Germill Murdock v. Stephanie Dorethy
Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6808733-1]  [15-1660]
United States Court of Appeals
For the Seventh Circuit
GERMILL D. MURDOCK,
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:13‐cv‐01190‐CSB‐DGB — Colin S. Bruce, Judge.
ARGUED NOVEMBER 3, 2016 — DECIDED JANUARY 3, 2017
Before BAUER, MANION, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. In 2003, Petitioner Germill Murdock
was convicted in Illinois state court of first degree murder and
aggravated battery with a firearm. In the context of his
postconviction claim of ineffective assistance of counsel, a
suppression hearing was held to determine whether statements
Petitioner made to the police were voluntary, given that
Petitioner was 16 years old and gave the statements without an
attorney or other adult present. The trial court held that his
statements were voluntary and denied the motion to suppress.
Both the Illinois Appellate Court and the Illinois Supreme
Court affirmed that judgment. Petitioner then filed a petition
for a writ of habeas corpus under 28 U.S.C. § 2254. The district
court denied the petition, finding that the Illinois Supreme
Court’s decision was not unreasonable. We affirm.
In October 2001, Petitioner was charged with first degree
murder, aggravated battery with a firearm, and aggravated
discharge of a firearm for his role in the death of Eric Eppinger
and the wounding of Sam Clark, Jr. After two mistrials due to
deadlocked juries, a third jury convicted Petitioner of the
murder and aggravated battery charges.
A. Trial and Petitioner’s Statements to Police
The evidence presented by the state established that on
September 4, 2001, Petitioner drove Shereaf Fleming and
Cortez Trapps to a park in Peoria, Illinois, where Fleming and
Trapps shot and killed Eppinger and wounded Clark. The
principal issue was whether Petitioner knew about or was a
part of Fleming’s and Trapps’ plan to shoot Eppinger when he
agreed to drive them to the park.
Detective Michael Mushinsky of the Peoria Police Depart‐
ment gave the following testimony at trial: Approximately two
weeks after the shooting, Petitioner, who was 16 years old, was
involved in a traffic stop. Upon learning his identity, the
officers brought him to the police station to question him about
the shooting. When they arrived at the station, Mushinksy
informed Petitioner that he was investigating Eppinger’s
murder and advised Petitioner of his Miranda rights. Petitioner
stated that he understood his rights and agreed to speak with
Mushinksy told Petitioner what he knew about the case and
asked Petitioner to tell him exactly what happened. Petitioner
said that Trapps and Fleming told him that Eppinger was at
Logan Park and that they wanted Petitioner to drive them
there because they were going to shoot Eppinger. Petitioner
told them he did not want to drive them, but he did so any‐
way. As they approached Logan Park, they saw Eppinger’s car,
and Fleming told Petitioner to park in a nearby alley. After
Petitioner parked, Trapps and Fleming pulled their shirts over
their faces, pulled out guns, and walked in the direction of
Eppinger’s car. After a minute, Petitioner heard gunshots and
saw Trapps and Fleming running back to the van. Trapps and
Fleming got back in the van and told Petitioner to drive away.
As they drove, Trapps said he had killed Eppinger.
After the initial interview with Mushinksy, Petitioner gave
a written statement, which provided essentially the same
information that Petitioner had told Mushinsky. Petitioner
wrote that he initially told Trapps and Fleming not to “go
after” Eppinger, but that he drove them anyway. The written
statement was entered into evidence at trial.
After providing the statement, Petitioner signed a video
release form and agreed to give a videotaped statement, which
was also entered into evidence and played for the jury.
Mushinksy testified that he read Petitioner his Miranda rights
again before recording the statement. On the recording,
Mushinsky read Petitioner his Miranda rights once more and
Petitioner stated that he understood and waived his rights.
Petitioner stated that he was answering Mushinsky’s questions
voluntarily. He agreed that he had not been struck, abused, or
threatened by anyone to obtain his statement and that no
officer had made him any promises of immunity or leniency.
He also stated that he had been allowed to go to the bathroom,
eat, and drink if he needed.
