Morgan then changed his story
again. He said Coleman asked him to be a lookout while he
went inside to rob Gilvis. At some point, Morgan entered
the home and saw what he described earlier.
Cassidy again accused Morgan of lying. According to
Cassidy, Morgan then started crying and declared, “I hated
her and I killed her. She called me a nigger almost every
day.” Cassidy testified that, at this point, he “didn’t say
anything to him. [Morgan] just kept going and talking
and talking.” Morgan said he struck Gilvis with her cane,
No. 02-2882 9
tied her up, got a knife, and stabbed her. Cassidy testified
that at no point did he ask Morgan any questions, instead
he just sat in shock “at the hatred he saw in [Morgan’s]
words and actions.” After hearing these words, Cassidy
summoned an assistant state’s attorney, Steve Klaczynski,
to join them. He also called Tims but got no answer. When
Klaczynski arrived, they were joined by a youth officer
(who, as far as we can determine, did nothing to help
Morgan in his predicament).
Klaczynski read Morgan his Miranda rights, which
Morgan said he understood. Cassidy asked Morgan to tell
Klaczynski and the youth officer what Morgan had told him.
Morgan repeated the same story but added that after the
murder he threw his dirty clothes in a dumpster.
About an hour later, the police reached Tims, and she
came to the station. Morgan, Tims, and Klaczynski spent
the next hour talking, and Klaczynski again advised
Morgan of his rights. Both Morgan and Tims responded
that they understood what was said. Morgan, however,
backtracked again and told his mother “I didn’t kill any-
body.” Tims asked Morgan, “Well, did you tell these men
here that you had done it?” and Morgan said, “Yes, I did. I
told them I did it.” Tims replied, “Well, if you didn’t do it,
why did you tell them that.” He responded, “I don’t know, I
just did.”
Later, Klaczynski told Cassidy that Morgan did not want
to tell his mother what he did. According to Cassidy,
Morgan and Tims then left the room, and in the hall
Cassidy told Morgan to tell his mother what he had earlier
confessed to. Morgan then told Tims, “I hated her and I
killed her.” Cassidy testified that Tims said, “You didn’t kill
her, did you?” to which Morgan responded, according to
Cassidy, “Yes I did, I hated her.” At Morgan’s trial, which
started, ironically, on the one-year anniversary of Gilvis’s
murder, Tims completely denied this version of events. She
10 No. 02-2882
testified that Morgan repeatedly told her, “I said I mur-
dered her, but I didn’t do it.” Morgan himself testified that
he didn’t murder Gilvis and that he only “confessed”
because Cassidy cursed and yelled at him. Morgan also said
that Cassidy’s partner pounded on his knees, told him his
fingerprints were on the murder weapon, and said that if he
confessed, God and the police would forgive him and he
could go home in time for his brother’s birthday party.
Based solely on his statements, since the State offered
absolutely no physical evidence tying Morgan to the mur-
der, he was adjudicated delinquent on a charge of first-de-
gree murder.6 No pretrial challenge to the admissibility
of his statements—on either Miranda or voluntariness
grounds—was lodged. Based on the failure to move to sup-
press his statements (and the court’s failure to conduct a
hearing on their admissibility sua sponte), Morgan appealed
to the Illinois appellate court, which affirmed, in a 2-1
decision, the delinquency adjudication. The appellate court
concluded that the police considered Morgan a witness, not
a suspect, and thus that Miranda warnings did not have to
be given prior to his inculpatory statements. The court also
determined that Morgan was not “in custody” when he gave
his statements because no reasonable person in his position
would have believed he was under arrest. The court also
6
Our dissenting colleague blithely ridicules our decision to grant
relief to the petitioner “even though he killed Anna Gilvas” and
“confessed” to the crime. But that statement is true only if what
Morgan told the police was true. If what he said was involuntarily
extracted from him—and promises that he would be forgiven by
God and allowed to go to his brother’s birthday party if he
“confessed” (more on this later) could do the trick—then
his “confession” was not reliable. Sometimes people “confess” to
things they didn’t do, and that danger is certainly a possibility
when the person is an 11-year-old placed in an intimidating situ-
ation. That’s why, we think, a clean determination of voluntari-
ness was required.
No. 02-2882 11
held that his statements were voluntary. For all these
reasons, the court determined that Morgan’s counsel was
not ineffective for failing to challenge, in a motion to
suppress, the admissibility of Morgan’s statements.
Petitions seeking federal habeas relief are now governed
by the familiar, and restrictive, rules spelled out in the
Antiterrorism and Effective Death Penalty Act (AEDPA). A
federal court may only grant relief under AEDPA if the
decision of the state court “was contrary to, or involved an
unreasonable application of, clearly establish Federal law,
as determined by the Supreme Court of the United States.”
In Williams v. Taylor, 529 U.S. 362, 405, 407 (2000), the
Court explained that a state court decision is “contrary to”
Supreme Court precedent if the “state court arrives at a
conclusion opposite to that reached by [the Supreme Court]
on a question of law” or “confronts facts that are materially
indistinguishable from a relevant Supreme Court prece-
dent” and arrives at an opposite result. An unreasonable
application of Supreme Court precedent occurs when “the
state court unreasonably applies it to the facts of the
particular state prison’s case” or “unreasonably extends a
legal principle . . . to a new context where it should not
apply or unreasonably refuses to extend that principle to a
new context where it should apply.” To be unreasonable, the
decision of the state court must not be simply incorrect or
erroneous, it must have been “objectively unreasonable.”
Wiggins v. Smith, 123 S. Ct. 2527 (2003).
