In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3241
FRANCISCO CARRION,
Petitioner‐Appellant,
v.
KIM BUTLER,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:13‐cv‐00778‐CJP — David R. Herndon, Judge.
____________________
ARGUED FEBRUARY 11, 2016 — DECIDED AUGUST 31, 2016
____________________
Before RIPPLE, KANNE, and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Francisco Carrion was convicted of
residential burglary and of first‐degree murder following a
bench trial in the Circuit Court of Cook County, Illinois. The
state courts affirmed his conviction on direct appeal and on
state postconviction review. Mr. Carrion then filed a habeas
petition in federal court under 28 U.S.C. § 2254, in which he
raised multiple claims for relief. The district court denied his
petition, concluding that although the petition probably was
2 No. 14‐3241
timely filed, most of the claims were procedurally defaulted
and the remaining claims were meritless; the court further de‐
clined to grant a certificate of appealability (“COA”). Mr. Car‐
rion then appealed to this court, and we granted a COA in‐
structing the parties to address three questions: whether there
was sufficient evidence to support his convictions, whether
Mr. Carrion’s confession was voluntary, and whether appel‐
late counsel had been ineffective in failing to challenge the
voluntariness of his confession.
After briefing and oral argument, we conclude that,
whether we apply the deferential review of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254(d), or de novo review, Mr. Carrion is not entitled to re‐
lief on any of these claims. There is no question that the State
of Illinois met its burden of proving each of the charges be‐
yond a reasonable doubt. We further perceive no due process
violation in the reception into evidence of Mr. Carrion’s state‐
ment, even though it was translated by an investigating of‐
ficer. Any ambiguities in the statement were examined thor‐
oughly at trial and the state trial court was entitled to admit
and rely upon the statement. Accordingly, for the reasons set
out more fully in this opinion, we affirm the district court’s
denial of Mr. Carrion’s habeas petition.
I
BACKGROUND
A.
In the early morning hours of July 14, 2001, Francisco Car‐
rion entered the first‐floor apartment of sixty‐nine‐year‐old
Maryanne Zymali in Palatine, Illinois. Zymali confronted
Mr. Carrion, and he stabbed her multiple times causing her
No. 14‐3241 3
death. At the time of the incident, Mr. Carrion, who lived in
an apartment on the floor above Zymali’s, was a nineteen‐
year‐old immigrant from Mexico who spoke almost no Eng‐
lish. Approximately two weeks after the murder, Mr. Carrion
was interviewed in Spanish by Detective Arturo Delgadillo.
He denied any involvement with Zymali’s death, but he
agreed to provide fingerprint samples.
On January 7, 2002, Mr. Carrion was arrested by Detec‐
tive Delgadillo after his fingerprint was found on a knife re‐
covered from Zymali’s apartment. The police took him to the
police station, advised him of his Miranda rights in Spanish,
and then interviewed him twice. Detective Delgadillo con‐
ducted the first interview in Spanish; an assistant state’s attor‐
ney conducted the second interview on camera with Detec‐
tive Delgadillo acting as translator. On January 31, 2002, the
State charged Mr. Carrion with residential burglary under
720 ILCS 5/19‐3(a), and three counts of first‐degree murder
(intentional murder, knowing murder, and felony murder
predicated on residential burglary) under 720 ILCS 5/9‐1(a).
Mr. Carrion waived his right to a jury, and the case proceeded
to a bench trial in June 2004.
At trial, the State’s forensic scientist testified that Mr. Car‐
rion’s fingerprint and palm print were found on a knife recov‐
ered from the apartment. The parties then stipulated to the
nature of Zymali’s injuries, which included stab wounds to
her chin and forearm, a stab wound to her chest that “resulted
in massive internal hemorrhaging,” and “multiple bruises
and abrasions” on her thigh, forehead, chin, chest, abdomen,
4 No. 14‐3241
and right arm.1 The parties further stipulated that the stab
wounds caused Zymali’s death.
The State then called Detective Delgadillo to testify. Ac‐
cording to the officer, Mr. Carrion stated during the first of
the two interviews that, in the early morning of July 14, 2001,
after a night of drinking at a nearby bar, he was walking home
and noticed a light in Zymali’s ground‐floor apartment.
Mr. Carrion said that he “became curious as to what was in‐
side,” and he entered through the open sliding glass door and
unlocked screen door.2 Detective Delgadillo further testified
that Mr. Carrion said that he entered the apartment because
he was “looking to steal something.”3 While Mr. Carrion “was
in the kitchen looking around,” he was confronted by Zymali,
who “started to attack him, scratching him, kicking him,
fight[ing] him and that pretty much a fight ensued, a struggle
ensued.”4 The officer further testified that Mr. Carrion told
him that Zymali then pulled a knife out of a kitchen drawer,
that Mr. Carrion took the knife from her, and that after addi‐
tional struggle, “he pushed her with both hands,” which re‐
sulted in his “stabb[ing] her in the stomach area with the
knife.”5 According to the officer, Mr. Carrion stated that he
then pulled the knife out of Zymali’s chest and threw it across
1 R.17‐13 at 34–37.
2 Id. at 73.
3 Id. at 73–74.
4 Id. at 74–75.
5 Id. at 76–77.
No. 14‐3241 5
the room. When Zymali fell to her knees bleeding, Mr. Car‐
rion became scared and ran out of the apartment, “went
around the building,” “climbed onto his balcony and entered
his apartment.”6
Detective Delgadillo next testified about the second inter‐
rogation in which he acted as translator between Mr. Carrion
and the assistant state’s attorney. He said that on the night of
the arrest, Mr. Carrion was taken to meet with an assistant
state’s attorney and agreed to give a videotaped statement.