The recorded statement differed slightly from the written
statement. On the recording, Petitioner said that when Trapps
and Fleming asked him to drive them, they told him to “come
on” and “not to worry about” where they were going. As they
drove, Fleming stated that he knew that Eppinger was at
Logan Park. As they approached the park and saw Eppinger
parked in his car, Fleming said “we fixing to get him.” Peti‐
tioner stated that prior to arriving at the park, neither Fleming
nor Trapps said anything about shooting Eppinger. He stated
that he saw the guns for the first time when he parked in the
alley. Petitioner suspected that Trapps and Fleming brought
the guns into the van without his knowledge by hiding them
under their shirts. Petitioner recounted the rest of the events as
he had in the written statement.
Petitioner did not testify at trial. The jury convicted him of
first degree murder and aggravated battery with a firearm. He
was sentenced to consecutive terms of 24 years for the murder
and eight years for the aggravated battery.
B. Postconviction Proceedings
Petitioner filed a direct appeal arguing that his trial counsel
was ineffective for failing to file a motion to suppress his
statements to police as involuntary. In an unpublished opinion,
the Illinois Appellate Court affirmed his conviction and
advised that his ineffective assistance claim was better suited
for postconviction proceedings.
Petitioner filed a pro se postconviction petition in the circuit
court on May 24, 2005. He again claimed that his statements
were involuntary and should have been suppressed, noting
that there was no juvenile officer present and that he was not
given the opportunity to speak with a guardian or concerned
adult. The circuit court appointed counsel and held an eviden‐
tiary hearing on May 4, 2007.
At the hearing, Petitioner’s grandmother, Dottie Robinson,
testified that Petitioner was living with her at the time of his
arrest in 2001. She testified that Petitioner called her and told
her to come to the police station on the day he gave the
statements to Mushinsky. When she arrived at the station, she
told the receptionist that she wanted to see Petitioner. She was
told to wait and sometime later, a detective came out and told
her that he was questioning Petitioner. She asked again, but
was not allowed to see Petitioner. On cross‐examination, she
admitted that she was not Petitioner’s legal guardian. She also
expressed uncertainty as to whom she spoke with at the police
station. Petitioner testified that upon arriving at the police
station, he asked to call his grandmother and Mushinsky said
no. Petitioner testified that he was not allowed to make a
phone call. Mushinksy testified that Petitioner never asked to
speak with his grandmother and that Mushinsky never saw or
spoke with Petitioner’s grandmother. The circuit court denied
the postconviction petition, finding that Petitioner could not
have prevailed on a motion to suppress the statements.
The appellate court reversed. It held that, based on the
totality of the circumstances, there was a reasonable probabil‐
ity that Petitioner would have succeeded in quashing the
statements. It remanded to the circuit court with instructions
to conduct a complete suppression hearing.
The suppression hearing was held on January 21, 2010. The
state’s only witness was Mushinsky. Mushinsky testified that
he first encountered Petitioner on September 21, 2001, during
the traffic stop. Prior to that time, Mushinsky had interviewed
other witnesses and had probable cause to believe that Peti‐
tioner was involved in the shooting at Logan Park. He testified
that he and another officer brought Petitioner to the police
station and had him wait in an interview room. Petitioner was
not handcuffed, but was not free to leave. Mushinsky asked
Petitioner if he wanted anything to eat or drink, but Petitioner
declined. He read Petitioner the Miranda warnings from a
printed card, and Petitioner said he understood and agreed to
speak with Mushinsky.
Mushinsky testified that he called Petitioner’s grandfather
to inform him that Petitioner was at the station. Mushinsky
stated that Petitioner’s grandfather came to the station, but
never asked to speak with Petitioner. Mushinksy said that
Petitioner never asked to see or speak to either of his grandpar‐
ents, never asked to see an attorney, and did not refuse to
speak with Mushinsky at any point during the interview.
Mushinsky testified that he did not make any promises to
Petitioner, nor did he threaten or coerce him in any way. He
gave Petitioner a Miranda waiver form before the video
interview, read it to him, and Petitioner signed it. According to
Mushinsky, Petitioner never seemed to be in distress.
On cross‐examination, Mushinsky said that if Petitioner
had asked, he would have been allowed to see a parent or
guardian. He stated that, during the interview, he was acting
as both the investigating officer and the juvenile officer.