Applying AEDPA, the district court concluded that
Morgan was entitled to habeas relief on his claim that he
was denied his Sixth Amendment right to the effective
assistance of counsel during the proceedings in the juvenile
court. This determination rests on the district court’s
conclusion that Morgan was, contrary to the Appellate
Court of Illinois’ finding, “under arrest” and “in custody”
when he gave his inculpatory statements and that they
were involuntary. Because Morgan had finished serving his
12 No. 02-2882
probation sentence when the district court entered its order,
it invited the parties to submit suggestions as to an appro-
priate remedy. After entertaining arguments, the court
issued an order vacating Morgan’s adjudication of delin-
quency and expunging his record unless the State indicated
a desire to give him a new trial.
The question for us is whether the Appellate Court of
Illinois’ decision that there was no underlying constitutional
violation with regard to whether Morgan was in custody,
whether he was seized, whether his confession was volun-
tary, and whether he was denied the effective assistance of
counsel was “contrary to” or “an unreasonable application
of” clearly established federal law as determined by the
Supreme Court. Williams, 529 U.S. at 404-05.7 If there was
no underlying constitutional violation, a motion to suppress
would have been futile and counsel could not be viewed as
ineffective for failing to present such a motion. See Strick-
land v. Washington, 466 U.S. 668, 686 (1984) (counsel’s
deficient performance must have so prejudiced the defense
that the defendant was denied a fair trial). We review the
decision of the district court de novo, but “with a grant of
deference to any reasonable state court decision.” Anderson
v. Cowan, 227 F.3d 893, 897 (7th Cir. 2000) (emphasis in
original).
We begin with the Illinois court’s decision that Morgan
was not in custody when he gave his statements. We agree
with the district court that this decision was “contrary to”
established federal law. In Miranda v. Arizona, 384 U.S.
436 (1966), the Supreme Court recognized that “in-custody
interrogation” places “inherently compelling pressures” on
persons interrogated. Id. at 467. Thus, to safeguard the
7
In Williams, the Court held that the “contrary to” and “unrea-
sonable application” clauses represent alternative grounds for
habeas relief. Williams, 529 U.S. at 404-05.
No. 02-2882 13
Fifth Amendment privilege against self-incrimination,
Miranda warnings are required for custodial interrogation.
Id. at 444. The Court has defined custodial interrogation as
“questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.” Id.; Oregon
v. Mathiason, 429 U.S. 492, 495 (1977) (duty to give
Miranda warnings is triggered “only where there has been
such a restriction on a person’s freedom as to render him ‘in
custody’ ”).
In determining whether a person is “in custody,” the
question is whether, examining the totality of the circum-
stances, a reasonable person in the petitioner’s position
would have felt “at liberty to terminate the interrogation
and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995).
In making this determination, “the only relevant inquiry is
how a reasonable man in the suspect’s position would have
understood his situation.” Berkemer v. McCarty, 468 U.S.
420, 442 (1984). The Court is clear that “the initial determi-
nation of custody depends on the objective circumstances of
the interrogation, not on the subjective views harbored by
either the interrogating officers or the person being ques-
tioned.” Stansbury v. California, 511 U.S. 318, 323 (1994).
See also, Maine v. Thibodeau, 475 U.S. 1144, 1146 (1986).
With that in mind, the following is the full extent of the
Illinois court’s discussion on whether Morgan was in cus-
tody:
In deciding whether an interrogation was custodial for
Miranda purposes, the trial court must first evaluate
evidence and weigh the testimony of the witnesses
to determine: “the location, length, mood, and mode of
the interrogation; the number of police officers pres-
ent; and indicia of formal arrest or evidence of restraint;
the intentions of the officers; and the extent of the
knowledge of the officers and the focus of the investiga-
14 No. 02-2882
tion.” People v. Brown, 136 Ill. 2d 116, 124-25, 554
N.E.2d 216, 220 (1990). Then the trial court should
ascertain what a reasonable person, innocent of any
crime, would perceive under similar circumstances.
Brown, 136 Ill. 2d at 125, 554 N.E.2d at 220.
The factors surrounding [Morgan’s] interrogation only
lead to the conclusion that he was considered a witness.
He was treated well and returned home the first day.
The second day he agreed to return to the police station
alone and he spoke with the same officers. He was not
handcuffed, photographed, or fingerprinted. Under the
circumstances of [Morgan’s] visit to the station, a
reasonable, innocent person would not believe he was
under arrest.
Detective Cassidy testified that [Morgan’s] demean-
or changed right before he made his confession.
He “bursted out crying, his eyes got large, he started
shaking, and his chest was heaving upward.” His con-
fession followed this change in behavior, and Detective
Cassidy testified that he was stunned and could not
speak. The detective’s reaction to [Morgan’s] confession
showed that he was considered a witness up to that
point.
While giving lip service to the objective standard, stating
that the trial court must “ascertain what a reasonable per-
son, innocent of any crime, would perceive under similar
circumstances,” the Illinois court shunned this objective
test, substituting instead a focus on the subjective belief of
Detective Cassidy. The court stressed that Cassidy believed
Morgan was merely a witness and, for that reason, Miranda
warnings were not required. That is not, however, the
correct inquiry under Supreme Court precedent. No weight
can be given to the subjective belief of Detective Cassidy.
Stansbury, 511 U.S. at 325. That the Illinois court not only
relied on Cassidy’s belief, but did so substantially, adds
No. 02-2882 15
weight to our conclusion that the court’s decision was
“contrary to” Supreme Court precedent. Williams, 529 U.S.
at 405-06 (a state court’s decision is “contrary to” clearly
established law if it “applies a rule that contradicts the
governing law set forth in [Supreme Court] cases”).
Nor is the State correct now when it says “the district
court chose to focus on one portion of the appellate court’s
discussion” and on only a “short excerpt from the opinion.”
