Ernesto Valle v. Kim Butler

Filing

Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Diane P. Wood, Chief Judge; William J. Bauer, Circuit Judge and Joel M. Flaum, Circuit Judge. [6864814-1] [6864814] [16-2612]

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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 7, 2017
Decided August 28, 2017
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
No. 16-2612
ERNESTO VALLE,
Petitioner-Appellant,

Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.

v.
No. 14 C 4264
KIM BUTLER,
Respondent-Appellee.

Matthew F. Kennelly,
Judge.
ORDER

An Illinois jury found Ernesto Valle guilty of first-degree murder, see 720 ILCS
5/9-1(a)(1), and also found that he personally had discharged a firearm that killed the
victim, triggering a 25-year sentencing enhancement, see 730 ILCS 5/5-8-1(a)(1)(d)(iii).
Valle argued on direct appeal that the trial court erred by denying a motion to suppress
his confession. He contended that his will was overborne by, among other things, the
interrogating officers’ lies to him, his intellectual limitations, and his inability to sleep or
eat while in custody. The last state court to address this issue concluded that the trial
court did not err in admitting Valle’s confession and affirmed his conviction. Valle
renewed his claim in his petition for habeas corpus under 28 U.S.C. § 2254. The district

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court denied relief but nonetheless authorized Valle to bring this appeal. We affirm the
denial of Valle’s § 2254 petition.
The following facts are drawn from the state-court record. The state court’s
factual findings are presumed correct unless rebutted by clear and convincing evidence.
See 28 U.S.C. § 2254(e)(1); Schriro v. Landrigan, 550 U.S. 465, 473–74 (2007); Jones v. Butler,
778 F.3d 575, 578 (7th Cir. 2015).
On August 12, 2006, Jessie Lozano was shot and killed in Aurora, Illinois. People
v. Valle, 939 N.E.2d 10, 11 (Ill. Ct. App. 2010). Police questioned Valle about the
shooting, and he eventually confessed to the murder. Id. at 11, 14–15. Valle was charged
by indictment with first-degree murder. Id. at 11. He then moved to suppress his
confession, arguing that it was involuntary because he was particularly susceptible to
coercive and deceptive tactics used by the police. Id. The state trial court conducted a
hearing on Valle’s motion to suppress his confession. Id. The state appellate court
described the suppression hearing in meticulous detail:
At the suppression hearing, Detective Jeff Parrish of the Aurora
police testified that he was the lead investigator on the Lozano case. He
started questioning defendant at around 2:55 a.m. on August 13, 2006.
This interview lasted about two hours, but with breaks and changes of
personnel. A second interview took place starting at approximately
10:20 p.m. the same day. Between the two interviews, the police held
defendant in the booking area, in a cell with a bunk.
The State offered digital video discs (DVDs) of the interrogation,
and the court admitted them without objection from defendant. Parrish
admitted that police records suggested that defendant had never
previously been arrested for any criminal offenses. He agreed that the
DVDs showed the presence of Special Agent Larissa Camacho of the FBI.
Camacho displayed to defendant a DVD that she claimed contained a
recording of an “overhear” in which defendant, at a party, bragged of his
committing the Lozano shooting. She also claimed that the victim was an
FBI informant. Parrish agreed that both of these claims of Camacho’s were
false.
The parties stipulated that Officer John Munn of the Aurora police
had interviewed Hector Delgado, defendant’s friend, and that Delgado,

