Miranda, Brian v. Leibach, Blair

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3452

BRIAN MIRANDA,

Petitioner-Appellant,

v.

BLAIR J. LEIBACH,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 01 C 2024—Michael P. McCuskey, Chief Judge.

____________

ARGUED FEBRUARY 10, 2004—DECIDED JANUARY 20, 2005

____________

Before RIPPLE, ROVNER, and WOOD, Circuit Judges.

ROVNER, Circuit Judge. A jury convicted Brian Miranda

of first-degree murder, and the trial court sentenced him to

serve 30 years in prison. After exhausting his state court

remedies, Miranda petitioned for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The district court denied his

petition. We affirm.

I.

In the early evening of October 13, 1993, 15-year-old

Michael Ryan was killed on the northwest side of Chicago

2 No. 02-3452

by a gunshot to the back of his head. On the following day,

having learned that 16-year-old Frank Perez had been seen

in the vicinity of the shooting and that Ryan had been

having trouble with a boy named Frankie, police officers

went to the Perez apartment to speak with him.

When the officers arrived at around 2:30 in the afternoon,

Frank Perez was watching television along with Michael

Chavez and Brian Miranda (ages 15 and 17, respectively) in

the living room of the residence. Perez was summoned to

the kitchen, where the rear entrance to the second-floor

apartment was located. What happened next was disputed.

According to police officers, Perez, followed by Miranda

and Chavez, voluntarily stepped outside of the apartment

at the officers’ request to answer questions about the shoot-

ing. After Chavez revealed to one of the officers that it was

Perez who shot Ryan, Perez was arrested, handcuffed, and

taken to a police station. Miranda and Chavez were not

arrested, but voluntarily accompanied the police to the

station for further questioning.

Miranda, Perez, and Chavez told a different story. They

testified that as soon as Perez entered the kitchen, the

police, who had entered the apartment without permission,

handcuffed him on the spot. Officers then entered the living

room with guns drawn, ordered Miranda and Chavez

against the wall, frisked them, and handcuffed both of them.

All three were then taken to the police station in handcuffs.

Miranda and Chavez were questioned separately at the

station. Again, the circumstances surrounding that ques-

tioning were disputed. Police officers testified that neither

Miranda nor Chavez was under arrest at that time, and

that both young men voluntarily cooperated with the ques-

tioning. By contrast, Miranda testified that on arrival at the

station, he was taken to a windowless holding room and

handcuffed to a ring on a wall. Chavez testified that al-

though his handcuffs were removed on arrival at the

No. 02-3452 3

station, he did not feel free to leave the station and, in fact,

was not released until the following day, after he testified

before a grand jury.

At approximately 3:30 that afternoon, Chavez told a

detective during questioning that Miranda had supplied the

gun that Perez had used to shoot Ryan. Armed with this

information, police resumed questioning of Miranda.

Upon being confronted with Chavez’s statement at around

4:00 p.m., Miranda confessed his involvement in the shoot-

ing and led police to the gun that Perez had used to kill

Ryan. Shortly before 8:00 p.m., after the gun had been re-

covered, Miranda gave a formal statement under question-

ing by an Assistant State’s Attorney and after being ap-

prised, on the record, of his rights under Miranda v.

Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). That state-

ment was transcribed by a court reporter and signed by

Miranda.1

Miranda was charged with first-degree murder pursuant

to an accountability theory. Under Illinois law, one person

is legally accountable for a crime committed by another

when, before or during the offense, he aids (or tries to aid)

the planning or commission of the crime with the intent

to facilitate or promote the commission of the crime. 720

ILCS 5/5-2(c); see Huynh v. Bowen, 374 F.3d 546, 548-49

(7th Cir. 2004); McFowler v. Jaimet, 349 F.3d 436, 439 (7th

Cir. 2003).

1

The record indicates that once Miranda was confronted with

Chavez’s statement, he gave a total of three statements acknowl-

edging that he had supplied Perez with the gun that Perez used

to kill Ryan, the last of these being Miranda’s formal, court-re-

ported statement. It appears that all three statements were sim-

ilar if not identical in their substance. For convenience, we shall

therefore refer to these statements collectively as Miranda’s post-

arrest statements or his confession.

4 No. 02-3452

Prior to trial, Miranda moved to quash his arrest and to

suppress any and all statements (including the court-re-

ported confession) that authorities had elicited from him

pursuant to the arrest. It was Miranda’s contention that

police had arrested him at the Perez residence, well before

they had any information linking him to the shooting and

thus without probable cause. The trial judge conducted an

evidentiary hearing at which Miranda, Perez, Chavez, three

of the police officers who were present at the Perez res-

idence, and a number of other individuals testified. At the

conclusion of that hearing, the judge found that Miranda

had been arrested without probable cause at the Perez res-

idence. G2-3. The focus of the proceeding then turned to

whether, as the State argued, Miranda’s statements at the

police station were sufficiently attenuated from his arrest

as to demonstrate that those statements were the product

of free will rather than the illegal arrest. See Brown v.

Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62

(1975). After entertaining further argument on that point,

the trial judge concluded that Chavez’s statement impli-

cating Miranda in the crime was a sufficient intervening

cause of Miranda’s confession so as to purge the taint of the

illegal arrest and render Miranda’s confession voluntary

and admissible at trial. C7, M38.

Miranda was tried before a jury. The State’s evidence at

trial revealed that Miranda, Perez, Chavez and Ryan had all

belonged to a street gang known as the Imperial Gangsters.