During this interview, which took place around midnight and
lasted half an hour, the prosecutor posed questions in English,
and Detective Delgadillo translated the questions to Spanish
and then translated Mr. Carrion’s responses from Spanish to
English. The court admitted into evidence both the video and
a transcription of the interview that had been prepared by
someone other than Detective Delgadillo.7 At the conclusion
of the officer’s testimony, the video interview was played in
open court, and the State rested its case.
The defense called three witnesses: Mr. Carrion’s friend
Brenda Viveros, a certified interpreter named Ruth Ramos,
and Mr. Carrion himself. Viveros testified that she was with
Mr. Carrion on the night in question and that Mr. Carrion was
drunk, that “[h]e was talking funny and just having trouble
walking,” and that “[h]e asked [her] to take him home be‐
cause he was not feeling good.”8 On cross‐examination,
6 Id. at 78.
7 Neither the videotape nor the transcription are part of the record on ap‐
peal. In the district court and in their briefs, the parties have relied solely
on the testimony given at trial.
8 R.17‐14 at 37.
6 No. 14‐3241
Viveros acknowledged that she did not ask the bartender to
stop serving Mr. Carrion, nor did she call a cab or arrange a
ride for him, but she stated that she did tell another friend of
theirs to make sure that Mr. Carrion stopped drinking.
Viveros testified that she did not see Mr. Carrion leave the
bar, but that she did go looking for him after the bar closed
and found him sleeping in his bed in his apartment. Viveros
did not see any injuries on Mr. Carrion at that time.
Ramos testified that she reviewed the videotape of
Mr. Carrion’s interview with the assistant state’s attorney
several times and prepared her own transcription of the con‐
versation. She went on to testify as follows:
[Mr. Carrion’s counsel]:
Q Do you remember a question put to Francisco
Carrion by Detective Delgadillo:
“Q: And what happened when you got close to
your home”?
Do you remember that question being asked?
A Yes.
…
Q All right. Did you hear Francisco Carrion an‐
swer that question in Spanish?
A Yes.
Q Did you take that answer in Spanish and tran‐
scribe it into English?
A Yes.
Q What was his answer in English?
No. 14‐3241 7
A His answer was, [reading from her prepared
transcription] “I … well … I look down and I
saw a … the apartment and I saw the light on. It
seemed like an easy thing to do, I don’t know. I
became curious … I didn’t even know what I
was going to do … ”
Q Did he finish that answer?
A As far as I remember, when viewing the video,
I think his answer was cut off. …
…
Q But he did say, “I don’t know. I became curious.
I didn’t even know what I was going to do it.”
Is that correct?
A Yes.
Q Do you remember a question put by Delgadillo
to Carrion … “When you first came in the apart‐
ment, what were you looking for”?
A Yes, I remember the question.
Q Did you hear Francisco Carrion answer that
question in Spanish?
A Yes.
…
Q What was that answer?
A Answer, [reading from her prepared transcrip‐
tion] “I didn’t even know what I wanted, I just
got in to see what thing … just to look around
8 No. 14‐3241
… I didn’t even know what I was going to take,
it’s like … ” And then an interruption.[9]
After testifying about specific translated questions and an‐
swers, Ramos was asked whether, based on her experience
and training as an interpreter, she believed that “Officer Del‐
gadillo’s rendering of Francisco Carrion’s answers in Spanish
10
to English was truthful, complete, and accurate.” Ramos an‐
swered:
A Well, I believe there were some omissions.
When the questions … were posed in Spanish,
and there were some omissions when the an‐
swers were posed in Spanish to be translated
into English. I also believe that there were …
some errors, grammatical errors in sentence
structure in the Spanish language, the way the
questions were posed to Mr. Carrion.
Q Could you consider or would you consider De‐
tective Delgadillo’s rendering of Carrion’s an‐
swers from Spanish to English to be verbatim?
A Yes.[11]
Ramos further testified on cross‐examination:
Q [W]hen you were able to hear the officer ask,
“[Were] you looking for something to take?”
You heard the defendant’s answer, Carrion’s
9 Id. at 48–56.
10 Id. at 57.
11 Id.
No. 14‐3241 9
answer, “Well … possibly yes. If I had found
something that … ,” is that correct?