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before the interrogation of defendant, had implicated defendant. The State
then asked the court to watch the four DVDs on which the police recorded
the interrogation. We now describe the contents of those DVDs.
The first disc is captioned “8/13/2006 1:34 AM.” As it opens,
defendant is seated in an armless metal and plastic chair. A bare desk with
a desk chair is to his left. There is a window with closed blinds over the
desk. He soon appears to be dozing. About 24 minutes after the start of
the recording, Aurora police detectives come in and introduce themselves
as “Jeff” and “Darryl.” One brings out a rights waiver form and asks him
about his English and reading comprehension. They go through the form,
and defendant reads the first line aloud awkwardly. He reads the entire
form silently and immediately signs. The detectives mostly address
defendant as “dude.” Defendant addresses each detective as “sir”
throughout.
Asked to describe what he did the previous night, defendant says
he started at a family party at his house, went to another large party on
Coolidge at about 11:30, got sick and “wasted,” and went home with his
friends Hector and Chris at about 1:10 a.m.
The detectives tell him that people from the Coolidge party,
including Chris and Hector, have connected him with a shooting, that
others have picked him out of a photo lineup, and that this is his chance to
tell the truth. Defendant gives more details of the evening, denying
knowledge of the shooting and asking to take a lie detector test. That
portion of the interview lasts for about 15 minutes.
The officers leave defendant sitting for about six minutes, saying
that they are going to get a photograph of the victim. The officers then
take defendant to a restroom.
After a minute, all return, and the officers start to press defendant
to explain an inconsistency in his description of the evening. Defendant
emphasizes that he was extremely intoxicated. The officers tell him that
they already know what happened, suggest that there might have been a
“legitimate reason” for the shooting, but tell him that he will not have
another chance to credibly explain that reason. Defendant continues to

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deny his involvement. He asks for a cigarette, and they leave, saying that
they will bring him one. This portion of the interview lasts for 12 minutes
and the break that follows lasts for 5 minutes.
The detectives return with an ashtray and cigarettes. They start
questioning defendant about his association with the Latin Kings.
Defendant says he hangs around with “Spooky Lou.” They tell him that
he “got [his] crown” last night, that he got “the blessing.” He denies it.
They ask him how he can be so disrespectful of the Kings when he had
just been made a member.
The officers’ tone shifts toward the intense, with frequent use of
phrases like “no fucking around.” They tell defendant that Hector has
implicated him. Defendant starts to become upset. He swears that he was
not involved. Things continue to intensify, with one detective moving his
chair closer and closer to defendant’s. Defendant continues his denials.
The detectives reduce the intensity of the questioning and begin to
suggest to defendant that the shooting might have been self-defense or
otherwise excusable. One detective suggests that someone put him up to
it. The other tells him that if the shooting were done in the heat of the
moment or in self-defense, it would not be premeditated. They tell him
that they are going to give him a while to consider his position, and they
leave. He asks for water, but does not get it. This portion of the interview
lasts for 10 minutes.
After a break of about seven minutes, two new detectives, “Bill”
and “John,” come in. They tell defendant that they are the ones who have
been interviewing Hector. The tone is calm again. Defendant describes the
evening again, and they tell him that Hector's story is very different. They
say that “Hector spilled it” and that he is “putting shit” on defendant.
They also say that others at the party also say his story is wrong. They tell
him that they already know that he got his crown.
One detective takes a sympathetic tone. He pushes the idea that the
shooting was “an accident” and that defendant was a victim himself
because the Kings pressured him into it. He suggests that the Kings might
have hurt him if he did not do as they said, and that the shooting therefore
was self-defense. Then he suggests that defendant did not intend to kill