This argument exaggerates the comprehensiveness of the
state court’s decision. We have just quoted the entire dis-
cussion regarding Morgan’s custodial interrogation. The
focus on Cassidy’s subjective belief, rather than being only
a “short excerpt,” was the main emphasis of the opinion.
While the court, citing People v. Brown, 136 Ill. 2d 116, 124-
25 (1990), acknowledged other factors relevant to whether
an interrogation is custodial, we cannot ignore that the
principal articulated reason for its determination that
Morgan was not in custody was Cassidy’s subjective belief
that Morgan was only a witness. See Hennon v. Cooper, 109
F.3d 330, 335 (7th Cir. 1997) (“[T]he better the job the state
court does in explaining the grounds for its rulings, the
more likely those rulings are to withstand further judicial
review.”); Aycox v. Lytle, 196 F.3d 1174, 1178 n.3 (10th Cir.
1999) (“A state court’s explanation of its reasoning would
avoid the risk that we might misconstrue the basis for the
determination, and consequently diminish the risk that we
might conclude the action unreasonable . . . .”).
Even without this error, the court’s evaluation of the to-
tality of the circumstances, see, e.g., Thompson, 516 U.S. at
112, was objectively unreasonable. The “unreasonable
application” prong of § 2254(d)(1) permits a federal habeas
court to “grant the writ if the state court identifies the
correct governing principle from [Supreme Court] decisions
but unreasonably applies that principle to the facts” of the
petitioner’s case. Wiggins, 123 S. Ct. at 2534-35. Where the
state court’s application of federal law is challenged, it must
16 No. 02-2882
be shown to be not only erroneous, but objectively unreason-
able. Id. We believe this case meets this high standard.
At the outset, we note that, in making the objective in-
quiry, Morgan’s age is an important factor. See Alvarado v.
Hickman, 316 F.3d 841, 851 (9th Cir. 2002), cert. granted,
156 L. Ed. 2d 703 (2003) (age was a factor in determining
whether reasonable person would have felt at liberty to
terminate the interrogation and leave); United States v.
Erving L., 147 F.3d 1240, 1248 (10th Cir. 1998) (“Given
these facts, a reasonable juvenile in E.L.’s position would
not have believed that the officers had curtailed his freedom
of movement to a degree associated with formal arrest.”)
(emphasis added). This is consistent with the inquiry in
determining whether a confession or a waiver of a constitu-
tional right was voluntary, see, e.g., Withrow v. Williams,
507 U.S. 680, 693 (1993) (a defendant’s “maturity” is one of
the factors used to determine if a defendant’s confession
was voluntary), and we see no valid reason why a similar
analysis should not apply equally to an “in custody” deter-
mination. Every jurisdiction that has squarely addressed
the issue, moreover, has ruled that juvenile status is
relevant, either as a factor under the totality of circum-
stances test or by modifying the usual reasonable person
standard. See Alvarado, 316 F.3d at 850 n.5 (reviewing
state law regarding evaluating whether a juvenile is in
custody). And Alvarado involved a 17-year-old. Morgan was
only 11 when he sat alone in the police interrogation room.
With Morgan’s age in mind, we turn to the circumstances
of this case and note first that Morgan was not a seasoned
juvenile delinquent. In fact, he had no prior experience with
the criminal justice system when he was questioned for
almost 2 hours in a closed interrogation room with no
parent, guardian, lawyer, or anyone at his side. Since the
police told his mother it was unnecessary for her to come to
the station, he was at the mercy of the detectives to drive
No. 02-2882 17
him home. Thus, he had no way of leaving the police station
even if he felt he could leave. Nor was he ever told he was
free to go or that he was not under arrest. Furthermore,
compare this encounter with the police with his prior two,
where he sat in a police car outside his own home and then
at a desk in a public area of the police station, all while the
police were “nice” to him. Finally, there are significant
concerns regarding the mode of questioning. Morgan
insisted that the detectives leaned closely in towards him
when they spoke, promising him that both God and the
police would forgive him for what he did, and assuring him
that if he told the truth he could go home to his brother’s
birthday party. Cassidy denied these activities but acknowl-
edged that he was close enough to touch Morgan and that
he repeatedly told Morgan that he was lying. All of these
facts lead to the conclusion that a reasonable person in
Morgan’s situation would have considered his freedom
curtailed. See, e.g., Alvarado, 316 F.3d at 854-55 (17-year-
old subjected to 2-hour interrogation was in custody; “[I]t is
simply unreasonable to conclude that a reasonable 17-year-
old, with no prior history of arrest or police interviews,
would have felt that he was ‘at liberty to terminate the
interrogation and leave.’ ”) (citation omitted); cf. California
v. Beheler, 463 U.S. 1121, 1122-25 (1983) (no custody found
where suspect was told he was not under arrest and was
allowed to leave after only 30-minute interview); Oregon v.
Mathiason, 429 U.S. 492, 495 (1977) (no custody where
suspect was told immediately that he was not under arrest
and interview lasted only 30 minutes). The Illinois Appel-
late Court’s decision to the contrary was, we believe, an
objectively unreasonable application of federal law.
We next turn to the Illinois court’s decision that Morgan
was not under arrest for Fourth Amendment purposes when
18 No. 02-2882
he made his statements.8 If a statement is obtained through
exploitation of an illegal arrest, it must be suppressed.
Brown v. Illinois, 422 U.S. 590, 604 (1975); Dunaway v.
New York, 442 U.S. 200, 217 (1979). An unlawful arrest
occurs when a person is seized by police without probable
cause. Whether a person has been seized is determined by
considering whether a reasonable person, innocent of any
crime, would have concluded that he was not free to leave
police custody. Michigan v. Chesternut, 486 U.S. 567, 573
(1988).