Perez headed the small, local section of that gang. Ryan and

another member, Sean Joyce, had decided to withdraw from

the gang, but neither had undergone what gang members

referred to as a “violation,” which entailed a three-minute

beating from head to toe by the entire gang and was

considered a prerequisite to a member being allowed to

depart the gang. As a result, the gang had issued what

members referred to as an S.O.S. or “smash on sight” order

against Ryan and Joyce. Apparently, it was that order that

No. 02-3452 5

culminated in Ryan’s death. Two months earlier, Ryan’s

mother had heard Perez threaten Ryan’s life. On the even-

ing of the shooting, Perez and Chavez went to Miranda’s

house, where Miranda supplied Perez with a .38-caliber

automatic revolver that he had obtained from another gang

member. Perez told Miranda that he needed the gun in

order to “take care of business” with Ryan and Joyce. The

three of them then rode their bikes around the neighbor-

hood looking for Ryan and Joyce. They found Ryan at a

nearby J.J. Peppers convenience store. After some discus-

sion between Perez and Ryan, Ryan left the store with the

others, ostensibly to take Perez to meet with Joyce. Ryan

and Perez rode together on Perez’s bike, with Ryan at the

handles and Perez behind him. As the group bicycled to the

meeting with Joyce, Perez took the gun that Miranda had

given him from his pocket and shot Ryan in the head. Ryan

fell to the ground; the others fled. Miranda and Perez rode

their bikes to Perez’s house, where Perez returned the

revolver to Miranda, along with a sawed-off shotgun. After

cleaning the revolver, Miranda hid the guns in his bedroom,

where they remained until he led the police to them the

next day.

Miranda’s court-reported confession was published to

the jury during the trial. P237-P249. In that statement,

Miranda acknowledged, among other things, that he had

given the revolver to Perez at Perez’s request, that Perez

told him he needed a gun in order to “take care of business,”

that he understood Perez to mean that he wanted to kill

someone, that Perez told him it was either Ryan or Joyce

that he meant to kill, that he accompanied Perez on the

night of the shooting knowing this was Perez’s intent, that

he witnessed the shooting, that Perez used the gun he had

given to him to kill Ryan, and that he hid that gun in his

bedroom following the shooting.

Miranda testified in his own defense and repudiated cer-

tain aspects of his court-reported statement. He denied, for

6 No. 02-3452

example, that Perez told him on the night of the shooting

that he was going to “take care of business” or that he was

going to shoot anyone. He asserted that he had accompa-

nied Perez on Perez’s order. He denied seeing Perez take

the gun out of his pocket to shoot Ryan. But he acknowl-

edged having given the gun to Perez and then hiding that

gun and the shotgun in his bedroom following the shooting.

He testified that he and Ryan were good friends who had

known each other since they were three years old.

The jury convicted Miranda of first-degree murder. The

trial judge later sentenced Miranda to a prison term of 30

years. Miranda filed a written motion for a new trial, R03,

which the trial judge denied. Omitted from the boilerplate

arguments made in that motion was any challenge to the

judge’s attenuation ruling.

Miranda appealed his conviction to the Illinois Appellate

Court, arguing that the trial court had erred in finding that

his confession was sufficiently attenuated from his illegal

arrest to be considered voluntary and admissible at trial.

Miranda conceded, however, that he had not properly

preserved the issue for appeal by raising it in his motion for

a new trial. R. 9 Ex. A at 12; id. Ex. C at 3. In view of the

omission, Miranda asked the appellate court to review this

issue for plain error. R. 9 Ex. A at 12; id. Ex. C at 3.

Miranda contended that the trial court, in holding that

Chavez’s inculpatory statement was a sufficient intervening

cause of his confession, had overlooked the fact that

Chavez’s statement was the fruit of Chavez’s own illegal

arrest; consequently Chavez’s statement could not serve to

purge the taint of Miranda’s illegal arrest from Miranda’s

confession. R. 9 Ex. A at 14 & id. Ex. C at 6-7, citing, inter

alia, People v. Avery, 534 N.E.2d 1296, 1302 (Ill. App. Ct.

1989).

The appellate court affirmed Miranda’s conviction. People

v. Miranda, No. 1-96-1381, Summary Order (Ill. App. Ct. 1st

No. 02-3452 7

Dist. Aug. 29, 1997) (unpublished) (hereinafter, the “Sum-

mary Order”). In accord with Miranda’s request, the court

reviewed the trial court’s decision to admit his confession

into evidence for plain error. Id. at 1. The court acknowl-

edged Avery’s holding that the inculpatory statement of one

illegally arrested individual could not serve as a sufficient

intervening cause of another illegally arrested person’s

confession. Id. at 3, citing Avery, 534 N.E.2d at 1302. How-

ever, the court found this case factually distinguishable

from Avery:

Unlike Avery, Chavez, a witness to the shooting, was

not illegally arrested. His statement to the police not only

provided them with probable cause to arrest defendant,

but also was an intervening circumstance which dissi-

pated the taint of the illegal arrest. The police officers

here, moreover, did not engage in official misconduct,

but acted on information collected from witnesses.

Defendant, further, was given Miranda warnings prior

to his confession. Although not much time elapsed be-

tween defendant’s arrest and his subsequent confession,

the key to whether the passage of time constitutes suf-

ficient attenuation depends considerably upon whether

any intervening circumstances occurred during the time

period. As aforementioned, Chavez’s statement to the

police was a sufficient intervening circumstance which

served to dissipate the taint of defendant’s illegal

arrest.

For the foregoing reasons, the circuit court’s finding

of sufficient attenuation to purge the taint of the illegal

arrest was not manifestly erroneous. Accordingly, the

defendant’s conviction and sentence are affirmed.

Summary Order at 4. The Illinois Supreme Court denied

Miranda’s petition for leave to appeal, and the United

States Supreme Court subsequently denied his petition for

a writ of certiorari.

8 No. 02-3452

Miranda subsequently filed a pro se petition for post-

conviction relief in the Circuit Court of Cook County. R. 9

Ex. I. In that petition, he again challenged the admission of

his confession into evidence. The trial court summarily

dismissed the petition without conducting an evidentiary

hearing. Although Miranda appealed from the dismissal of

his post-conviction petition, he did not pursue the admis-

sion of his confession any further.

Having exhausted his state court remedies, Miranda filed

a pro se petition for a writ of habeas corpus in the district

court. The district court denied the petition in an unpub-

lished order. R. 17.