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the victim and says that an accident is very different from premeditated
murder.
This detective now tells defendant that Hector completely betrayed
him and that Chris has made a deal. The other detective takes a harsher
tone. He tells defendant that, if he denies getting “blessed,” the Kings will
“violate” him. The other detective stands up, moves close to defendant,
and starts shouting at him. He continues to suggest that the shooting was
an “accident.” He says that the difference between an accident and a
premeditated murder is what defendant can use to avoid a life sentence.
Next, he turns to arguing that the Kings’ hierarchy is treating defendant as
“their little bitch.”
Defendant begins to repeatedly ask the detectives what they want
him to say. One detective asks for “something to work with.” This
detective shouts at defendant repeatedly, telling him that he is the victim,
but not to “waste [his] breath” denying that he did it. One detective asks
the other if it “was a chrome 0.45 or black” and the other says “black.”
Defendant tells the detectives that he is cold; he also asks for water. The
detectives leave. This portion of the interview lasts approximately 28
minutes. After five minutes, they bring him a blanket and water.
Defendant pulls the blanket around him.
The next disc starts at, by its caption, about 3:45 a.m. Defendant has
the blanket around him and his head down. He appears to be sleeping.
The original detectives return six minutes after the recording starts. They
tell him that the other detectives think that he deserves another chance to
explain himself, but that they are skeptical. They tell him that an
explanation now will “carry a lot of weight.” Defendant continues to deny
his involvement, and the detectives leave, displaying frustration with him.
This portion lasts for seven minutes.
The next disc starts, according to the caption, at 9:17 p.m. The
recording opens with two officers escorting defendant into a room much
like the first, but windowless. They state that the time is 10:17 p.m. They
leave him sitting in an armless chair. He pulls his arms inside his T-shirt
and crosses them. After about six minutes, two men and a woman enter.
They introduce themselves as Jeff Parrish (“Jeff” from the first night) and

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“Rob Wallace,” both of the Aurora police, and Special Agent Camacho of
the FBI. Camacho tells defendant that it is a crime to lie to her. She
displays a compact disc (CD) or a DVD in a plastic case and tells
defendant that someone at the party was wearing a wire that picked up
defendant bragging about the shooting. She also says that the victim was
her informant, making the matter potentially a federal offense.
Camacho suggests to defendant that the matter can be kept at the
state level, but tells him that, in a federal prosecution, he will get “85%
time.” She says that she knows that defendant “shook up” with “Ric Dog”
and that he “got the blessing.” She suggests that if he can convince the
Aurora officers that he did not know that he was killing an FBI informant,
the FBI will be willing to leave it as a state matter. Like the Aurora
detective, she also suggests that the shooting was an “accident.”
Defendant describes his actions with little change from his previous
tellings except he says that at “Chonnie’s” he was telling a “bullshit lie”
about what he had done and did not think that anyone had really been
shot. Camacho tells him that his choices are either they will play the tape
in court, she and her informants will testify, and he will be “fucked,” or he
can tell the truth. Defendant asks whether, if he says what they want him
to, they will go easy on him. They say that maybe there is a “legitimate
reason” the shooting happened. Defendant offers to take a lie detector test.
He is crying, or nearly so. Camacho says that Ric Dog did not “shake up”
with him for no reason and starts reciting who was at the party.
Defendant becomes angry and suggests that, if they bring in Chris and
Hector, everything will be cleared up.
They say again that defendant was seen “shaking it up” with
Ric Dog, the Latin Kings’ enforcer. Defendant admits shaking up. They tell
him that they found gunshot residue in the car. One detective tells him to
“get it off his chest.” He says that the best thing defendant can say is
“‘I screwed up.’” Defendant says, “I screwed up.”
Defendant says that “it was a mistake” and that he “thought it was
someone else.” They ask him where the shooting happened. He says that
he does not know, that it was somewhere on the east side. They ask him if
it could have been near Liberty and the Oak Park School. He agrees that it