We agree with the district court that the Illinois court’s
resolution of whether Morgan was seized was contrary to
established Supreme Court precedent. A decision is “con-
trary” to established precedents if the court “confronts a set
of facts that are materially indistinguishable from a de-
cision of [the Supreme Court] and nevertheless arrives at a
result different from [Supreme Court] precedent.” Early v.
Packer, 537 U.S. 3, 8 (2002) (citing Williams, 529 U.S. at
405-06). Here, in a case with facts virtually identical to this
case, the Supreme Court wrote:
[T]he detention of petitioner was in important respects
indistinguishable from a traditional arrest. Petitioner
was not questioned briefly where he was found. Instead,
he was taken from a neighbor’s home to a police car,
transported to a police station, and placed in an interro-
gation room. He was never informed that he was “free
to go”; indeed, he would have been physically restrained
if he had refused to accompany the officers or had tried
to escape their custody.
Dunaway, 442 U.S. at 212. Dunaway further emphasized
that the fact that the petitioner was not told he was under
8
The State concedes that the police did not have probable cause
to arrest Morgan. It argues instead that he was not in fact seized,
or under arrest, for purposes of the Fourth Amendment.
No. 02-2882 19
arrest, was not “booked,” and would not have had an arrest
record if the interrogation had proved fruitless was not rel-
evant. Id.
We see no meaningful distinction between Dunaway and
this case. Like the defendant in Dunaway, Morgan was
taken directly to an interrogation room in the police station.
He was never told he was free to go. Cassidy, moreover,
testified that he would not have allowed Morgan to leave
even if Morgan said he wanted to go home. In fact, the only
significant difference here is that, while Dunaway was an
adult, Morgan was, at best, a sixth-grader. Remarkably, the
Illinois court did not even make an attempt to distinguish
Morgan’s situation from the situation in Dunaway.
The Illinois court’s conclusion that Morgan was not under
arrest was also objectively unreasonable. In mak-
ing its determination, the Illinois court, citing People v.
Matthews, 205 Ill. App. 3d 371, 402-03 (1st Dist. 1990),
correctly acknowledged that courts rely on the same factors
in determining whether a person is in custody. The court
again, however, based its decision on Detective Cassidy’s
subjective beliefs. It wrote, “The evidence of [Morgan’s]
interrogation prior to his confession indicates that he was
considered a witness only. . . . The focus of the police
investigation had always been on adult suspects.” The court
did not mention that Morgan was alone, his age, his prior
inexperience with the criminal justice system, or the fact
that the interrogation took place in a closed police room.
Nor did it acknowledge that Morgan was dependent on the
police for transportation home, and Cassidy testified that he
would not have let Morgan go. And, while Morgan was
never told he was not free to leave, he was also not told he
was free to leave, either. All these factors lead to only one
conclusion—on the basis of this record, Morgan was, for all
practical purposes, under arrest within the meaning of the
Fourth Amendment when he made his inculpatory state-
ments.
20 No. 02-2882
Finally, the state court’s decision regarding whether
Morgan’s confession and waiver of his Fifth Amendment
right to remain silent was voluntary was objectively un-
reasonable. A voluntary relinquishment of a right occurs
when a waiver is the “product of a free and deliberate choice
rather than intimidation, coercion, or deception.” Moran v.
Burbine, 475 U.S. 412, 421 (1986). In evaluating voluntari-
ness, we are required to examine the totality of the circum-
stances. Fare v. Michael C., 442 U.S. 707, 725 (1979);
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).
Among other factors, a court must examine the juvenile’s
age, experience, education, background and intelligence,
prior experience with the criminal justice system, whether
the questioning was repeated or prolonged, and the pres-
ence or absence of a friendly adult such as a parent or an
attorney. Michael C., 442 U.S. at 725-26. In fact, the
Supreme Court has consistently recognized that a confes-
sion or waiver of rights by a juvenile is not the same as a
confession or waiver by an adult. A defendant’s age is an
important factor in determining whether a confession is
voluntary. See, e.g., Withrow, 507 U.S. at 693 (maturity is
factor in assessing the voluntariness of a confession);
Michael C., 442 U.S. at 725 (“Where the age and experience
of a juvenile indicate that his request for his probation
officer or his parents is, in fact, an invocation of his right to
remain silent, the totality approach will allow the court the
necessary flexibility to take this into account in making a
waiver determination.”); Schneckloth, 412 U.S. at 226
(stating that the determination whether consent to search
a car was voluntary is made under the totality of circum-
stances, including the “youth of the accused”); In re Gault,
387 U.S. 1, 45 (1967) (when assessing the voluntariness of
juvenile confessions, a court must exercise “special caution,”
particularly when there is prolonged or repeated question-
ing or when the interrogation occurs outside the presence of
a parent, lawyer, or friendly adult); Gallegos v. Colorado,
370 U.S. 49, 54-55 (1962) (a confession of a 14-year-old
No. 02-2882 21
cannot be compared to that of an adult.); Haley v. Ohio, 332
U.S. 596, 599 (1947) (“[W]hen, as here, a mere child—an
easy victim of the law—is before us, special care in scruti-
nizing the record must be used.”).
The reasoning of In re Gault is important:
[T]he constitutional privilege against self-incrimination
is applicable in the case of juveniles as it is with respect
to adults. We appreciate that special problems may
arise with respect to waiver of the privilege by or on
behalf of children, and that there may well be some
differences in technique—but not in principle—de-
pending upon the age of the child and the presence and
competence of parents. The participation of counsel will,
of course, assist the police, Juvenile Courts and appel-
late tribunals in administering the privilege. If counsel
was not present for some permissible reason when an
admission was obtained, the greatest care must be
taken to assure that the admission was voluntary, in
the sense not only that it was not coerced or suggested,
but also that it was not the product of ignorance of
rights or of adolescent fantasy, fright or despair.
In re Gault, 387 U.S. at 55-56.