At the outset, the court noted that a habeas petitioner

ordinarily cannot pursue a Fourth Amendment challenge to

his conviction in federal court so long as he had a full and

fair opportunity to litigate the claim in state court. Id. at 3,

citing Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037,

3046 (1976). Miranda contended he was denied this oppor-

tunity in that the Illinois Appellate Court disposed of his

Fourth Amendment claim based on a key factual deter-

mination (that Chavez was not under arrest) which lacked

fair support in the evidentiary record. The district court

found itself unable to resolve this contention definitively

because the parties had not submitted the complete record

of the trial court proceedings on Miranda’s motion to quash

his arrest and suppress his post-arrest statements. How-

ever, on the limited record before it, the court agreed with

Miranda that there seemed to be a lack of record support for

the notion that Chavez was not under arrest: the trial judge

appeared to have found that Chavez, like Miranda, was

handcuffed at the Perez residence, and Chavez himself had

testified both that he was handcuffed at the apartment and

that, despite the subsequent removal of the handcuffs at the

police station, he did not feel free to leave until the following

day, after he had testified before the grand jury. The court

therefore assumed that Miranda had been deprived of a full

and fair opportunity to litigate his Fourth Amendment

No. 02-3452 9

claim in the Illinois courts and that federal habeas review

of that claim was permitted. R. 17 at 3-6.

The court rejected the State’s argument that Miranda had

committed a procedural default that blocked review of this

claim in habeas corpus. Miranda had failed to pursue the

Fourth Amendment issue in his post-trial motion for a new

trial and the Illinois Appellate Court, in view of that

default, had reviewed the issue solely for plain error. None-

theless, the district court determined that Illinois courts do

not follow a consistent practice with respect to issues

omitted from post-trial motions. Specifically, Illinois cases

reflect an inconsistency as to whether an exception for con-

stitutional issues will permit review of such issues when

they were raised at trial but not in a post-trial motion.

Given the lack of uniformity vis-à-vis that exception, the

district court concluded that the procedural default was not

well enough established in Illinois law as to constitute an

adequate and independent basis for the Illinois Appellate

Court’s decision. Therefore, federal review of the Fourth

Amendment claim was not barred by the procedural default.

R. 17 at 6-8.

Nonetheless, the district court concluded that habeas

relief was foreclosed to Miranda on another ground. The

premise of Miranda’s Fourth Amendment claim was that

because Chavez was under arrest without probable cause

when he made the statement inculpating Miranda, his

statement could not serve as a sufficient intervening cause

of Miranda’s confession that purged the taint of Miranda’s

own unlawful arrest. However, the district court found no

binding authority holding that only legally obtained evi-

dence can constitute a sufficient basis for breaking the

chain of causation between a defendant’s illegal arrest and

his post-arrest confession. A holding to that effect would

amount to a new rule of constitutional law, and Teague v.

Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), precludes habeas

relief based on a new constitutional rule. R. 17 at 8-9.

10 No. 02-3452

The district court denied Miranda’s request for a certifi-

cate of appealability. R. 23; see 28 U.S.C. § 2253(c)(1)(A);

Fed. R. App. P. 22(b)(1). We later issued such a certificate

and appointed counsel for Miranda.

II.

A. Procedural Default

We review de novo a district court’s determination as to

procedural default. Page v. Frank, 343 F.3d 901, 905 (7th

Cir. 2003). When the last state court to issue an opinion on

a petitioner’s federal claim has resolved that claim on an

adequate and independent state ground, federal habeas re-

view of the claim is foreclosed. E.g., Lambrix v. Singeltary,

520 U.S. 518, 523, 117 S. Ct. 1517, 1522 (1997) (coll. cases).

Typically this occurs when the petitioner failed to comply

with a state procedural rule and the state court relied on

that procedural default to refrain from reaching the merits

of the federal claim. See Coleman v. Thompson, 501 U.S.

722, 729-30, 111 S. Ct. 2546, 2554 (1991) (coll. cases). A

state ground is deemed “independent” for this purpose “only

if the state court actually relied on a state rule sufficient to

justify its decision.” Prihoda v. McCaughtry, 910 F.2d 1379,

1382 (7th Cir. 1990). The adequacy of the state ground is a

question of federal law, Lee v. Kemna, 534 U.S. 362, 375,

122 S. Ct. 877, 885 (2002); the ground is considered “ade-

quate” only if the state court applies the rule “in a consis-

tent and principled way,” Prihoda, 910 F.2d at 1383. The

adequate and independent state ground doctrine is subject

to equitable exceptions. If the petitioner can demonstrate

cause for his failure to comply with the state rule and

prejudice resulting from the default, or alternatively that a

miscarriage of justice will occur if he is not granted relief,

then a federal court may reach the merits of his claim

notwithstanding the adequate and independent basis for

the state court ruling. Harris v. Reed, 489 U.S. 255, 262,

No. 02-3452 11

109 S. Ct. 1038, 1043 (1989).

In this case, there is no dispute as to the independence of

the ground on which the Illinois Appellate Court disposed

of Miranda’s Fourth Amendment claim. Illinois law requires

a convicted defendant to include any and all claims of error

in a post-trial motion for a new trial. 725 ILCS 5/116-1;

People v. Enoch, 522 N.E.2d 1124, 1129-30 (Ill. 1988).2 The

failure to comply with this requirement amounts to a waiver

of the claim. Id. (coll. cases).3 The Illinois Appellate Court,

noting that Miranda had not pursued this issue in his post-

trial motion, limited its review of this claim to one for plain

error, pursuant to Illinois Supreme Court Rule 615(a). R. 17

at 1. Rule 615(a), in relevant part, provides that “[p]lain

2

The Illinois Supreme Court in Enoch reiterated the reasons for

the requirement that a defendant preserve by way of a post-trial

motion any issues that he wishes to pursue on appeal:

Failure to raise issues in the trial court denies that court the

opportunity to grant a new trial, if warranted. This casts a

needless burden of preparing and processing appeals upon

appellate counsel for the defense, the prosecution, and upon

the court of review. Without a post-trial motion limiting the

consideration to errors considered significant, the appeal is

open-ended. Appellate counsel may comb the record for every

semblance of error and raise issues on appeal whether or not

trial counsel considered them of any importance.

522 N.E.2d at 1130 (quoting People v. Caballero, 464 N.E.2d 223,

227 (Ill. 1984)).