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could have been. He says he met with Hector and Chris at a party at his
house, went from there to the party with the Kings, and stayed there
awhile. He then left, sitting in the front seat of Hector’s car with Hector
driving and Chris in back. In the back of the car was a 9–millimeter Glock
semiautomatic with a chrome finish, a “nation’s” (gang-owned) gun.
Defendant saw a “guy” in a vehicle going the opposite direction
and started “mad dogging” 1 him. He got out of the car and Hector drove
around the block. He shot three times at the vehicle. He did not know at
whom he was shooting. The victim was the first person he saw, and he
could not see the vehicle. He ran back to Hector’s car without seeing what
happened to the vehicle or the driver.
Defendant tells the three that they did not go back to the party after
that, but Camacho tells him that of course he did. He agrees with her. He
says that, back at the party, he “shook up” with Ric Dog. He agrees that
Ric Dog was the Kings’ enforcer and had given him his crown on the spot.
One detective says that defendant must have given Ric Dog a “play by
play,” but defendant says that he had just said that he had “hit him up.”
Questioned about how sure he is about the appearance of the
weapon, defendant becomes less certain, saying that he thought that the
detectives had told him that the weapon was a 9-millimeter Glock. They
ask him if he has ever committed any other murders. He says that he has
not. This portion of the interview lasts for 33 minutes.
The caption now says that it is 10:18 p.m. Eleven minutes after the
recording begins, detectives enter and ask defendant to identify
photographs. Asked to go over the details again, he says that he does not
remember the locale of the shooting or where in the street he was standing
when he shot. He says that he, Chris, and Hector left the party at his house
at about 9:30 or 10 p.m. They went to “Spooky Lou and Chonnie’s” house
and stayed there for about an hour. They left with Hector driving and
cruised around for less than an hour. Hector told him that there was a
gun, a semiautomatic, behind the seat. Defendant is now not sure whether

1

Apparently, staring at a person threateningly.

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the gun was black or chrome. He now tells the detectives that the shooting
took place before they ever went to the party on Coolidge.
Describing the shooting again, he says that Hector pulled over, let
him out, and told him that the car would be around the corner. A car came
toward him, and he shot three times at it as it was coming up to him; he
shot from “far away.” He could not say anything about the vehicle. He ran
to Hector’s car, which was waiting for him around the corner, and got in.
He said, “let's go to the spot.” Only then did they go to the party. The first
person he saw was Ric Dog. He said to Ric Dog that he “hit someone up,”
and Ric Dog “welcomed [him] home.” He, Hector, and Chris all “shook
up” with Ric Dog. They stayed for less than 30 minutes. They left, he was
driven to his home, and the others went to White Castle. He passed the
gun to Hector in the car. Defendant tells the detectives that the victim was
just a person passing down the street. He was not sure exactly what it
meant to have “come home.”
The detectives ask defendant how they had treated him. He says
that he could not eat in booking, but agrees that they had offered him
food. After a short break, the detectives ask defendant if he can verify the
conversation that Camacho recorded. He says he cannot remember any
details. He asks if he can lie down, and they say that they can bring him a
blanket to lie on the floor. The officers leave 38 minutes after the recording
begins, and 56 minutes after it begins, they return to take him to booking.
They are sympathetic, offer him food, and say they will arrange to let him
talk to his family. They leave, and nothing more happens until the
recording ends.
After watching the recording, the court continued the hearing for
several days. Resuming the hearing, it ruled that the State shifted the
burden of showing involuntariness to defendant.
Defendant then testified that he had been 18 years old on
August 13, 2006. He had graduated from East Aurora High School, but
had been in special education all four years because he “had trouble
understanding.” He had never before been arrested or interrogated. The
police had taken him into custody at around 1 a.m. When arrested, he had
been in bed for a few minutes and was not asleep. He had slept until noon

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on August 12. When the police took him into custody, he had recently
been at a party and had drunk four or five beers. He did not know when
he had last eaten. While he was in the detention cell, he did not eat
because he was not hungry. He was tired, but could not sleep.
After another recess of several days, the court ruled that the
inculpatory statements were admissible. It stated its factual conclusions. It
found that the officers did not falsely suggest sympathy. It recognized that
the tone of the interviews sometimes became accusatorial and that the
officers “slid their chairs into defendant’s space” and shook a finger at
defendant. It noted that Camacho had engaged in deception. The court
accepted the validity of the Miranda warnings. It found that defendant had
been articulate and responsive in his answers throughout the
interrogation.
Id. at 11–16.
A jury trial ensued. The state’s case relied heavily on Valle’s confession and
testimony from two eyewitnesses. Valle countered with evidence that he was at home
sleeping when the shooting occurred. The jury found Valle guilty of first-degree murder
and also found that he personally discharged the firearm that killed Lozano. He was
sentenced to 45 years’ imprisonment.
Valle appealed to the Appellate Court of Illinois, arguing that his confession was
coerced in violation of the Fifth and Fourteenth Amendments. Specifically he argued
that his confession should have been suppressed because he (1) was 18 years old,
(2) had never been arrested or interrogated previously, (3) spent much of his time in
school in special education classes, (4) had consumed several beers prior to the
interrogation, (5) did not eat because he was too tired, and (6) was subjected to
“subterfuge, trickery, and coercion” by police “in their attempts to obtain a confession.”
The appellate court evaluated the trial judge’s decision under a bifurcated standard that
gave deference to the judge’s factual findings but not his legal conclusions. Valle,
939 N.E.2d at 18. The appellate court also recognized that, in reviewing whether Valle’s
confession was voluntary, it
must consider the totality of the circumstances of the particular case; no
single factor is dispositive. Factors to consider include the defendant’s age,