Based on these principles, we recently recognized:
Although we may not apply a per se rule, youth remains
a critical factor for our consideration, and the younger
the child the more carefully we will scrutinize police
questioning tactics to determine if excessive coercion or
intimidation or simple immaturity that would not affect
an adult has tainted the juvenile’s confession.
Hardaway v. Young, 302 F.3d 757, 765 (2002), cert. denied,
123 S. Ct. 1802 (2003).
Here, the circumstances weigh in favor of a determination
that Morgan’s inculpatory statements were involuntary.
When Morgan sat, alone, in the police interrogation room,
22 No. 02-2882
he was not even old enough to be caddy on a golf course
under Illinois law.9 And to repeat, he had no prior experi-
ence with the criminal justice system. Detective Cassidy
continually challenged Morgan’s statement and accused
him of lying, a technique which could easily lead a young
boy to “confess” to anything. No friendly adult, moreover,
was present during the questioning.10 When a youth officer
was brought in, there is no evidence that he did anything to
protect Morgan’s rights. As we made clear in Hardaway, “a
state-provided youth officer who functions as nothing more
than an observer will not be considered a friendly adult
presence for purposes of the totality of the circumstances.”
Hardaway, 302 F.3d at 765. Finally, after the first
inculpatory statement was uttered, Morgan was given a
standard version of his rights.11 Cf. Michael C., 442 U.S. at
9
See § 20 ILCS 205/2, which sets 13 as the minimum age for
caddies in Illinois. Illinois law also severely limits children under
the age of 16 from doing almost any kind of work.
10
As the Supreme Court has said, a juvenile in police custody
needs “the aid of more mature judgment as to the steps he should
take in [his] predicament. . . . [A]n adult relative . . . could have
given [the juvenile] the protection which his own immaturity could
not.” Gallegos v. Colorado, 370 U.S. 49, 54 (1962). Of course, the
Supreme Court has never required per se the presence of an adult,
see Michael C., 442 U.S. at 718, but it is, however, a significant
factor in considering the “totality of the circumstances.” In fact,
“in marginal cases—when it appears the officer or agent has
attempted to take advantage of the suspect’s youth or mental
shortcomings—lack of parental or legal advice could tip the
balance against admission.” United States v. Wilderness, 160 F.3d
1173, 1176 (7th Cir. 1998).
11
There is no reason to believe that this 11-year-old could un-
derstand the inherently abstract concepts of the Miranda rights
and what it means to waive them. See, Grisso, “Juvenile’s
Capacities to Waive Miranda Rights: An Empirical Analysis,” 68
(continued...)
No. 02-2882 23
726-27 (a 16-year-old juvenile voluntarily and knowingly
waived his Fifth Amendment rights under an interrogation
where he had considerable experience with the police and
had his Miranda rights explained to him); United States v.
Male Juvenile, 121 F.3d 34, 40 (2nd Cir. 1997) (confession
voluntary after juvenile had rights explained to him by FBI
agent). A comparison with Hardaway is relevant. There,
“with the gravest misgivings,” we held that a state court’s
decision that a confession by a 14-year-old with extensive
prior history with the criminal justice system, including 19
arrests, was not involuntary was not unreasonable.
Hardaway, 302 F.3d at 759. In contrast, here, Morgan was
3 years younger and inexperienced with the police. Consid-
ering these facts, we cannot say the state court’s decision
was reasonable. The statements should have been sup-
pressed. At the very least, the admissibility of his state-
ments—on Miranda and voluntariness grounds—should
have been vigorously challenged in pretrial motions by his
counsel. Not to have done so compels the conclusion that
counsel was ineffective.
We recognize that under AEDPA we must give deference
to the state court’s judgment. However, as the Supreme
Court has noted, “[e]ven in the context of federal habeas,
(...continued)
Calif. L. Rev. 1134, 1141-42, 1153-54, 1160 (1980) (finding that 96
percent of 14-year-olds lack an adequate understanding of the
consequences of waiving their rights). Moreover, psychological
studies argue that juveniles are highly susceptible to adults’
suggestions. See, e.g., Maggie Bruck & Stephen J. Ceci, “The
Suggestibility of Children’s Memory,” 50 Ann. Rev. Psychol. 419
(1999). Journalists have also recently reported on children’s sus-
ceptibility to adults’ suggestions during interrogations. See, e.g.,
Alex Kotlowitz, “The Unprotected,” The New Yorker, Feb. 8, 1999,
at 46, 48; Margaret Talbot, “The Maximum Security Adolescent,”
N.Y. Times, Sept. 10, 2000, 6 (magazine), at 41, 88.
24 No. 02-2882
deference does not imply abandonment or abdication of
judicial review. Deference does not by definition preclude
relief.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). This
case exemplifies that principle. Here, where the only
evidence tying Morgan to Gilvis’s murder was his statement
given under highly questionable circumstances, the filing of
a suppression motion by his counsel would not have been,
as the Illinois court said, a futile act.
Finally, we return to the Circuit Rule 30 violation we
noted earlier in this opinion. We have repeatedly empha-
sized the importance of compliance with Circuit Rule 30. In
United States v. Rogers, 270 F.3d 1076 (7th Cir. 2001), we
said:
Compliance with Circuit Rule 30 is essential to proper
performance of the appellate task, especially by those
members of this court whose chambers are outside
Chicago and who lack instant access to the record. Even
judges with chambers in Chicago often prepare for oral
argument at home or elsewhere and need the district
judge’s reasons ready to hand.
270 F.3d at 1085.
Years ago, we issued mere warnings to attorneys who
failed to comply with Rule 30. See Mortell v. Mortell
Co., 887 F.2d 1322 (7th Cir. 1989); United States v. White,
888 F.2d 490 (7th Cir. 1989); United States v. Bond, 847
F.2d 1233 (7th Cir. 1988). More recently, we have imposed
both a reprimand and a $1,000 fine for Rule 30 violations.