A Yes.[12]
Mr. Carrion then took the stand. He testified that on the
night in question he was heavily intoxicated and that he left
the bar for his apartment, noticed the light on in Zymali’s
apartment, and entered. Mr. Carrion stated that he did not
know why he entered the apartment, but he denied intending
to steal anything. Mr. Carrion then described the events that
occurred after Zymali confronted him. He stated that he in‐
jured Zymali in self‐defense during the course of a struggle
and that Zymali pushed, kicked, and scratched him. He ex‐
plained that he “grabbed a knife” and that Zymali was injured
when he pushed her and “the knife … went inside [her].”13
Mr. Carrion conceded that he suffered no injuries during the
struggle and that, although he knew that Zymali was seri‐
ously injured, he did nothing to assist her. Instead, he left Zy‐
mali’s apartment, climbed onto the balcony of his sec‐
ond‐floor apartment, entered through the balcony door, and
fell asleep. When asked about his videotaped statement,
Mr. Carrion testified that he confessed to entering the apart‐
ment with the intent to steal because Detective Delgadillo
promised to help him by securing his deportation to Mexico
if he did so. On cross‐examination, however, Mr. Carrion
acknowledged that during the videotaped interview he stated
that no one had promised him anything. In closing, the de‐
fense contended that there was insufficient evidence that
Mr. Carrion entered Zymali’s apartment with the intent to
12 Id. at 74.
13 Id. at 83–84.
10 No. 14‐3241
commit theft and that, in stabbing Zymali, he was acting in
imperfect self‐defense and therefore should only be found
guilty of second‐degree murder.
At the conclusion of the evidence, the court, ruling orally,
found Mr. Carrion guilty on all counts. On the residential bur‐
glary charge, the court found that Mr. Carrion entered Zy‐
mali’s apartment intending to commit a theft. In the court’s
view, “[t]he most compelling evidence of [Mr. Carrion’s] in‐
tention to commit a theft [was] his own statement” to that ef‐
fect during the videotaped interview.14 Addressing the accu‐
racy of Detective Delgadillo’s translation, the court found Ra‐
mos’s testimony “very credible” and emphasized her opinion
that the officer’s translation was “verbatim.”15 Based on
Mr. Carrion’s demeanor and answers, the court said it had
“no doubt … from looking at that video that the defendant
gave it up.”16 It was immaterial, the court noted, that Mr. Car‐
rion’s answers indicated that he “didn’t know what he
wanted to take” and “wasn’t sure what he wanted to get from
the apartment” because these statements did “not lessen the
intent to commit a theft inside the apartment.”17 The court also
rejected Mr. Carrion’s claim that Detective Delgadillo prom‐
ised to have him deported. Finally, the court addressed the
circumstantial evidence it found relevant to Mr. Carrion’s in‐
tent in entering the apartment. It noted that “[i]t was easy for
[Mr. Carrion] to enter” the unlocked, first‐floor apartment
14 Id. at 142.
15 Id. at 149.
16 Id.
17 Id. at 141.
No. 14‐3241 11
18
and that he had done so at a very early hour in the morning ;
it found these circumstances consistent with an intent to com‐
mit theft. The court believed that the lack of any traditional
burglary evidence was insignificant; in its view, there was no
sign of forced entry because the screen door was unlocked,
and there was no stacking of property because Mr. Carrion
was confronted by Zymali.
Addressing the first‐degree murder charges, the court
concluded that Mr. Carrion “stabbed [Zymali] repeatedly
with an intent to kill, and he then fled.”19 The court empha‐
sized both the force required to cause a stab wound the size
of the one to Zymali’s abdomen and also the separate stab
wounds to Zymali’s face and arm. It rejected the defense’s
theory that Mr. Carrion killed Zymali in self‐defense because,
in its view, there was no evidence of a struggle “except the
defendant’s own statement that there was a struggle.”20 The
court also rejected Mr. Carrion’s intoxication theory as “in‐
credible.”21 It noted that after reaching for a knife and stab‐
bing Zymali several times, “he had the … forethought to es‐
cape” and climb up onto the second‐floor balcony: “I find it
hard to believe he had the ability both physical and mental to
do something like that … [y]et he doesn’t remember anything
at all about this crime until three months later.”22 The court
found Mr. Carrion guilty under each of the three theories of
18 Id. at 142.
19 Id. at 150.
20 Id. at 146.
21 Id. at 145–47.
22 Id. at 146–47.
12 No. 14‐3241
first‐degree murder presented by the State—intentional mur‐
der, knowing murder, and felony murder—but it merged the
three counts into one for purposes of sentencing.
After finding Mr. Carrion eligible for the death penalty,
the court imposed a fifty‐five‐year term of imprisonment for
first‐degree murder and a concurrent fifteen‐year‐term of im‐
prisonment for residential burglary.
B.
Mr. Carrion appealed his conviction. His appointed appel‐
late counsel then moved to withdraw under Anders v. Califor‐
nia, 386 U.S. 738 (1967). In counsel’s view, an appeal—includ‐
ing arguments that trial counsel was ineffective and that the
evidence was insufficient to support the convictions—would
be without arguable merit. Mr. Carrion filed a response. The
state appellate court in due course granted the Anders motion
and affirmed the convictions. Mr. Carrion then filed a petition
for leave to appeal (“PLA”) to the Illinois Supreme Court that
raised only a new claim that appellate counsel provided inef‐
fective assistance. The Illinois Supreme Court denied leave to
appeal, and Mr. Carrion did not file a petition for a writ of
certiorari.