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intelligence, background, experience, mental capacity, education, and
physical condition at the time of questioning; the legality and duration of
the detention; the presence of Miranda warnings; the duration of the
questioning; and any physical or mental abuse by police, including the
existence of threats or promises.
Id. at 17. The appellate court then concluded that the trial judge’s tacit finding that Valle
was not unusually susceptible to the officers’ tactics was not against the manifest
weight of the evidence. Id. at 20. The court acknowledged that “police aggression and
deception are factors that weigh in favor of finding involuntariness” but it concluded
that the degree of each employed while questioning Valle had not rendered his
confession involuntary. Id. at 20–21. Last, the court addressed Valle’s contention that the
officers had increased the chances of a false confession, but it concluded that Illinois
does not weigh police deception as heavily as other states that had invalidated
confessions under similar circumstances. Id. at 22.
The Supreme Court of Illinois denied further review, People v. Valle, 239 Ill. 2d
584 (Ill. 2011), and after exhausting other postconviction claims not relevant here, Valle
filed this § 2254 action. He claimed that allowing his confession into evidence “denied
his constitutional right to due process and a fair trial.” The district judge concluded that
the Illinois appellate court’s decision rejecting this contention was neither contrary to
nor an unreasonable application of clearly established federal law and denied Valle’s
petition. The judge opined that the tactics used by Valle’s interrogators might be more
likely to lead to a “false confession” but recognized that the Supreme Court has not held
that the voluntariness analysis must take into account whether police tactics increased
the probability of precipitating a false confession.
On appeal Valle argues that the decision of the Illinois appellate court was both
contrary to and an unreasonable application of clearly established federal law. He
insists that his motion to suppress should have been granted based on the fact that the
police lied and were aggressive.
A federal court cannot issue a writ of habeas corpus on a claim decided on the
merits by a state court unless that decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court” or was “based on an unreasonable determination of the facts.”
28 U.S.C. § 2254(d). A state-court decision is contrary to clearly established federal law
“if it applies a rule that contradicts the governing law set forth” in Supreme Court