Mushinsky denied that he told Petitioner he would not be
charged if he gave up the “trigger man.”
Petitioner testified that he was handcuffed during the traffic
stop and taken to the police station. He stated that Mushinsky
began to ask him about the shooting without first reading his
Miranda rights. He testified that Mushinsky told him that if he
gave up the “trigger man,” he would be allowed to go home.
Petitioner stated that he made requests to see a parent or
guardian to both Mushinksy and another officer at the station.
He agreed that Mushinsky read the Miranda warnings before
the video statement, but said that he did not fully understand
them. Petitioner testified that he felt tired and scared while
making the video statement.
On January 28, 2010, the circuit court denied the motion to
suppress in an oral ruling. The court held that, although he
was a juvenile, Petitioner “had the mental capacity to under‐
stand his situation, [the] proceedings, his rights, and to make
a voluntary decisions and statements.” The court found that
the officers did not threaten or coerce the Petitioner and that
his testimony that he was scared was belied by his demeanor
in the video. The court was concerned by the fact that an adult
was not present for the interview, but also noted that there was
no evidence that Petitioner’s grandfather requested to see
Petitioner and was denied that opportunity. The court held,
based on the totality of the circumstances, that Petitioner’s
statements were voluntary.
The appellate court affirmed, holding that the circuit court’s
findings were not against the manifest weight of the evidence.
The Illinois Supreme Court granted leave to appeal and also
affirmed, with three justices dissenting. The Illinois Supreme
Court first made clear that it was reviewing only the evidence
from the suppression hearing held on January 21, 2010,
declining Petitioner’s request to consider his grandmother’s
testimony from the 2007 evidentiary hearing.1 The Illinois
Supreme Court relied on the circuit court’s factual findings,
agreeing that Mushinsky was more credible than Petitioner.
The court considered Petitioner’s age and the absence of a
parent or attorney, but found that “the absence of a concerned
adult did not create a coercive atmosphere so as to render
[Petitioner’s] statements involuntary.” The court noted that
Petitioner seemed to understand and waive his Miranda rights;
that he was not threatened or coerced; that he was given access
to food, drink, and restrooms; and that he did not appear to be
under distress. The court held, based on the totality of the
circumstances, that Petitioner “made his statements freely and
voluntarily and absent any compulsion of inducement.”
Petitioner then filed a petition in federal court seeking relief
under 28 U.S.C. § 2254. The district court denied the petition.
It held that the Illinois Supreme Court’s decision that his
statements were voluntary was not unreasonable. This appeal
Petitioner’s trial, the 2007 evidentiary hearing, and the 2010 suppression
hearing were held in front of three different judges. Petitioner’s grand‐
mother did not testify at the 2010 hearing, and the presiding judge was not
otherwise made aware of her previous testimony.
We review a district court’s denial of a habeas petition
de novo. Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir. 2009)
(citation omitted). Where a state court has adjudicated a habeas
petitioner’s claim “on the merits,” the Antiterrorism and
Effective Death Penalty Act (AEDPA) limits the circumstances
under which a federal court can grant a habeas petition. See 28
U.S.C. § 2254(d).
As an initial matter, Petitioner argues that the AEDPA does
not apply here because his core claim was not “adjudicated on
the merits” by the Illinois Supreme Court. Petitioner’s post‐
conviction ineffective assistance claim was denied by the
circuit court after the evidentiary hearing in May 2007. On
appeal, the case was remanded for a full suppression hearing
without directly addressing the ineffective assistance claim
under Strickland v. Washington, 466 U.S. 668 (1984). Because
what followed was an appeal from the circuit court’s denial of
the motion to suppress on remand, Petitioner now argues that
the Illinois Supreme Court did not adjudicate his Strickland
claim “on the merits,” and therefore, the AEDPA does not
We disagree. Petitioner’s ineffective assistance claim was
premised on his counsel’s failure to file a motion to suppress
his statements prior to his trial. Under Strickland’s two‐pronged
analysis, a defendant must first show that his counsel’s
performance was deficient. Id. at 687. Then, the defendant must
show that, but for counsel’s failure, the result of the proceeding
would have been different. Id. at 694. In this case, the second
prong requires a determination of whether Petitioner would
succeed on a motion to suppress his statements as involuntary.