Mr. Carrion then filed a petition for state postconviction
relief raising the following claims: (1) trial counsel was inef‐
fective; (2) there was insufficient evidence to support either
conviction; (3) the trial court considered improper factors at
sentencing; (4) officers took advantage of his lack of under‐
standing of his rights during interrogation; and (5) appellate
counsel was ineffective. The trial court dismissed the postcon‐
viction petition. On appeal, Mr. Carrion’s appointed counsel
moved to withdraw under Pennsylvania v. Finley, 481 U.S. 551
No. 14‐3241 13
(1987), on the ground that all potential issues lacked arguable
merit. Counsel’s Finley brief considered raising arguments
about judicial bias at sentencing, the sufficiency of the evi‐
dence, the voluntariness of Mr. Carrion’s confession given
Mr. Carrion’s claims that he did not understand his rights and
was made a false promise of deportation, and whether
Mr. Carrion’s trial and appellate counsel provided effective
assistance. Counsel concluded: (1) all claims were meritless;
(2) that the sufficiency claims and the ineffective assistance
claims against trial counsel were barred by res judicata be‐
cause they were addressed on direct appeal when the appel‐
late court granted the Anders motion; (3) that the involuntary
confession claim was “barred by res judicata because it could
have been raised on direct appeal” and, even if it was not
barred, was not supported by the record; and (4) that alt‐
hough the ineffective assistance claim against appellate coun‐
sel could not have been raised on direct appeal, it was merit‐
less under Strickland v. Washington, 466 U.S. 668 (1984).23
Mr. Carrion did not file a response, and the state appellate
court granted the motion to withdraw on April 13, 2012, ex‐
plaining that it had “carefully reviewed the record … and the
[Finley] memorandum” and found “no issues of arguable
merit.”24 Mr. Carrion then filed a PLA, which reiterated his
judicial bias, sufficiency, ineffective assistance, and involun‐
tary confession claims. The PLA was denied without elabora‐
tion on March 27, 2013.
23 R.17‐3 at 9–17.
24 R.1‐1 at 82–83.
14 No. 14‐3241
On July 29, 2013, Mr. Carrion filed a federal habeas peti‐
tion in the United States District Court for the Southern Dis‐
trict of Illinois. He raised the following grounds for relief: (1)
there was insufficient evidence at trial to support either the
residential burglary or the first‐degree murder convictions
beyond a reasonable doubt; (2) the trial judge was biased and
considered improper evidence at sentencing; (3) trial counsel
was ineffective; (4) he was denied due process, equal protec‐
tion, and access to the courts because he lacked proficiency in
English; (5) appellate counsel was ineffective in failing to raise
grounds one through four and abandoning Mr. Carrion by fil‐
ing an Anders motion; and (6) postconviction counsel was in‐
effective in failing to raise all meritorious claims and in aban‐
doning Mr. Carrion by filing a Finley motion.25 The State re‐
sponded that Mr. Carrion’s petition was time‐barred, some of
his claims were procedurally defaulted, and all of his claims
were meritless. The district court denied Mr. Carrion’s peti‐
tion. It reasoned that although the petition probably was
timely filed, the first four claims were procedurally defaulted,
the fifth claim failed on the merits, and the sixth claim is not
grounds for habeas relief under 28 U.S.C. § 2254(i). The court
denied a COA.
Mr. Carrion then filed a notice of appeal, which we con‐
strued as an application for a COA. We determined that
Mr. Carrion had made a substantial showing of a denial of his
right to due process and of his right to counsel under the Sixth
Amendment. We therefore recruited counsel and instructed
the parties to address the following issues: (1) whether the
prosecution introduced sufficient evidence of Mr. Carrion’s
25 R.1 at 7–16.
No. 14‐3241 15
intent to convict him of residential burglary and first‐degree
murder; (2) whether the trial court violated Mr. Carrion’s due
process rights by relying on a confession elicited from a de‐
tective who also acted as Mr. Carrion’s translator; (3) whether
Mr. Carrion’s appellate counsel provided ineffective assis‐
tance by not challenging the admission of the confession un‐
der the Due Process Clause.
II
DISCUSSION
As a general rule, we review the district court’s denial of a
habeas petition under a de novo standard of review, but that
review is governed by the standards set forth in AEDPA. Ruhl
v. Hardy, 743 F.3d 1083, 1090 (7th Cir. 2014). Here, the State
has raised, as it did before the district court, a number of ar‐
guments urging us to reject the claims in Mr. Carrion’s peti‐
tion on procedural grounds. Specifically, the State contends,
among other things, that Mr. Carrion’s federal petition was
untimely filed, that his involuntary confession and sufficiency
claims are procedurally defaulted, and that his ineffective as‐
sistance claim based on a failure to challenge the confession is
waived. We need not address these potentially difficult pro‐
cedural questions, however, because even if we were to de‐
cide each of them in Mr. Carrion’s favor, his claims clearly fail
on the merits.26
26 See 28 U.S.C. § 2254(b)(2); Estremera v. United States, 724 F.3d 773, 775
(7th Cir. 2013) (“[I]t makes sense (and is permissible) to reject a collateral
attack on the merits while other procedural defenses, such as [statutes of
limitations,] waiver, default, or lack of exhaustion, remain in the back‐
ground.” (citing 28 U.S.C. § 2254(b)(2))); Johnson v. Pollard, 559 F.3d 746,
752 (7th Cir. 2009) (“[W]e need not address the procedural default issue
16 No. 14‐3241
Further, our conclusion is the same regardless of whether
we apply the deferential standards of 28 U.S.C. § 2254(d).