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decisions or “confronts a set of facts that is materially indistinguishable from” a
Supreme Court decision but comes out differently. Brown v. Payton, 544 U.S. 133, 141
(2005); see Johnson v. Pollard, 559 F.3d 746, 752–53 (7th Cir. 2009). And an unreasonable
application of clearly established federal law “must be objectively unreasonable, not
merely wrong; even clear error will not suffice.” White v. Woodall, 134 S. Ct. 1697, 1702
(2014) (quotation marks and citation omitted); see McManus v. Neal, 779 F.3d 634, 649
(7th Cir. 2015). The petitioner bears the burden of showing that the state court’s decision
involved an error “well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011);
see Quintana v. Chandler, 723 F.3d 849, 855 (7th Cir. 2013). This deferential approach
applies even if the state court did not fully articulate its reasons or gave no reasons for
its outcome. See Harrington, 562 U.S. at 102; Hanson v. Beth, 738 F.3d 158, 163–64 (7th
Cir. 2013).
The Illinois appellate court’s decision is not contrary to clearly established
federal law. Valle accuses the state court of failing to “discuss, cite or consider a single
federal opinion,” but his argument lacks merit because the cases relied on by the state
court and the factors those decisions identify are consistent with Supreme Court
precedent. See Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (explaining that a “state court
need not even be aware of” Supreme Court precedents so long its reasoning and result
do not contradict them); Gilbert v. Merchant, 488 F.3d 780, 793 n.2 (7th Cir. 2007). The
state appellate court correctly recognized that the voluntariness analysis requires
evaluating the totality of the circumstances and recited a range of relevant
circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Carter v. Thompson,
690 F.3d 837, 843 (7th Cir. 2012). And it properly recognized that no single factor is
dispositive. See Brown v. Illinois, 422 U.S. 590, 603 (1975); Gilbert, 488 F.3d at 793. Valle
also has not identified a decision—nor have we found one—of the Supreme Court with
a set of indistinguishable facts that obtained a different result.
Valle next insists that the state appellate court unreasonably applied the totalityof-the-circumstances test. He primarily takes issue with the interrogating officers’ lies,
which standing alone, he argues, should have led to suppression of his confession. But
the appellate court did not unreasonably apply clearly established federal law because
nothing suggests that the court impermissibly balanced the factors before it. The
appellate court correctly recognized that police deception is one factor to be considered,
see Frazier v. Cupp, 394 U.S. 731, 739 (1969), and it reasoned that the tactics used by
Valle’s interrogators were not so coercive given his lack of any special susceptibility to
police tactics. Valle, 939 N.E.2d at 20–21. We have “repeatedly held that a

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law-enforcement agent may actively mislead a defendant in order to obtain a
confession, so long as a rational decision remains possible.” United States v. Sturdivant,
796 F.3d 690, 697 (7th Cir. 2015). The officers’ lies to Valle misrepresented the strength
of the evidence they had gathered against him, but lies concerning a suspect’s
connection to the crime are least likely to render a confession involuntary. United States
v. Ceballos, 302 F.3d 679, 695 (7th Cir. 2002); Holland v. McGinnis, 963 F.2d 1044, 1051 (7th
Cir. 1992). Moreover, while Valle argues that the police promised him that a confession
would result in a lighter sentence, that contention is belied by the appellate court’s
description of the interrogation. Rather, the interrogators suggested that the shooting
might have been an “accident” and that Valle’s explanation “would carry a lot of
weight.” These techniques are similar to others we have said fall short of a false promise
of leniency that could invalidate a confession. See United States v. Villapando, 588 F.3d
1124, 1128–29 (7th Cir. 2009) (rejecting claim that false promise of leniency was made by
officer who stated she would “sit down” with law enforcement to “work this out” and
also said “we don’t have to charge you”); United States v. Rutledge, 900 F.2d 1127, 1128,
1131 (7th Cir. 1990) (declining to suppress confession where officer told suspect that
“his cooperation would be helpful,” since “the law permits the police to pressure and
cajole, conceal material facts, and actively mislead—all up to limits not exceeded here”).
Valle also argues that the state court unreasonably applied the totality-of-thecircumstances test because he was held for 36 hours and was questioned during two
“lengthy” interrogation sessions, he was “probably” still drunk from consuming beers
before his arrest, and his time in special education classes during high school signal a
limited intellectual capacity. But he is asking us to reweigh the factors considered by the
appellate court as if § 2254(d) does not exist. The appellate court considered these and
other circumstances when it described the interrogation and concluded that Valle was
not especially susceptible to police tactics. Valle, 939 N.E.2d at 20; see also Carter, 690 F.3d
at 843 (concluding that the appellate court did not violate Schneckloth when it did not
repeat all the relevant background facts in its analysis of whether the petitioner’s
confession was voluntary). Valle has not pointed to any decision suggesting that this
approach was an unreasonable application of clearly established federal law.
AFFIRMED.