Rogers, 270 F.3d at 1085, and United States v. Evans, 131
F.3d 1192 (7th Cir. 1997). We will stay true to that practice
here. Accordingly, we reprimand attorney Hoffman and give
her 14 days to show cause, if any she has, why she should
not be fined $1,000 for noncompliance with Rule 30.
The judgment of the district court is AFFIRMED. The State
is ORDERED to expunge Morgan’s adjudication of delin-
quency unless it gives him a new trial within 120 days.
No. 02-2882 25
EASTERBROOK, Circuit Judge, dissenting. Nothing turns
on the outcome of these proceedings, which therefore are
moot. A.M. was adjudicated a juvenile delinquent and sen-
tenced to five years’ probation. Before the district court
made its decision, the term of probation had expired. That
left no work for a writ of habeas corpus to do.
As the Supreme Court observed in Spencer v. Kemna, 523
U.S. 1, 7-14 (1998), a number of decisions hold that collat-
eral consequences will be presumed, and thus mootness
avoided, when a criminal sentence expires while a petition
for habeas corpus is pending. See, e.g., Sibron v. New York,
392 U.S. 40 (1968); Carafas v. LaVallee, 391 U.S. 234
(1968); Pollard v. United States, 352 U.S. 354 (1957).
Although it declined to revisit those decisions, Spencer held
that they cannot be extended to other upshots of criminal
conduct, such as revocation of parole. See also Lane v.
Williams, 455 U.S. 624 (1982). Challenges to these events
become moot, the Court held, at the end of custody, unless
the petitioner establishes ongoing injury. 523 U.S. at 14.
Although my colleagues assert that juvenile adjudications
are treated just like criminal convictions, the only opinion
cited for that proposition—D.S.A. v. Circuit Court Branch
1, 942 F.2d 1143 (7th Cir. 1991)—precedes Spencer and
cannot be reconciled with it. The view underlying D.S.A. is
that collateral attacks never become moot if they begin
during the petitioner’s custody, and this is the precise
proposition that the Supreme Court rejected in Spencer. We
should start with the Supreme Court’s own question: is a
juvenile adjudication in Illinois a “criminal conviction”? It
does not appear to be one. Illinois calls it an “adjudication”
precisely so that later in life persons who violated the law
can say “no” to the question “have you ever been convicted
of a crime?” A juvenile adjudication in Illinois does not
carry the normal disabilities of a conviction; 705 ILCS
405/5-150(2) provides that the adjudication does not
“disqualify a minor from subsequently holding public office
26 No. 02-2882
. . . [or] operate as a forfeiture of any right, privilege or
right [sic] to receive any license granted by a public author-
ity.” It is not a “conviction” that would bar A.M. from
lawfully owning a weapon. When In re Gault, 387 U.S. 1
(1967), held that juveniles are entitled to many of the
safeguards used in adult prosecutions, it did so not because
the proceedings were “criminal” (juveniles long have been
spared the criminal process) but because the result could be
a loss of liberty. Juveniles receive counsel not under the
sixth amendment, which applies to criminal prosecutions,
but under the due process clauses of the fifth and four-
teenth amendments. 387 U.S. at 550-54. Thus neither
Illinois law nor the federal Constitution designates A.M.’s
adjudication as a “criminal conviction.”
Because A.M. cannot benefit from the presumption es-
tablished in Sibron and Carafas, he must demonstrate
a specific continuing injury. My colleagues point to only one
(slip op. 3): a delinquency adjudication for an act that would
be a crime, if committed by an adult, may be used to
increase the sentence in an adult prosecution for aggra-
vated unlawful use of a weapon. 720 ILCS 5/24-1.6(a)
(3)(D). Yet both Spencer and Lane consider and disapprove
the proposition that a risk of sentence enhancement in the
future justifies federal adjudication today. Here is what the
Court said:
Petitioner’s second contention is that the Order of
Revocation could be used to increase his sentence in a
future sentencing proceeding. A similar claim was like-
wise considered and rejected in Lane, because it was
contingent upon respondents’ violating the law, getting
caught, and being convicted. “Respondents themselves
are able—and indeed required by law—to prevent such
a possibility from occurring.” Lane, supra, at 633, n.13.
We of course have rejected analogous claims to Article
III standing in other contexts.”
No. 02-2882 27
“[W]e are . . . unable to conclude that the case-
or-controversy requirement is satisfied by general
assertions or inferences that in the course of their
activities respondents will be prosecuted for vio-
lating valid criminal laws. We assume that respon-
dents will conduct their activities within the law
and so avoid prosecution and conviction.” O’Shea v.
Littleton, 414 U.S. 488, 497 (1974).
See also Los Angeles v. Lyons, 461 U.S. 95, 102-103
(1983).
Spencer, 523 U.S. at 15. See also Diaz v. Duckworth, 143
F.3d 345, 346 (7th Cir. 1998) (“Consequences that are
within the power of the defendant to avoid—such as a sen-
tencing enhancement, which presupposes his deciding to
commit another crime—are excluded [from the set of effects
that avoid mootness]”). Exposure to a higher sentence under
720 ILCS 5/24-1.6(a)(3)(D) comes within these principles.
A.M. is obliged to refrain from aggravated (or any) unlawful
use of a weapon. He does not need a federal court’s assis-
tance to avoid a sentencing enhancement; all he has to do
is keep on the right side of the law. What he is seeking
today—what my colleagues give him—is not an end to
injury at the state’s hands but emotional balm, a declara-
tion that even though he killed Anna Gilvis his trial lawyer
and the police also committed wrongs, so that his confession
should have been suppressed.