AEDPA provides that, in conducting our review, “we look to
the last reasoned state court opinion addressing each claim.”
Ruhl, 743 F.3d at 1091. Where a claim has been adjudicated on
the merits in state court, habeas relief is appropriate only if
the state court’s determination was (1) “contrary to, or in‐
volved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the
United States,” or (2) “based on an unreasonable determina‐
tion of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d); Cullen v. Pinholster, 563
U.S. 170, 181 (2011). However, “[i]f no state court has squarely
addressed the merits of a habeas claim, we review the claim
de novo under the pre‐AEDPA standard of 28 U.S.C. § 2243,
but still with deference to the state court.” Ruhl, 743 F.3d at
1091. Here, the State has argued that § 2254(d) should apply,
contending that Mr. Carrion’s claims were rejected on the
merits by the state court. Again, we need not decide this issue
because even if Mr. Carrion’s claims fall outside § 2254(d) and
are, therefore, subject to the more generous pre‐AEDPA
27
standard of § 2243, they clearly fail on the merits. Therefore,
raised by the State because [the petitioner]’s claim clearly fails on the mer‐
its.”); see also Brown v. Watters, 599 F.3d 602, 610 n.10 (7th Cir. 2010) (sur‐
veying case law and noting that this practice is in accordance with both
Supreme Court precedent and also “the established practice in the other
circuits”).
27 See Ruhl v. Hardy, 743 F.3d 1083, 1092 (7th Cir. 2014) (declining to decide
“which issues must be reviewed under AEDPA’s deferential standard and
which should be reviewed under the pre‐AEDPA de novo standard” be‐
cause petitioner’s claim failed even under de novo review); Johnson, 559
No. 14‐3241 17
for purposes of our decision today, we will assume that a de
novo standard applies.
A.
We first address Mr. Carrion’s argument that the record
contains insufficient evidence to support, as a matter of law,
his convictions for residential burglary and first‐degree mur‐
der. The familiar standard of Jackson v. Virginia, 443 U.S. 307
(1979) makes clear that, to comport with the standards of the
Due Process Clause, a criminal conviction must be based on
proof beyond a reasonable doubt. “[T]he relevant question is
whether, after viewing the evidence in the light most favora‐
ble to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” Id. at 319 (emphasis in original). In conducting this
inquiry, we must “give[] full play to the responsibility of the
trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Id. It is also important that we
evaluate the record evidence “with explicit reference to the
substantive elements of the criminal offense as defined by
state law.” Id. at 324 n.16.
Turning first to the residential burglary conviction, the
Jackson inquiry is whether any rational trier of fact could have
found beyond a reasonable doubt that Mr. Carrion “know‐
ingly and without authority enter[ed]” Zymali’s apartment
“with the intent to commit therein a felony or theft.” 720 ILCS
5/19‐3(a). There is no dispute about the first element, so we
F.3d at 753 (declining to decide finally whether Wisconsin state court
reached federal merits question because result would be the same under
either § 2254(d) or de novo review).
18 No. 14‐3241
focus on whether there is legally sufficient evidence that
Mr. Carrion entered Zymali’s apartment intending to commit
a theft. See People v. Maggette, 747 N.E.2d 339, 353 (Ill. 2001)
(observing that “[t]he gist of the offense [of residential bur‐
glary] is the defendant’s felonious intent with which he or she
enters the dwelling”). Mr. Carrion argues that the State failed
to prove this element beyond a reasonable doubt because the
details of his entry indicate that he did not possess the requi‐
site intent: he was heavily intoxicated; Zymali’s apartment
was lit and her door was open; he carried no burglary tools;
he did not attempt to conceal his entry or verify that the resi‐
dence was empty; and there was no evidence suggesting that
he searched for items of value before the confrontation. In
Mr. Carrion’s view, this evidence suggests either that he en‐
tered the apartment to gain access to the interior of the build‐
ing or that he was simply drunk and exploring. Alternatively,
Mr. Carrion suggests, relying on his own testimony and that
of his friend Viveros, that he was so intoxicated that he “ha[d]
blacked out” and was incapable of forming the requisite in‐
tent at all.28
Viewing the evidence in the prosecution’s favor, as we are
obliged to do, we must conclude that a rational trier of fact
could have found beyond a reasonable doubt that Mr. Carrion
intended to commit a theft when he entered Zymali’s apart‐
ment. The state trial court, sitting as the finder of fact, had be‐
fore it direct evidence of Mr. Carrion’s intent in the form of
his own videotaped statements, which the court found to be
“[t]he most compelling evidence of his intention to commit a
28 Appellant’s Br. 39.
No. 14‐3241 19
theft.”29 Based on the trial evidence, the court was satisfied
both that Detective Delgadillo’s translations during the vide‐
otaped interview were accurate and that Mr. Carrion’s testi‐
mony that the detective made a false promise of deportation
was unbelievable. Relying on Mr. Carrion’s statements and
his demeanor, the court said that it “ha[d] no doubt … from
looking at that video that the defendant gave it up.”30 Further,
the incriminating statements in the video aligned with Detec‐
tive Delgadillo’s trial testimony about his initial conversation
with Mr. Carrion. The detective testified that Mr. Carrion told
him that when he saw a light on in Zymali’s apartment he be‐
came “curious as to what was inside” and that he entered the
31
apartment because he was “looking to steal something.” To
be sure, Mr. Carrion’s trial testimony differed from Detective
Delgadillo’s, but it is the trier of fact, not us, that bears “the
responsibility … fairly to resolve conflicts in the testimony.”