3

We are using “waiver,” which is the term the Illinois cases typ-

ically use, in the broadest sense, to signify a forfeiture of the

claim. See United States v. Richardson, 238 F.3d 837, 841 (7th Cir.

2001). True waiver entails the intentional relinquishment of a

known right, which is not normally established by the mere

failure to comply with a procedural requirement such as the filing

of a post-trial motion. See Lewis v. Sternes, 390 F.3d 1019, 1029

(7th Cir. 2004).

12 No. 02-3452

errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the trial

court.” As we have previously recognized, an Illinois court

does not reach the merits of a claim simply by reviewing it

for plain error. See, e.g., Neal v. Gramley, 99 F.3d 841, 844

(7th Cir. 1996); see also Rodriguez v. McAdory, 318 F.3d

733, 735 (7th Cir. 2003) (coll. cases). Consequently, the

plain-error analysis engaged in by the appellate court did

not cure Miranda’s default. Id.

The dispute instead focuses on whether the waiver rule

was an adequate ground for the Illinois Appellate Court’s

decision not to reach the merits of his Fourth Amendment

claim. Miranda contends, and the district court agreed, that

the waiver rule is not adequate because the Illinois courts

do not apply the rule in a consistent way. Their quarrel is

not with the basic proposition that an issue must be raised

in post-trial motion in order to be preserved for appeal. As

we recognized in White v. Peters, 990 F.2d 338, 340 (7th Cir.

1993), that requirement has had a statutory basis since at

least 1963 and has been repeatedly recognized and applied

in Illinois cases. The concern, rather, is with the appellate

court’s unwillingness to apply an exception to the rule that

the Illinois Supreme Court identified in Enoch. Although

Enoch reaffirmed the obligation to preserve an issue by way

of a post-trial motion, it also recognized three exceptions to

this requirement, one of which is relevant here. Enoch

indicated that the failure to include a constitutional claim

in a post-trial motion will not constitute a waiver of that

claim if the defendant raised the issue at trial and the issue

is one that could be raised on post-conviction review. 522

N.E.2d at 1132; see also People v. McCallister, 737 N.E.2d

196, 214-15 (Ill. 2000) (applying exception to reach eviden-

tiary ruling in capital case not raised in post-trial motion

“because it concerns defendant’s due process right to

present a defense and because the claim was raised by the

defense at trial”).

No. 02-3452 13

However, as the district court recognized, the Illinois ap-

pellate courts are divided as to whether the constitutional-

issue exception applies in non-capital cases. Enoch itself

was a capital case, and the Illinois Supreme Court set forth

the exceptions to the waiver rule while discussing the

breadth of its review in cases where the death penalty had

been imposed. 522 N.E.2d at 1131-32. In People v. Alexander,

the Illinois Appellate Court for the First District (which em-

braces Cook County, where Miranda was tried) concluded

that Enoch’s exception for constitutional issues raised at

trial did not apply in cases where the death penalty had not

been imposed, but rather that such issues were reviewed for

plain error alone. 571 N.E.2d 1075, 1083 (Ill. App. Ct.

1991).

We . . . hold that review of even a constitutional issue

is waived by failure to properly preserve it in a post-

trial motion, unless the error reasonably could have

affected the verdict or if it would have resulted in a

failure to afford the defendant due process of law. We

believe that the holding in Enoch was clearly intended

to govern direct reviews by the Illinois Supreme Court

of “cases in which a sentence of death was imposed,”

(Enoch, 122 Ill.2d 176 at 190, 119 Ill. Dec. 265, 522

N.E.2d 1124; Ill. Const. 1970, art. VI sec. 4(b)), and that

limiting our review to issues which could reasonably

have affected the verdict still adequately ensures that

serious injustices are corrected and that the integrity

and reputation of the judicial process is preserved.

People v. Young (1989), 128 Ill.2d [1] at 46, 131 Ill. Dec.

78, 538 N.E.2d 453.

571 N.E.2d at 1083. The court acknowledged that “the

authorities are not in harmony on this issue,” and that a

number of cases in the First District had reached the merits

of constitutional issues not properly preserved by way of a

post-trial motion. Id. The court did not believe that its

holding was irreconcilable with those cases, however. It rea-

14 No. 02-3452

soned that the constitutional errors asserted in those cases

either were entirely without merit or were so serious as to

have either compelled a new trial or to have foreclosed a

trial altogether. Id.

Unfortunately, the same division of authorities that

Alexander recognized and attempted to resolve has persisted

in the wake of that decision. Other appellate districts either

have expressly rejected Alexander’s holding or, without dis-

cussion of the conflict in authority, have reached the merits

of constitutional issues in non-capital cases notwithstand-

ing the fact that they were not preserved by way of post-

trial motions. See People v. Burnfield, 692 N.E.2d 412, 416

(Ill. App. Ct. 5th Dist. 1998) (expressly rejecting Alexander

and reviewing suppression issue notwithstanding defendant’s

failure to raise that issue in post-trial motion) (following

People v. Torres, 669 N.E.2d 1279, 1284 (Ill. App. Ct. 3d Dist.

1996) (acknowledging that failure to file post-trial motion

constituted “technical” waiver of suppression issue, but find-

ing that motion before or during trial sufficed to preserve

issue)); see also, e.g., People v. Moore, 804 N.E.2d 595, 598-99

(Ill. App. Ct. 4th Dist. 2003) (applying constitutional excep-

tion to reach due process and equal protection issues) (citing

People v. Cox, 693 N.E.2d 483, 485 (Ill. App. Ct. 4th Dist.

1998) (applying constitutional exception to suppression

issue)); People v. Komes, 749 N.E.2d 382, 386 (Ill. App. Ct.

2d Dist. 2001) (in a non-capital case, listing Enoch’s con-

stitutional exception as among exceptions to waiver rule

that might apply). Even within the First District, the cases

remain inconsistent in their discussion and application of

the waiver rule. Although we can find no published First

District decision that reaffirms and applies Alexander’s

holding, there are some decisions which, consistent with

Alexander (although not citing it), indicate that examination

of constitutional issues not properly preserved by way of,

inter alia, a post-trial motion is confined to plain-error re-

view. See People v. Dunn, 760 N.E.2d 511, 515-16 (Ill. App.

