Arnold v. Butler

Filing 65

MEMORANDUM Opinion and Order written by the Honorable Gary Feinerman on 1/10/2017.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PARIS ARNOLD,
Petitioner,
vs.
JEFF HUTCHINSON, Warden,
Respondent.

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14 C 8501
Judge Gary Feinerman

MEMORANDUM OPINION AND ORDER
Paris Arnold, a state prisoner, petitions for a writ of habeas corpus under 28 U.S.C.
§ 2254. Doc. 14. On Arnold’s motion shortly after counsel appeared on his behalf, the court
stayed the case to allow him to obtain the contents of a newly discovered police file. Doc. 17.
After receiving and reviewing the file, Arnold voluntarily dismissed two claims, and the stay was
lifted. Doc. 19. The remaining claims assert that Arnold’s attorneys were ineffective in several
respects, in violation of the Sixth Amendment, and that key evidence at trial was the fruit of an
arrest made without probable cause, in violation of the Fourth Amendment. Doc. 14 at 8-9. The
habeas petition is denied, and a certificate of appealability will not issue.
Background
A federal habeas court presumes that the state courts’ factual findings are correct unless
they are rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Jean-Paul v.
Douma, 809 F.3d 354, 360 (7th Cir. 2015) (“A state court’s factual finding is unreasonable only
if it ignores the clear and convincing weight of the evidence.”) (internal quotation marks
omitted); Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012) (“We give great deference to
state court factual findings. After AEDPA, we are required to presume a state court’s account of

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the facts correct, and the petitioner has the burden of rebutting the presumption of correctness by
clear and convincing evidence.”) (internal quotation marks omitted). The state trial court’s 2011
dismissal of Arnold’s post-conviction petitions was the state courts’ final word on the merits of
Arnold’s ineffective assistance claims. Doc. 30-16 at 115-20. The Appellate Court of Illinois
was the last state court to address the merits of Arnold’s Fourth Amendment claim, People v.
Arnold, 812 N.E.2d 696 (Ill. App. 2004) (reproduced at Doc. 30-1), and also the last to have
described the facts and procedural history of the case, ibid.; People v. Arnold, 2013 IL App (1st)
112039-U, 2013 WL 4106449 (Ill. App. Aug. 13, 2013) (reproduced at Doc. 30-7). The
following sets forth the facts as the state courts described them and as the transcripts reflect, as
well as the procedural background of the state criminal and post-conviction proceedings.
A.

Factual Background

On the evening of April 2, 2001, Karen Goodwin was found shot to death in a car in a
parking lot at 1350 West 14th Street in Chicago. 812 N.E.2d at 698. Her murder remained
unsolved months later when, on July 26, Detective James Sanchez arrested Tony Robinson in
connection with an unrelated murder, and Robinson told Sanchez that he knew who killed
Goodwin. Id. at 699; Doc. 30-17 at 81-84. Robinson was interviewed that day by Sanchez, and
then several more times over the following days by other detectives, including Gregory Swiderek
and William Sorengen. 812 N.E.2d at 698-700; Doc. 30-17 at 48, 81-82.
Initially, Robinson identified three men as Goodwin’s attackers: Gregory Brown (also
known as “Ya-Ya”), Antoine Truitt (also known as “Twan”), and a person he knew only as
“Boo” (later identified as Maurice Brown, Gregory’s brother). 812 N.E.2d at 698-99; Doc. 3017 at 48, 57, 83-84; Doc. 30-18 at 63-64. (The court will refer to Gregory Brown as “Brown”
and Maurice Brown as “Boo.”) Robinson described the night Goodwin died as follows.

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Robinson was standing with Brown in the lobby of 1410 West 14th Street when they saw a blue
Chevy drive by. 812 N.E.2d at 698. They recognized the car as belonging to Maurice Lebon
(also known as “Reese”), who owed Brown money. Id. at 698-99; Doc. 30-17 at 37-38; Doc. 3018 at 62. Brown suggested to Robinson that they “get” Lebon—that is, shoot him—but
Robinson declined. 812 N.E.2d at 698-99. Robinson and Brown went upstairs, where they
encountered Boo and Truitt. Id. at 699. Brown asked Boo and Truitt if they wanted to “whack”
Lebon. Ibid. Brown, Boo, and Truitt then parted ways with Robinson, who went to another part
of the building to use cocaine. Ibid.; Doc. 30-17 at 39. About ten minutes later, Robinson saw
Brown, Boo, and Truitt back in the lobby. 812 N.E.2d at 699. All three wore dark clothing and
carried guns. Ibid. Brown’s gun was a chrome .25-caliber semiautomatic pistol. Ibid.
Robinson went back upstairs. Ibid. Looking out through a window, he saw the three
men head toward a parking lot just to the east, near some row houses. Ibid. The blue Chevy was
in the parking lot. Ibid. Robinson watched Brown approach the parking lot from the south and
Boo and Truitt approach it from the north. Ibid. Then Robinson heard gunshots. Ibid. Shortly
thereafter, Brown came back and told Robinson, “I just whacked that n-----.” Ibid. Brown added
that he had put his gun in a garbage can by an incinerator. Ibid. Robinson later learned that it
was Goodwin, not Lebon, who was killed inside the Chevy. Ibid.
Robinson’s account was consistent with several details that the police’s own investigation
had turned up: Robinson correctly described the car and the parking lot in which Goodwin’s
body was found; forensic analysis corroborated his assertion that there were three assailants,
each with a gun, one of which was a .25; eyewitnesses who saw the attackers flee agreed that
they wore dark clothing; and the .25 used in the shooting was, in fact, discovered in a nearby
trash can. Doc. 30-17 at 43-46. But the detectives were skeptical that Robinson was telling the