Jackson, 443 U.S. at 319.
The state trial court also found the circumstantial evidence
presented at trial corroborative of Mr. Carrion’s incriminating
statements. In Illinois, “[c]riminal intent is a state of mind that
not only can be inferred from the surrounding circumstances,
but usually is so proved.” Maggette, 747 N.E.2d at 354 (citation
omitted). “In a burglary case, the relevant surrounding cir‐
cumstances include the time, place and manner of entry into
the premises, the defendant’s activity within the premises,
and any alternative explanations offered for his presence.”
29 R.17‐14 at 142.
30 Id. at 149.
31 R.17‐13 at 73–74.
20 No. 14‐3241
People v. Richardson, 470 N.E.2d 1024, 1027 (Ill. 1984). Here, the
trial court noted the late hour of Mr. Carrion’s unauthorized
entry as well as its view that “[i]t was easy for [Mr. Carrion]
to enter [Zymali’s] apartment,” which was unlocked and lo‐
32
cated on the first floor of the building. It found the absence
of traditional burglary evidence immaterial; in its view, there
was no sign of forced entry because the screen door was un‐
locked, and there was no stacking of property because
Mr. Carrion did not have time to canvass the apartment be‐
fore Zymali confronted him. And the court explicitly rejected
Mr. Carrion’s alternative explanation that he was so heavily
intoxicated that he had simply wandered into Zymali’s apart‐
ment. In the court’s view, there was enough record evidence
of Mr. Carrion’s mental and physical alertness to render his
33
testimony on this matter “incredible.”
Taking both the direct and circumstantial evidence in the
light most favorable to the prosecution, we conclude that the
trial court certainly was justified in concluding beyond a rea‐
sonable doubt that Mr. Carrion entered Zymali’s apartment
intending to commit a theft and therefore was guilty of resi‐
dential burglary under Illinois law.
Having concluded that the evidence at trial was sufficient
to support Mr. Carrion’s conviction for residential burglary
under 720 ILCS 5/19‐3(a), we also must conclude that his con‐
viction for first‐degree murder must stand. In Illinois, felony
murder is one of three categories of first‐degree murder. Illi‐
nois law provides that a person commits first‐degree murder
32 R.17‐14 at 142.
33 Id. at 145–47.
No. 14‐3241 21
when, “in performing the acts which cause the death” of an
individual, “he is attempting or committing a forcible felony
other than second degree murder.” 720 ILCS 5/9‐1(a)(3). Res‐
idential burglary is an enumerated forcible felony under 720
ILCS 5/2‐8. Therefore, because Mr. Carrion killed Zymali
while attempting to commit residential burglary, he is guilty
of first‐degree murder under Illinois law.
As we already have noted, the State charged Mr. Carrion
under all three categories of first‐degree murder in 720 ILCS
5/9‐1(a). The court accepted all three theories but merged the
counts into a single conviction. Therefore, our conclusion that
there is sufficient evidence to support the felony murder
charge is sufficient in itself to support the first‐degree murder
conviction under Jackson, regardless of Mr. Carrion’s mental
state at the time he committed the offense.
B.
We now turn to Mr. Carrion’s contention that the trial
court’s admission of his videotaped statement violated his
right to due process because Detective Delgadillo’s perfor‐
mance as translator during the interview rendered the confes‐
sion involuntary. A foundational principle of due process of
law is that the state cannot procure a criminal conviction
through the use of an involuntary confession. See generally
Schneckloth v. Bustamonte, 412 U.S. 218, 223–26 (1973); United
States v. Stadfeld, 689 F.3d 705, 709–10 (7th Cir. 2012). An in‐
criminating statement is voluntary “if, in the totality of cir‐
cumstances, it is the product of a rational intellect and free
will and not the result of physical abuse, psychological intim‐
idation, or deceptive interrogation tactics that have overcome
the defendant’s free will.” United States v. Gillaum, 372 F.3d
848, 856 (7th Cir. 2004) (internal quotation marks omitted).
22 No. 14‐3241
“[C]oercive police activity is a ‘necessary predicate to the
finding that a confession is not “voluntary” within the mean‐
ing of the Due Process Clause of the Fourteenth Amend‐
ment.’” United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001)
(quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)). Thus,
to find that a confession is involuntary, we must conclude that
it is the product of coercive police activity. Whether a confes‐
sion is voluntary is a legal question subject to de novo review,
although we afford great deference to the trial court’s under‐
lying factual findings and will disturb them only in the case
of clear error. Id.
Upon review of the record, we conclude that Mr. Carrion’s
confession was not the result of official coercion, and, there‐
fore, its admission did not offend due process.
Mr. Carrion’s coercion argument is a rather novel one. A
voluntariness inquiry typically requires that we consider a
34
combination of factors. But Mr. Carrion simply contends
that when an interrogation is conducted through a translator,
due process requires that the translator “be (1) neutral and in‐
dependent and (2) fully capable of interpreting exactly both
34 In evaluating coercion, relevant factors include
the defendant’s age, education, intelligence level, and
mental state; the length of the defendant’s detention; the
nature of the interrogations; the inclusion of advice about
constitutional rights; and the use of physical punishment,
including deprivation of food or sleep. Narcotics, alcohol,
and fatigue also may be considerations in a particular
case.