Because the majority thinks that the case remains
live, I treat the merits briefly. My colleagues hold that
A.M.’s confession should be suppressed not only because the
police failed to give him Miranda warnings but also because
it was involuntary. The cornerstone of their approach is
that “custodial interrogation” means different things
according to the age of the person being questioned. The
leading authority cited for this view (slip op. 16) is Alvarado
v. Hickman, 316 F.3d 841 (9th Cir. 2002), cert. granted
28 No. 02-2882
under the name Yarborough v. Alvarado, 124 S. Ct. 45
(2003) (to be argued March 1, 2004). It may be, as the ninth
circuit asserted, 316 F.3d at 850 n.5, that many appellate
courts have concluded that “custodial interrogation”
depends on the suspect’s age—though this introduces the
kind of subjective element that my colleagues soundly decry
elsewhere in their opinion. (It is subjective because age
serves as a proxy for the suspect’s mental state.) Still, the
ninth circuit is not the Supreme Court, and under 28 U.S.C.
§2254(d) a collateral attack fails unless the state adjudica-
tion
(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.
(Emphasis added.) No decision by the Supreme Court of the
United States has “clearly established” that the suspect’s
age affects the need to give Miranda warnings. It is there-
fore not possible to say that the Appellate Court of Illinois
rendered a decision “contrary to” or entailing “an unreason-
able application of” that nonexistent body of law. Certiorari
has been granted in Alvarado to consider the ninth circuit’s
view that law may be treated as if clearly established by the
Supreme Court, whenever inferior courts should have
projected that law would evolve along those lines. That
position—an essential, though unmentioned, component of
my colleagues’ decision—clashes with the text of §2254(d)(1)
and Tyler v. Cain, 533 U.S. 656 (2001), which held that the
identical phrase in 28 U.S.C. §2244(b)(2)(A) does not permit
lower courts to anticipate legal developments at the Su-
preme Court. The idea behind §2254(d)(1) and similar
provisions is that legal change should occur, if at all, on
No. 02-2882 29
direct appeal and not collateral attack. See also Teague v.
Lane, 489 U.S. 288 (1989). It is therefore unnecessary for
me to address the substance of the majority’s position,
though I doubt the wisdom of (let alone constitutional
compulsion for) injecting suspect-specific variables into the
definition of “custodial interrogation.” See Berkemer v.
McCarty, 468 U.S. 420, 432 (1984) (mechanical operation of
Miranda is its chief virtue and should not be compromised
without “a compelling justification”).
The state’s appellate court did not contradict, or apply un-
reasonably, any principles clearly established by the
Supreme Court of the United States. A.M. was not taken to
the stationhouse against his will. He discussed the Gilvis
murder with the police on multiple occasions. Each time he
pointed the finger at a third party. Each time he left freely,
or was taken home, after the conversation. A reasonable
person in his position would not have deemed the circum-
stances on the day he implicated himself to be any different.
The police initiated this discussion only after receiving his
mother’s consent; seeking a parent’s consent to talk to a
child undermines any inference that the child has been
taken into “custody”—or so the state judiciary could
conclude without contradicting or applying unreasonably
the standard understanding of “custodial interrogation.”
See Stansbury v. California, 511 U.S. 318 (1994) (collecting
authority). My colleagues err in analogizing this situation
to Dunaway v. New York, 442 U.S. 200 (1979). Dunaway
was taken away against his wishes (which is to say, he was
arrested) so that the police could grill him about his own
deeds; A.M. went to the stationhouse by parental consent to
discuss evidence A.M. had given against third parties.
There is a constitutional gulf between these things. Only
later did A.M. withdraw his accusations and proclaim his
own role, and then Miranda warnings were given.
To the extent that the majority believes that A.M. was
“arrested” without probable cause and that the confession
30 No. 02-2882
should have been suppressed under the fourth amendment
as a “fruit” of improper custody, there is still a further
problem: Stone v. Powell, 428 U.S. 465 (1976), holds that
the exclusionary rule cannot be applied on collateral attack
if the state court offered full review, which it did here. See
Hampton v. Wyant, 296 F.3d 560 (7th Cir. 2002). Moreover,
Stone cannot be circumvented by complaining that counsel’s
failure to invoke the exclusionary rule was ineffective
assistance. See Holman v. Page, 95 F.3d 481 (7th Cir. 1996).
As for the conclusion that A.M.’s confession was involun-
tary: the majority has made an independent decision
and labeled the state court “unreasonable” for reaching a
different one. That approach—which recites the form of
§2254(d)(1) while disregarding its substance—is just a
continuation of the de novo approach that prevailed before
the AEDPA was enacted in 1996. A state court’s decision
does not become “unreasonable” just because a federal court
thinks it to be incorrect. See Williams v. Taylor, 529 U.S.
362, 410-11 (2000); Mitchell v. Esparza, 124 S. Ct. 7, 11-12
(2003); Yarborough v. Gentry, 124 S. Ct. 1 (2003). Evidence
in this record permitted the state judiciary to rule as it did
without overstepping the bounds allowed by a reasonable-
ness standard. The police did not attempt to overbear A.M.’s
will or treat him poorly. Officers did not hold him for
extended periods. An adult counselor was present to
monitor the officers and assist A.M. (The majority implies
that the counselor behaved like a potted plant, but the
record does not show this; it would be better to say that the
record does not establish what the counselor did. The
presence of an adult witness, available to testify if need be,
deters the police from overreaching even if the adult is
silent during the interview.) Finally, A.M. repeated his
confession five times after the interview. Even when his
mother told him to stop, A.M. continued to proclaim his
culpability.
No. 02-2882 31
Unless juveniles age 11 simply are not allowed to con-
fess—much of my colleagues’ discussion implies that this is
their view—there was no reason to suppress this confession.