No. 02-3452 15

Ct. 1st Dist. 2001) (reviewing waived perjury claim for plain

error because it “alleges a violation of substantial consti-

tutional rights”); People v. Bowman, 758 N.E.2d 408, 419

(Ill. App. Ct. 1st Dist. 2001) (reviewing waived question

regarding jury selection for plain error “because this issue

affects the constitutional right to a fair trial”). But other

cases have engaged in a complete merits review of issues

not preserved in a post-trial motion, relying on Enoch’s con-

stitutional exception. See People v. Falls, 625 N.E.2d 313,

317-19 (Ill. App. Ct. 1st Dist. 1993) (reviewing suppression

issues implicating constitutional rights notwithstanding

court’s presumption that defendant had not preserved them

via post-trial motion); People v. Williams, 599 N.E.2d 1033,

1035 (Ill. App. Ct. 1st Dist. 1992) (“Although we conclude

that the claim of an illegal arrest has been waived, we will

review it in the interest of judicial economy, as it involves

a constitutionally based issue.”).

The ongoing inconsistency might be explained by the prin-

ciple, often recognized in Illinois cases, that waiver binds

the parties but not the courts. E.g., People v. Segoviano, 725

N.E.2d 1275, 1282 (Ill. 2000); People v. Farmer, 650 N.E.2d

1006, 1009 (Ill. 1995); see also People v. Terrell, 708 N.E.2d

309, 339 (Ill. 1998) (Freeman, C.J., concurring). Invocation

of that principle enables a court to “obtain[ ] a just result

and maintain[ ] a consistent body of precedent” notwith-

standing a defendant’s failure to preserve a claim of error.

Segoviano, 725 N.E.2d at 1282. Unfortunately, the uneven

application of the waiver rule and the exceptions to the rule

also makes it difficult, if not impossible, for litigants to

predict how the rule will be applied. Cf. Terrell, 708 N.E.2d

at 339 (Freeman, C.J., concurring) (criticizing majority’s

inconsistent application of waiver doctrine because, inter

alia, it “creates confusion for application of the doctrine in

future cases”).

Despite the inconsistent treatment of the waiver rule in

the Illinois courts, Miranda faces an uphill slope in the

16 No. 02-3452

effort to demonstrate that the rule is not an adequate basis

for the appellate court’s decision to abstain from the merits

of his Fourth Amendment claim. We often describe a rule

that might fail the adequacy test as one that is invoked

“infrequently, unexpectedly, or freakishly.” Prihoda v.

McCaughtry, supra, 910 F.2d at 1383; see also Page v.

Frank, supra, 343 F.3d at 908-09; Thomas v. McCaughtry,

201 F.3d 995, 1000 (7th Cir. 2000); Tredway v. Farley, 35

F.3d 288, 295 (7th Cir. 1994); Lilly v. Gilmore, 988 F.2d

783, 785 (7th Cir. 1993); Bobo v. Kolb, 969 F.2d 391, 399

(7th Cir. 1992); cf. Lee v. Kemna, supra, 534 U.S. at 376,

122 S. Ct. at 885 (“Ordinarily, violation of ‘firmly established

and regularly followed’ state rules . . . will be adequate to

foreclose review of a federal claim.”) (quoting James v.

Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 1835 (1984)).

It would be difficult to characterize the rule deeming claims

waived if not included in a post-trial motion as such an

aberrant rule. We noted in Prihoda that a rule need not be

followed strictly in order for it to constitute an adequate

ground for the state court’s decision. 910 F.2d at 1384 (“A

state ground that is solidly established will be respected

even though not ‘strictly’ followed”). Whatever inconsis-

tencies there may be in the Illinois courts’ application of the

rule, invocation of the rule as a procedural bar could hardly

be described as surprising, particularly in the First District,

where Miranda was convicted. See Braun v. Powell, 227 F.3d

908, 912 (7th Cir. 2000) (state rule not adequate if prisoner

could not fairly have been deemed to be apprised of its

existence at the time she acted); Thomas, 201 F.3d at 1000-

01 (same); but see Rosa v. Peters, 36 F.3d 625, 633-34 (7th

Cir. 1994) (finding that defendant’s failure to make a record

of the racial composition of the jury in support of his Batson

claim was not an adequate ground for state court finding

that the claim was barred, in view of fact that Illinois courts

do not uniformly require such a record); see also Thomas,

201 F.3d at 1001 (suggesting that rule applied in “inconsis-

tent” way would not be adequate ground for state court’s

decision). Moreover, our own cases have cited the waiver

No. 02-3452 17

rule as an adequate and independent ground for the

decisions of Illinois courts. E.g., Rodriguez v. McAdory,

supra, 318 F.3d at 735; White v. Peters, supra, 990 F.2d at

340-41 & n.1; see also Aliwoli v. Gilmore, 127 F.3d 632, 634

(7th Cir. 1997) (“If a claim is found to be waived by an

Illinois appellate court, that constitutes an independent and

adequate state ground and we will not entertain that

claim.”).

Indeed, in White, we rejected the notion that Illinois’

waiver rule was inadequate notwithstanding the petitioner’s

allegation that it was “frequently ignored” by the Illinois

courts. Id. at 340 n.1.

We believe that the rule requiring that all issues for

appeal be preserved in a written post-trial motion is

solidly established in Illinois law. The rule has had a

statutory source since at least 1963, see Ill. Rev. Stat.,

ch. 38 ¶ 116-1, and the Illinois Supreme Court has re-

peatedly held that issues not contained in a written

post-trial motion are waived on appeal even though a

timely objection was interposed at trial. See People v.

Szabo, 113 Ill.2d 83, 100 Ill. Dec. 726, 730, 497 N.E.2d

995, 999 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct.