United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001) (citation omitted).
No. 14‐3241 23
the questions posed and the answers given.”35 Because Detec‐
tive Delgadillo was not neutral or capable, Mr. Carrion con‐
tinues, the incriminating statements were necessarily coerced
and inadmissible.
Our cases provide no support for the bright line constitu‐
tional requirement that Mr. Carrion proposes. The authorities
upon which he relies, treatises, state ethics codes, state case
law, and agency guidelines, may well suggest the best prac‐
tice. But our task is decidedly more narrow. Although these
sources may be of some help in our inquiry, the basic question
before us is not whether the officers in this case adhered to
best practices but “whether the circumstances surrounding
[Mr. Carrion’s] confession would have interfered with his free
and deliberate choice of whether to confess.” Johnson v. Pol‐
lard, 559 F.3d 746, 753 (7th Cir. 2009) (internal quotation marks
omitted). To be sure, evidence that Detective Delgadillo, in
acting as translator, manipulated or mistranslated the prose‐
cutor’s questions or Mr. Carrion’s answers is relevant to the
extent that it demonstrates coercive conduct. In the end, how‐
ever, the ultimate question is whether, under the totality of
the circumstances, Mr. Carrion was deprived of that “free and
deliberate choice.” Id.36
35 Appellant’s Br. 19.
36 This comports with our approach in dealing with more traditional ar‐
guments of coercive activity. For example, although “deception by an in‐
terrogator does not automatically invalidate a confession,” Sotelo v. Ind.
State Prison, 850 F.2d 1244, 1251 (7th Cir. 1988), “[g]iven the right circum‐
stances, a false promise of leniency may be sufficient to overcome a per‐
son’s ability to make a rational decision about the courses open to him,”
United States v. Montgomery, 555 F.3d 623, 629 (7th Cir. 2009); see also Hadley
24 No. 14‐3241
Mr. Carrion first argues that Detective Delgadillo was so
inherently biased that his translation of Mr. Carrion’s state‐
ments to the assistant state’s attorney cannot be properly at‐
tributed to Mr. Carrion. Mr. Carrion goes so far as to suggest
that Detective Delgadillo served as translator solely to ensure
his own “ability to control Carrion’s words that would even‐
tually be presented to the court … because [the officers] knew
that the only way they would get the confession they needed
was if Delgadillo acted as Carrion’s mouthpiece.”37 Were
these accusations true, they certainly would be relevant to our
coercion inquiry. But Mr. Carrion provides no support for his
charges of bias. The bare assertion that Detective Delgadillo,
as both investigator and translator, could not have acted neu‐
trally is insufficient to establish that he acted coercively. See
United States v. Lind, 542 F.2d 598, 599 (2d Cir. 1976) (rejecting
involuntary confession argument where Spanish‐speaking
FBI agent served as translator).
Mr. Carrion also questions Detective Delgadillo’s compe‐
tency as a translator. He relies on the testimony of Ruth Ra‐
mos, a language consultant and certified interpreter who re‐
viewed the videotaped interview several times and prepared
her own transcription. At trial, Ramos was asked whether,
v. Williams, 368 F.3d 747, 749 (7th Cir. 2004) (noting that “[a]lthough the
law permits the police to pressure and cajole, conceal material facts, and
actively mislead, it draws the line at outright fraud” (citation omitted) (in‐
ternal quotation marks omitted)).
37 Reply Br. 21.
No. 14‐3241 25
based on her experience and training, she believed that Detec‐
tive Delgadillo’s translations were “truthful, complete, and
accurate.”38 Ramos replied:
Well, I believe there were some omissions.
When the questions … were posed in Spanish,
and there were some omissions when the an‐
swers were posed in Spanish to be translated
into English. I also believe that there were …
some errors, grammatical errors in sentence
structure in the Spanish language, the way the
questions were posed to Mr. Carrion.[39]
These mistakes, Mr. Carrion suggests, altered the meaning of
his responses and rendered his confession involuntary.
We cannot accept Mr. Carrion’s argument. As an initial
matter, it is important to remember that we must view this
issue through the lens of the trial court’s finding that Detec‐
tive Delgadillo’s translations were accurate, a determination
to which we afford great deference. See United States v. Stew‐
art, 536 F.3d 714, 719 (7th Cir. 2008) (stating that historical
facts are entitled to deference “especially when the suppres‐
sion decision turn[s] on the credibility of the witnesses” (al‐
teration in original) (internal quotation marks omitted)). The
state trial court noted in its ruling that immediately after Ra‐
mos testified about the unspecified omissions and grammati‐
cal mistakes, she stated that, despite these errors, it was her
opinion that the translations were “verbatim”; the court
38 R.17‐14 at 57.
39 Id.
26 No. 14‐3241
found Ramos’s testimony on this matter “very credible.”40 See
United States v. Bernal‐Benitez, 594 F.3d 1303, 1319–20 (11th
Cir. 2010) (finding confession voluntary even though officer
wrote down the defendant’s statement in English, a language
the defendant did not speak, because trial court found the of‐
ficers’ accounts of the substance of the interrogation credible).