See Colorado v. Connelly, 479 U.S. 157 (1986). Yet a
conclusion that A.M. was too young to confess would be the
sort of legal development that cannot be fastened on the
state in collateral proceedings. It also would not be consis-
tent with the law of this circuit. See Hardaway v. Young,
302 F.3d 757 (7th Cir. 2002); United States v. Wilderness,
160 F.3d 1173 (7th Cir. 1998); see also Young v. Walls, 311
F.3d 846 (7th Cir. 2002), which holds that a retarded
suspect with a mental age at or below A.M.’s could give a
voluntary confession, because he had enough concrete
intellect to understand the questions. That, and more, can
be said of A.M., whose statements demonstrate command of
the events surrounding Anna Gilvis’s death and awareness
of his words’ significance. The statement that A.M. gave
and repeated carried indicia of trustworthiness, providing
details that were corroborated by the medical examiner’s
conclusions (details that A.M. had no way of knowing unless
he were the killer). Perhaps confessions by youngsters
deserve less weight, but A.M.’s juvenile adjudication was a
trial to the court; judges who specialize in juvenile hearings
are best situated to apply the appropriate discount factor.
The federal judiciary should let them do their jobs.
I cannot resist offering a few remarks about the role in-
effective assistance of counsel has played in these proceed-
ings. A.M.’s lawyer did not ask the state judge to suppress
his confession. Normally that would forfeit this contention
and preclude its assertion on collateral review. A.M. used a
claim of ineffective assistance to overcome this forfeiture,
and on appeal the state is content to argue the merits. In
some future case it would be worth exploring this subject
with greater care. Does the ineffective-assistance doctrine
apply at all in juvenile adjudications? Strickland v. Wash-
ington, 466 U.S. 668 (1984), treats the requirement of
32 No. 02-2882
competent legal work as an aspect of the sixth amendment’s
right to counsel. Yet the sixth amendment does not apply to
juvenile adjudications and, as Gault holds, any entitlement
to counsel rests on the due process clause. It is not clear to
me that the full body of sixth amendment jurisprudence
carries over to juvenile adjudications.
Then there is the problem that the sixth amendment it-
self does not create a right to counsel in a criminal prosecu-
tion that concludes without a sentence of imprisonment. See
Scott v. Illinois, 440 U.S. 367 (1979); Argersinger v. Hamlin,
407 U.S. 25 (1972). A.M. was not sent to prison, and it is
not clear whether the time he spent at the Illinois Youth
Center is equivalent to prison for constitutional purposes.
If he lacked a constitutional entitlement to counsel, neces-
sarily he lacked a constitutional entitlement to effective
counsel. See Wainwright v. Torna, 455 U.S. 586 (1982). Now
it is true that Alabama v. Shelton, 535 U.S. 654 (2002),
holds that a suspended sentence should be treated as a form
of imprisonment for purposes of the right to counsel,
because the suspension can be lifted, and the same under-
standing likely governs youth probation. But Shelton was
decided well after the state proceedings against A.M. had
run their course, so under Teague and §2254(d)(1) it does
not affect this federal collateral attack.
Perhaps Illinois has bypassed these issues because the
state judiciary itself considered the suppression arguments
on the merits, without treating counsel’s failure to make a
pretrial motion as a default foreclosing the inquiry. This
means in turn that no state default rule blocks federal
collateral review. See Harris v. Reed, 489 U.S. 255 (1989).
It also means that today’s assumptions about the scope of
ineffective-assistance claims on collateral review of juvenile
adjudications do not affect the law for future cases, in which
the issue matters and is debated between the litigants.
Finally, a comment about the wretched performance
by the Attorney General of Illinois. The state ignored the
No. 02-2882 33
Article III problem in its briefs and did not mention
Spencer, Lane, or Diaz even after we directed the parties to
file supplemental memoranda on that subject. The state has
ignored the fact that the suppression issue was not pre-
served in state court. The leading issue in the state’s brief
concerned the evidentiary hearing in the district
court—though as my colleagues rightly observe this played
no role in its decision and therefore is irrelevant to the ap-
peal. The brief’s discussion of the constitutional questions
was shallow. Most of the doctrines and decisions on which
I have relied in this opinion were unmentioned. Bad law
often ensues when lawyers neglect vital subjects.
Then there is the state’s violation of Circuit Rule 30(b)(4)
and the false representation counsel made to the court
under Circuit Rule 30(d). These now yield embarrassment
for an Assistant Attorney General, likely followed by a fine.
In the future an equivalent violation should lead us to
dismiss the appeal, a sanction regularly employed in civil
litigation. Urso v. United States, 72 F.3d 59 (7th Cir. 1995);
Mortell v. Mortell Co., 887 F.2d 1322, 1327 (7th Cir. 1989);
Teitelbaum v. Curtis Publishing Co., 314 F.2d 94, 95 (7th
Cir. 1963); Sparrow v. Yellow Cab Co., 273 F.2d 1 (7th Cir.
1959); Chicago & Eastern Illinois Ry. v. Southern Ry., 261
F.2d 394, 400 (7th Cir. 1958). We have used fines, rather
than dismissals, in criminal appeals in order to protect
defendants from their lawyers (and avoid follow-on claims
of ineffective assistance). United States v. Gomez, 24 F.3d
924, 928-30 (7th Cir. 1994); United States v. Smith, 953
F.2d 1060, 1068 (7th Cir. 1992); cf. Guentchev v. INS, 77
F.3d 1036 (7th Cir. 1996). There is no equivalent need to
protect Illinois from its own Attorney General, and no
reason not to treat appeals in collateral attacks like those
in other civil litigation. Persons who have enjoyed a direct
appeal followed by collateral review in state court and a
decision by a federal district judge have had their day in
court, and then some.
34 No. 02-2882
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-2-04