1330, 94 L.Ed.2d 181 (1987); People v. Pickett, 54 Ill.2d

280, 296 N.E.2d 856, 857 (1973). People v. Enoch [on

which the Illinois Appellate Court had relied in finding

White’s claim waived] could be considered unexpected

only to the extent that it required compliance with the

written motion rule in capital as well as non-capital

cases. Consequently, we conclude that the procedural

rule upon which the Illinois Appellate Court relied in

refusing to consider White’s argument is “solidly es-

tablished” and thus that White’s default under that rule

bars relief in a federal habeas proceeding absent

showings of both cause and prejudice.

990 F.2d at 340-41 (footnote omitted).

18 No. 02-3452

To be sure, our opinion in White dealt not with any of the

exceptions to the waiver rule discussed in Enoch, but rather

with a purported practice in Illinois courts of allowing a

general oral motion for a new trial to substitute for a writ-

ten motion. See id. at 340. By contrast, here we are dealing

with an exception established by the Illinois Supreme Court

for constitutional issues, an exception that the Supreme

Court has not (yet) expressly limited to capital cases and

one that the state appellate courts have applied and con-

tinued to apply in non-capital cases. So, White does not

necessarily foreclose a determination that the waiver rule

is an inadequate ground for a state court’s decision as to a

constitutional claim that satisfies Enoch’s criteria for the

constitutional exception. Still, White does tend to negate the

notion that inconsistencies in the application of the waiver

rule will, in and of themselves, render the rule inadequate

for purposes of the procedural default inquiry. Id. at 340-41

& n.1; see also White v. Lane, 785 F. Supp. 768, 774-75

(N.D. Ill. 1992) (inconsistent appellate court practice

regarding exceptions to waiver rule did not render rule

inadequate), judgment aff’d, 990 F.2d 338.

In our view, what dooms Miranda’s argument vis-à-vis

the adequacy of the waiver rule is his own concession before

the Illinois Appellate Court that he had waived the Fourth

Amendment claim. At bottom, Miranda’s contention is that

the appellate court should have reviewed that claim on the

merits pursuant to Enoch’s exception for constitutional

issues properly raised at trial and amenable to review in

post-conviction proceedings. But Miranda never asked the

appellate court to apply that exception. Of course, it is quite

possible that had he done so, the court nonetheless would

have refused to entertain the claim on its merits and

confined its review to one for plain error, consistent with

Alexander. On the other hand, the court might have granted

his request, consistent with cases in the First District and

other appellate districts that have invoked Enoch’s constitu-

No. 02-3452 19

tional exception in non-capital cases. What is relevant for

our purposes is that the court was not asked to make that

choice. Miranda’s argument conceded that he had waived a

merits-based review of his claim and that, consequently, he

was entitled to no more than plain-error review. Miranda

stated as follows in his opening brief:

The issue was not preserved in the defendant’s motion

for a new trial. The defendant is asking this Court to

review the error, pursuant to Illinois Supreme Court

Rule 615(a), because [of] the magnitude of the alleged

error. Plain errors or defects affecting substantial rights

may be noticed although they were not brought to the

attention of the trial court. . . .

R. 9 Ex. A at 12. Miranda’s reply brief reiterated the con-

cession. Id. Ex. C at 3. Thus, any doubt as to whether the

court would have applied the constitutional exception is

beside the point. Miranda cannot claim to be the surprised

victim of an infrequent, unexpected, or freakish application

of the waiver rule when he conceded waiver and did not

invoke any exception that would have permitted more than

plain-error review. His own briefs before the Illinois

Appellate Court reveal that he was not only aware of the

waiver rule but anticipated that the rule would preclude a

merits review of his Fourth Amendment claim. There cer-

tainly is no indication that the appellate court blind-sided

Miranda or invoked the waiver rule in an unprincipled or

discriminatory way. See Prihoda, 910 F.2d at 1383 (lack of

notice and consistency in application of state rule may show

that state is discriminating against federal right asserted).

On the contrary, the court handled his claim in precisely

the manner that Miranda contended that the court should,

limiting its review to one for plain error. Under these cir-

cumstances, Miranda is in no position to argue that the

waiver rule is not an adequate ground for the Illinois

Appellate Court’s decision. Cf. DeSilva v. DiLeonardi, 181

F.3d 865, 867 (7th Cir. 1999) (habeas petitioners had for-

20 No. 02-3452

feited argument that Article III judge was required to con-

duct extradition proceeding, when at time of extradition

hearing they contended the opposite).

For these reasons, we conclude that the Illinois Appellate

Court’s disposition of Miranda’s Fourth Amendment claim

rests on an adequate and independent state ground, namely

that he waived the claim when he failed to assert it in a

post-trial motion for a new trial, as required by Illinois law.

Miranda has not argued that an equitable exception would

permit us to reach the merits of his claim notwithstanding

the procedural default. Consequently, federal review of this

claim is barred.

However, in an abundance of caution, and recognizing the

inconsistency in Illinois cases as to the availability of

appellate review for constitutional claims not preserved in

post-trial motions, we have gone on to consider whether

Miranda enjoyed a full and fair opportunity to litigate his

Fourth Amendment claim in state court. Lest there be any

doubt, our analysis as to the full and fair opportunity rep-

resents an alternative basis for our decision.

B. Full and Fair Opportunity

So long as a habeas petitioner enjoyed an “opportunity for

full and fair litigation of a Fourth Amendment claim” in

state court, federal habeas review of the claim is barred.

Stone v. Powell, supra, 428 U.S. at 481-82, 96 S. Ct. at 3046.

A petitioner has had the benefit of such an opportunity so

long as (1) he clearly apprised the state court of his Fourth

Amendment claim along with the factual basis for that

claim, (2) the state court carefully and thoroughly analyzed

the facts, and (3) the court applied the proper constitutional

case law to those facts. Pierson v. O’Leary, 959 F.2d 1385,

1391 (7th Cir. 1992); see also Cabrera v. Hinsley, 324 F.3d

527, 531-32 (7th Cir.), cert. denied, 540 U.S. 873, 124 S. Ct.