That is precisely the question that the circuit court an‐
swered—and that the Illinois Supreme Court reviewed—after
the January 21, 2010 suppression hearing. Therefore, regardless
of whether the Illinois courts analyzed his claim explicitly
under the Strickland framework or as a standalone suppression
issue, Petitioner’s claim has been “adjudicated on the merits”
and AEDPA deference applies.
Where, as here, a state court adjudicates a prisoner’s claim
for postconviction relief, the AEDPA mandates that a federal
court may grant a habeas petition only if the state court
decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States;” or if it “resulted in
a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). We apply these standards to
the decision of the Illinois Supreme Court as that was the last
state court that substantively adjudicated Petitioner’s claim.
Gonzales, 565 F.3d at 379.
We must first set forth the “clearly established Federal law”
at issue. The voluntariness of a confession is determined by
analyzing “the totality of all the surrounding circum‐
stances—both the characteristics of the accused and the details
of the interrogation.” Shneckloth v. Bustamonte, 412 U.S. 218, 226
(1973). “Special caution” is required when evaluating a
confession made by a juvenile. In re Gault, 387 U.S. 1, 45 (1967).
“In juvenile cases, the totality approach requires an ‘evaluation
of the juvenile’s age, experience, education, background, and
intelligence’ as well as the circumstances regarding the
confession.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.
2002) (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)).
Those circumstances include the length of the interrogation
and whether the juvenile had a parent, lawyer, or other adult
present. Etherly v. Davis, 619 F.3d 654, 661 (7th Cir. 2010)
(citation omitted); see also Gallegos v. Colorado, 370 U.S. 49, 55
(1962). The voluntariness determination, though, does not turn
on the presence or absence of a single factor, but instead
requires “careful scrutiny of all the surrounding circum‐
stances.” Schneckloth, 412 U.S. at 226; see also Hardaway, 302 F.3d
at 766 (“[T]he mere fact that [petitioner] was 14 and questioned
without an adult present does not by itself render his confes‐
sion involuntary, but it does require that a court conduct a
searching review of the facts … .”).
We find, and Petitioner does not dispute, that the Illinois
Supreme Court applied the correct governing law to determine
whether Petitioner’s statements were voluntary. Thus, Peti‐
tioner’s main argument on appeal is that the Illinois Supreme
Court unreasonably applied that governing law. Under the
AEDPA, “an unreasonable application of federal law is different
from an incorrect application of federal law.” Williams v. Taylor,
529 U.S. 362, 410 (2000). “A state court decision must be more
than incorrect from the point of view of the federal court … .”
Hardaway, 302 F.3d at 762. It must also be unreasonable,
“which means something like lying well outside the bound‐
aries of permissible differences of opinion.” Id. (citing Wil‐
liams, 529 U.S. at 411). “If this standard is difficult to meet, that
is because it was meant to be.” Harrington v. Richter, 562 U.S.
86, 102 (2011).
In support of his argument, Petitioner attempts to analogize
the facts of his case to cases in which this Court and the
Supreme Court of the United States found the confessions of
juveniles to be involuntary. Specifically, Petitioner points to
Haley v. Ohio, 332 U.S. 596 (1942), Gallegos v. Colorado, 370 U.S.
49 (1962), and A.M. v. Butler, 360 F.3d 787 (7th Cir. 2004).