Furthermore, Mr. Carrion’s sole example of a mistransla‐
tion does not persuade us that the trial court clearly erred in
concluding that Detective Delgadillo’s translations were ac‐
curate. In the reply brief and at oral argument, appellate de‐
fense counsel emphasized that Ramos’s and Detective Delga‐
dillo’s translations of Mr. Carrion’s answer to the question,
“Well, you went in there to take something, right?” were in
41
conflict. Counsel argued that Detective Delgadillo translated
Mr. Carrion’s answer as “Well, I don’t know. If I went in there,
if I saw something that maybe I would like to take … ,” but
Ramos testified that Mr. Carrion’s answer in fact was “I don’t
even know what I was going to do when I went in there.”42
This mistranslation, counsel suggested, was determinative at
trial of whether Mr. Carrion entered Zymali’s apartment with
the requisite intent.
The language cited by counsel, however, comes not from
the witnesses’ testimony but from Mr. Carrion’s trial counsel
during closing arguments. The actual testimony of Detective
Delgadillo and Ramos provides a more complete picture.
40 Id. at 149; see also id. at 57.
41 Oral Argument at 00:59–2:06; Reply Br. 23.
42 Reply Br. 23.
No. 14‐3241 27
First, Ramos testified that, through Detective Delgadillo,
Mr. Carrion was asked the question, “And what happened
43
when you got close to your home [?]” According to her,
Mr. Carrion responded, “I … well … I look down and I saw a
… the apartment and I saw the light on. It seemed like an easy
thing to do, I don’t know. I became curious … I didn’t even
know what I was going to do … ,” and then was interrupted.44
Detective Delgadillo’s translation of Mr. Carrion’s answer to
the same question, however, omitted the final phrase, “I
45
didn’t even know what I was going to do.” This appears to
be the inconsistency to which trial counsel referred in his clos‐
ing argument and that counsel in this court similarly empha‐
sized, although both counsel misstated the question that was
posed.
This discrepancy between the two translations, however,
is innocuous when considered in fuller context. During direct
examination at trial, Ramos went on to testify about two ad‐
ditional exchanges that took place during the video interview.
According to her translation, Mr. Carrion was asked the ques‐
tion, “When you first came in the apartment, what were you
46
looking for [?]” Mr. Carrion answered, “I didn’t even know
what I wanted, I just got in to see what thing … just to look
around … I didn’t even know what I was going to take, it’s
43 R.17‐14 at 54.
44 Id. at 54–55.
45 Id. at 3.
46 Id. at 55.
28 No. 14‐3241
like … ,” and then was interrupted.47 Detective Delgadillo’s
translation was essentially the same: “I didn’t even know
48
what I was looking for, what I was going to take.” Addition‐
ally, Ramos testified on cross‐examination that the prosecutor
asked Mr. Carrion, “[Were] you looking for something to
49
take?” According to her translation, Mr. Carrion responded,
“Well … possibly yes. If I had found something that … .”50
Detective Delgadillo was not asked about this exchange dur‐
ing his testimony.
Upon review of the complete trial testimony, we cannot
conclude that the inconsistency that Mr. Carrion has identi‐
fied between the translations made by Detective Delgadillo
and Ramos renders clearly erroneous the trial court’s finding
that Detective Delgadillo’s translations were accurate. Cf.
Lind, 542 F.2d at 599 (finding confession through Spanish‐
speaking FBI agent and another individual acting as transla‐
tors not coerced where agent “[a]t all times … was able to ver‐
ify the accuracy of the translation”).
The totality of the circumstances, therefore, militates in fa‐
vor of the conclusion that Mr. Carrion’s confession was vol‐
untary and that it was not the product of coercion.
47 Id. at 56.
48 Id. at 5.
49 Id. at 74.
50 Id.
No. 14‐3241 29
C.
Mr. Carrion’s final contention derives from his coerced
confession argument. He argues that his appointed counsel
on direct appeal provided ineffective assistance by failing to
challenge the admission of the confession under the Due Pro‐
cess Clause. We have held that “[t]he filing of an Anders brief
that fails to point out meritorious issues can, in principle, con‐
stitute ineffective assistance.” Steward v. Gilmore, 80 F.3d 1205,
1213 (7th Cir. 1996). However, because we have concluded
that Mr. Carrion’s involuntary confession claim is without
merit, we also reject his related claim of ineffective assistance.
Warren v. Baenen, 712 F.3d 1090, 1104 (7th Cir. 2013) (rejecting
petitioner’s argument that court‐appointed sentencing coun‐
sel was ineffective because “[c]ounsel is not ineffective for
failing to raise meritless claims”); see also United States v. Stew‐
art, 388 F.3d 1079, 1085 (7th Cir. 2004) (“Stewart’s counsel can‐
not have been ineffective for failing to pursue what we have
concluded would have been a meritless [claim].”); Stone v.
Farley, 86 F.3d 712, 717 (7th Cir. 1996) (“Failure to raise a los‐
ing argument, whether at trial or on appeal, does not consti‐
tute ineffective assistance of counsel.”).
Conclusion
For the foregoing reasons, we affirm the district court’s de‐
nial of the habeas petition.
AFFIRMED