220 (2003); Hampton v. Wyant, 296 F.3d 560, 563-64 (7th

No. 02-3452 21

Cir. 2002). The full and fair hearing requirement applies

not only at the trial-court level in state court but also on

direct review of the petitioner’s conviction. See Stone, 428

U.S. at 489, 96 S. Ct. at 3050 (“The question is whether

state prisoners—who have been afforded the opportunity for

full and fair consideration of their reliance on the ex-

clusionary rule . . . by the state courts at the trial level and

on direct review—may invoke their claim again on federal

habeas corpus review.”) (emphasis supplied); see also, e.g.,

Hampton, 296 F.3d at 563-64; Turentine v. Miller, 80 F.3d

222, 225-26 (7th Cir. 1996).

Miranda contends that the Illinois Appellate Court de-

prived him of a full and fair opportunity to litigate his

Fourth Amendment claim in that it failed to carefully and

thoroughly analyze the facts. That failure, in Miranda’s view,

is evidenced by the appellate court’s determination, without

any explanation, that Chavez was not under arrest. Sum-

mary Order at 3. Whether an individual was seized by the

police is a highly fact-specific assessment that requires

consideration of the totality of the circumstances. United

States v. McCarthur, 6 F.3d 1270, 1275-76 (7th Cir. 1993).

We have indicated that when a state court’s Fourth Amend-

ment analysis turns on factual determinations that lack the

fair support of the record, we cannot say that the court

carefully and thoroughly analyzed the facts. Weber v.

Murphy, 15 F.3d 691, 694 (7th Cir. 1994); contra Willett v.

Lockhart, 37 F.3d 1265, 1270 (8th Cir. 1994) (en banc) (“We

conclude that under Stone a federal habeas court consider-

ing a state prisoner’s claim alleging a Fourth Amendment

violation should abstain from reviewing the state court rec-

ords to determine if the state court’s factual findings are

fairly supported by the record as a whole . . . .”); see also

Turentine, 80 F.3d at 225-26 (declining to overrule Weber in

light of Willett). Of course, we presume that a state court’s

factual determinations are correct. 28 U.S.C. § 2254(e)(1);

see Weber, 15 F.3d at 694-95. We have also made clear that

22 No. 02-3452

mistakes in a state court’s treatment of a petitioner’s Fourth

Amendment claim are not sufficient, in and of themselves,

to surmount the Stone bar. Turentine, 80 F.3d at 225-26; see

also Hampton, 296 F.3d at 563-64. Stone does not guarantee

a correct outcome on a Fourth Amendment claim but rather

an adequate opportunity to pursue the claim in the state

court system; thus, only if we are convinced that a habeas

petitioner was deprived of that opportunity may we reach

the merits of the claim. Cabrera, 324 F.3d at 531-32. An

“egregious error” in a state court’s Fourth Amendment

decision may suffice for this purpose, Turentine, 80 F.3d at

226, but not for the flaw it exposes in the state court’s

analysis but rather for what it reveals about the bona fides

of the state court’s handling of the Fourth Amendment claim,

Hampton, 296 F.3d at 564. As we explained in Hampton, “a

blunder, no matter how obvious, matters only in conjunction

with other circumstances that imply refusal by the state

judiciary to take seriously its obligation to adjudicate claims

under the fourth amendment.” Id. We shall assume,

without deciding, that if the Illinois Appellate Court’s deter-

mination that Chavez was not arrested lacked any basis in

the record, Miranda may have been deprived of a full and

fair opportunity to litigate his Fourth Amendment claim in

state court.

We note at the outset that the state trial court never

made a definitive ruling as to whether and when Chavez

was arrested by the police. Chavez was never charged with

a crime, so he was not a party to the state court proceeding.

Nonetheless, the trial court did have occasion to consider

how Chavez was treated by the police in the course of re-

solving Miranda’s motion to quash and suppress. As the

district court pointed out, the trial judge stated that he

thought the police put handcuffs on Chavez; he then added

that he was “not sure” whether Chavez was one of the two

people in the living room of the Perez residence but that

“[t]he two [people] that were in the living room were placed

No. 02-3452 23

into handcuffs.” M37; see R. 17 at 5. In its brief to the

Illinois Appellate Court, the State suggested that the trial

judge was referring to Perez and Miranda, not Chavez. R.

9 Ex. B at 43. But considered in context, the judge’s refer-

ence to the two young men in the living room could only

have meant Chavez and Miranda, for by the time police

officers entered the living room, Perez had already been

handcuffed in the kitchen. Moreover, as the district court

also pointed out, the police had no reason to treat Chavez

differently from Miranda at the Perez residence, as they

had no information at that point implicating anyone but

Perez in the crime. R. 17 at 5. It bears mentioning again

that the police denied having handcuffed or otherwise seized

either Miranda or Chavez at the Perez residence. But the

trial judge discredited that assertion as to Miranda, and he

appears to have likewise discredited it as to Chavez. It seems

altogether likely, then, that the judge would have found

that Chavez was arrested had he made an explicit finding

on that point.

But if we take it as a given that Chavez, like Miranda,

was illegally arrested at the Perez residence, that does not

necessarily mean that he remained under arrest throughout

the ensuing period of his cooperation with the authorities.

An individual’s wrongful custody can, of course, be brought

to an end, and when such a termination occurs, it can serve

to break the causal link between the illegal arrest and his

subsequent statements to the police. 6 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment,

§ 11.4, text accompanying n.182 (4th ed. 2004)

(“[t]ermination of the illegal custody, as in Wong Sun [v.

United States, 371 U.S. 471, 83 S. Ct. 407 (1963)], qualifies

as an intervening circumstance” that may purge post-arrest

confession of taint of unlawful arrest); see also, e.g., State v.

Miller, 921 P.2d 1151, 1157-58 (Ariz. 1996); Hanna v. State,

591 A.2d 158, 165 (Del. 1991); Sanchez-Velasco v. State, 570

So.2d 908, 914 (Fla. 1990). It is possible, then, that the

24 No. 02-3452

Illinois Appellate Court, focusing on the time at which

Chavez made his post-arrest statement implicating

Miranda in the shooting, concluded that Chavez was no

longer under arrest at that point in time and that his state-

ment was untainted by his wrongful arrest. The court’s

statement (“Chavez was not illegally arrested”) is not time-

specific and so does not preclude this possibility. We realize

that the court’s statement could be interpreted differently

(e.g., to mean that Chavez was never arrested). However,

having in mind that our task under Stone is not to decide

whether the court made a mistake in assessing the facts,

but rather whether it committed an error so grave as to

indicate that the court “closed [its] ears and mind[ ] to argu-

ment,” Hampton, 296 F.3d at 564, we believe ourselves

obliged to entertain any reasonable construction of the ap-

pellate court’s opinion. Because it is plausible to construe

the court’s statement as meaning that Chavez was not under

wrongful arrest when he implicated Miranda, we proceed to

consider whether the evidence supported such a finding.