In Haley, a 15‐year‐old confessed to a murder after he was
questioned by police from midnight until 5:00 a.m., without an
attorney or other adult present, and without being advised of
his right to counsel. 332 U.S. at 598. In Gallegos, a 14‐year‐old
confessed to an assault and robbery after being held in a
juvenile facility for five days, during which time he did not see
a lawyer or other “friendly adult.” 370 U.S. at 49–50. In Butler,
a 10‐year‐old boy confessed to murdering his neighbor after he
was interrogated multiple times without his mother or another
friendly adult present. 360 F.3d 792–94. In all three cases, the
courts evaluated the totality of the surrounding circumstances
and determined that the confessions were involuntary. See
Gallegos, 370 U.S. at 55 (citing the factors that weighed in favor
of involuntariness); Haley, 322 U.S. at 600–601 (same); Butler,
360 F.3d at 800–801 (same).
Petitioner argues that, based on the analysis and outcome
of these three cases, the Illinois Supreme Court reached the
wrong outcome in his case. Under the AEDPA, however, that
is not the relevant inquiry. See Williams, 529 U.S. at 410 (Under
the AEDPA, “an unreasonable application of federal law is
different from an incorrect application of federal law.”). The
fact that some of the factors cited by the Haley, Gallegos, and
Butler decisions may also have been present in this case does
not mean that the Illinois Supreme Court was bound to come
to the same conclusion. A different conclusion in light of
similar facts does not render the Illinois Supreme Court’s
application of the law unreasonable. See Etherly, 619 F.3d at 662
(citation omitted) (“How much weight to assign each factor on
facts similar to those in [Petitioner’s] case may differ from
court to court, and reasonable jurists may certainly disagree.”).
What is important is that the court applied the correct test
in a reasonable manner. The court clearly considered, and
afforded some weight, to Petitioner’s age, as well as the fact
that he did not have an attorney or other adult present when
he gave his statements. It also found, however, that Petitioner
was able to understand and provide an adequate waiver of his
rights. Mushinksy read him those rights, and Petitioner waived
them, multiple times. The court considered the fact that
Petitioner was detained for approximately seven hours on the
day he gave his statements. However, it also noted that the
interview lasted only three hours and that Petitioner was given
the opportunity to eat and use the restroom throughout his
detention. There was no evidence that the officers threatened
Petitioner or otherwise created a coercive environment. The
court found that Petitioner did not appear to be under distress
or frightened on the video recording. Though Petitioner’s
grandfather was present at the police station, he never re‐
quested to speak with Petitioner. Despite the absence of a
concerned adult, the court found that the totality of the
circumstances indicated that Petitioner gave his statements
The Illinois Supreme Court correctly applied the total‐
ity–of–the–circumstances test and considered the appropriate
factors.2 No one factor is determinative in this analysis,
Schneckloth, 412 U.S. at 226, and reasonable minds can differ on
the results of such a balancing test. Etherly, 619 F.3d at 662. In
our view, the court’s application of the totality of the circum‐
stances test was not unreasonable because it does not lie “well
outside the boundaries of permissible differences of opinion.”
Hardaway, 302 F.3d at 762.
Finally, we address Petitioner’s argument that the Illinois
Supreme Court based its decision on an unreasonable determi‐
nation of the facts, an argument that requires little analysis.
Petitioner argues that the court improperly relied on his
demeanor as it appears on the video recording to make
findings about his condition throughout the entire interview.
This is simply not true. The portions of the Illinois Supreme
Court’s decision that Petitioner cites in support of this argu‐
ment clearly indicate that the court was discussing Petitioner’s
demeanor only during the period of time that was recorded.
The court did find that Petitioner was “in good physical
condition during his detention and interview,” but it made
clear that this finding was based on both the videotape and the
We note here that Petitioner argues that the Illinois Supreme Court erred
in declining to consider the testimony of Petitioner’s grandmother from the
2007 hearing. We disagree. On his initial appeal from that hearing,
Petitioner specifically requested, and received, a new suppression hearing.
Petitioner offers no explanation for why his grandmother did not testify
again and he does not contend that he was prevented in any way from
presenting her testimony at the 2010 hearing. Because it was not presented
to the fact finder at the 2010 hearing, the Illinois Supreme Court determined
it could not consider the testimony in its review on appeal. We find no
support, and Petitioner offers none, for finding error in that determination.
testimony from the suppression hearing. It is also true that the
court gave considerable weight to the video recording in its
overall balancing of factors. However, as we have demon‐
strated, we cannot quarrel with that balancing, given that it
was not unreasonable under the AEDPA’s standards. There‐
fore, we do not find the court’s factual determinations based on
the video to be unreasonable.
Petitioner has failed to demonstrate that the decision of the
Illinois Supreme Court involved an unreasonable application
of clearly established federal law or an unreasonable determi‐
nation of the facts. Therefore, under the AEDPA’s deferential
standard of review, we are compelled to accept the decision of
the Illinois Supreme Court.
For the foregoing reasons, the judgment of the district court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?