For his part, the trial judge never reached the question of

whether Chavez remained in custody once he arrived at the

police station and underwent further questioning there.

However, an appellate court is empowered to make a fac-

tual determination, see Cereal Byproducts Co. v. Hall, 155

N.E.2d 14, 16 (Ill. 1958); Ill. Sup. Ct. R. 366(a)(4), and on

habeas review we must grant that determination the same

presumption of correctness as we would to a trial court’s

finding of fact. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449

U.S. 539, 546-47, 101 S. Ct. 764, 769 (1981); Mendiola v.

Schomig, 224 F.3d 589, 592 (7th Cir. 2000). Thus, so long as

there was an adequate evidentiary basis in the record for

finding that Chavez was not under arrest when he incul-

pated Miranda, we must defer to that finding and conclude

that the Illinois Appellate Court did not deprive Miranda of

a full and fair opportunity to pursue his Fourth Amendment

claim.

No. 02-3452 25

The district court, in assessing the evidentiary basis for

the Illinois Appellate Court’s analysis, was disadvantaged

by the lack of a complete record of the proceedings in the

trial court on Miranda’s motion to suppress. Based on the

limited record before it and the parties’ arguments, the dis-

trict court assumed that Miranda did not have a full and

fair opportunity to litigate his Fourth Amendment claim in

the Illinois courts, as it was not clear to the court what

basis the appellate court might have had for finding that

Chavez was not arrested. R. 17 at 5-6. We asked the Illinois

Attorney General to supplement the record with a complete

transcript of the proceedings that the trial court conducted

on Miranda’s motion to quash his arrest and suppress his

post-arrest statements. On review of that transcript, we con-

clude that there is fair support in the record for a finding

that Chavez was not under arrest when he implicated

Miranda.

There was testimony indicating that Chavez was not un-

der arrest at the time he told police that Miranda was the

source of the gun that Perez had used to shoot Ryan. Chavez

himself testified that he was handcuffed at the Perez res-

idence, A171, but that the cuffs were removed at the police

station, A175. Officer Frugoli, who was present at the Perez

residence when Perez was arrested, said that Chavez was

not in cuffs when he was taken to station, was not told he

was under arrest, and in fact was free to go. A83, A109-110,

A115. Detective Schak, who interviewed Chavez at the pol-

ice station, testified that Chavez was not in cuffs, was not

locked in the interview room, was not in custody, and had

come to the station voluntarily. A161-62. Assistant State’s

Attorney Studenroth, who took Chavez’s formal statement

that evening, testified that Chavez was not under arrest.

D7. In view of this testimony, the Illinois Appellate Court

was not without an evidentiary basis to find that Chavez

was no longer in custody by the time he gave the statement

that prompted Miranda to confess his involvement in the

26 No. 02-3452

shooting: multiple witnesses testified that Chavez was not

arrested and was not confined at the police station but

rather was voluntarily cooperating with the police, and even

Chavez agreed that the handcuffs were removed once he

arrived at the police station. Moreover, assuming, consis-

tent with this testimony, that Chavez’s illegal arrest had

been terminated upon or shortly after his arrival at the pol-

ice station, his subsequent statement inculpating Miranda

could plausibly be deemed the product of free will notwith-

standing the initial illegal arrest. See 6 LaFave, supra,

§ 11.4 n.182 (coll. cases).

Certainly there was contrary evidence presented to the

trial court. Chavez not only testified that he was handcuffed

at the Perez home, but both he and his father gave testi-

mony indicating that he was not free to leave the police

station even after the handcuffs were removed. Chavez

testified that he was told he could go home after he gave his

formal statement to the Assistant State’s Attorney, A177, but

ultimately he was kept at the station overnight (in anti-

cipation of his grand jury testimony the following morning)

even after he gave that statement, A178. His father con-

firmed that Chavez was detained at the station overnight

against the family’s wishes. A189-91. It also bears noting

that at 15 years of age, Chavez might not have appreciated

his ability to leave the police station even if he was not

overtly coerced into staying. In view of this evidence, a court

reasonably could have concluded that Chavez remained un-

der arrest when he gave the statement implicating Miranda.

However, the question before us is not whether (in our

view) the Illinois Appellate Court was right or wrong to find

that Chavez was not under arrest, but whether that finding

was so gravely mistaken, in view of the record evidence, as

to suggest that the Illinois Appellate Court was unwilling

to engage in a good faith review of Miranda’s Fourth

Amendment claim. See Cabrera v. Hinsley, supra, 324 F.3d

at 531-32; Hampton v. Wyant, supra, 296 F.3d at 563-64.

No. 02-3452 27

Because the court’s finding could be construed as one

focused on the point in time at which Chavez gave his

statement inculpating Miranda, and because there was at

least some evidentiary support for the court’s finding so

construed, we are bound to answer this question in the nega-

tive. Our inquiry is therefore at an end. Chavez had a full

and fair opportunity to litigate his Fourth Amendment

claim in state court, and thus, pursuant to Stone v. Powell,

further review of that claim in federal court is foreclosed.

III.

Having concluded that the Illinois Appellate Court re-

solved Miranda’s Fourth Amendment claim on an adequate

procedural ground independent of the merits of that claim

and, alternatively, that Miranda had a full and fair oppor-

tunity to litigate his Fourth Amendment claim in state

court, we AFFIRM the district court’s judgment denying

Miranda’s petition for a writ of habeas corpus. We thank

Miranda’s appointed appellate counsel for their vigorous

advocacy on his behalf.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—1-20-05