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whole truth, in part because Truitt was dead (having been shot to death weeks after Goodwin’s
murder) by the time Robinson spoke to Sanchez, and in part because Sanchez waffled over the
shooters’ identities after expressing fear that his family would be harmed if he identified them.
812 N.E.2d at 699 & n.2; Doc. 30-17 at 49-50, 52-54, 82.
Robinson adhered to versions of this account through several additional interviews
between July 26 and 29, but he continued to tell detectives that he feared gang retaliation and
was not being “entirely truthful.” 812 N.E.2d at 699-700. Then, in a July 30 interview with
Swiderek and Sorengen, Robinson changed a crucial detail: he said that Arnold, not Truitt, was
the third shooter. Id. at 699; Doc. 30-17 at 41. Robinson was initially reluctant to name Arnold,
he explained, “because he knew [Arnold] was a ‘general’ in the New Breed Street gang.” 812
N.E.2d at 699; see also Doc. 30-17 at 41. Robinson maintained that the rest of his account was
truthful. 812 N.E.2d at 699; Doc. 30-17 at 42.
This new version was more convincing to the detectives. After Robinson implicated
Arnold, police showed Robinson a photographic lineup, from which he identified Brown, Boo,
and Arnold as the shooters. 812 N.E.2d at 699. Based on this identification and without first
obtaining a warrant, the police arrested Arnold at 3:30 p.m. that afternoon. Ibid.
Arnold was taken to the police station and held there for several hours. Doc. 30-17 at 33.
Sanchez was the first officer to interview him, at approximately 8:00 p.m. that evening. Id. at
106. The interview was not transcribed, and only Sanchez and Arnold were present, though it is
undisputed that Sanchez read Arnold his Miranda rights. Id. at 106-07, 110; Doc. 30-18 at 6667. According to Sanchez, that first interview lasted about twenty minutes, during which time
Arnold orally confessed to participating in the Goodwin shooting along with Brown and a third
individual, Cornelius Robinson (also known as “Pig”). Doc. 30-17 at 107; Doc 30-18 at 52. (To

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avoid confusion with Tony Robinson, the court will refer to Cornelius Robinson as “Pig.”) Later
that evening, around 10:00 p.m., assistant state’s attorney Mari Rose McManus joined the
interview, and Arnold repeated his oral confession to her and Sanchez. Doc. 30-17 at 108-09;
Doc. 30-18 at 141. The next afternoon, July 31, two other detectives, George Vasilopoulos and
John Pelligrini, re-read Arnold his Miranda rights, and again Arnold orally confessed. Doc. 3017 at 115-16. Finally, at 11:30 p.m. on July 31, McManus and Pelligrini re-Mirandized and reinterviewed Arnold, who again confessed; this time, McManus and Pelligrini recorded Arnold’s
confession in a handwritten statement, which he signed. Id. at 122-25.
Arnold’s written confession was similar to Robinson’s account. In it, Arnold described
meeting Brown, who was looking for Lebon because Lebon owed him money. Doc. 30-18 at
155. Arnold described Lebon’s blue Chevy passing, and said Brown stated that he was “going to
kill this n-----.” Id. at 156. Arnold said there were three shooters—himself, Brown, and Pig—
each with his own gun. Id. at 155-57. Arnold said that he approached the parked car from one
direction with Pig, with both firing shots at the car, while Brown approached from another
direction, firing directly into the passenger seat. Id. at 157-58. Arnold, Brown, and Pig then
went to a nearby playground, where Brown stashed his gun—“a smaller caliber gun, a 22 or a
25”—in a garbage can. Id. at 158. Arnold and Brown then returned to 1410 West 14th Street.
Id. at 159. The written statement acknowledges that Arnold heard and waived his Miranda
rights, was treated well in custody, and gave the statement voluntarily. Id. at 154, 159-60.
B.

Pretrial Proceedings

Before trial, Arnold moved to suppress his confessions as the product of an unlawful
arrest without probable cause. Doc. 30-14 at 56-57. At the hearing, the prosecution relied on
Robinson’s statement implicating Arnold in the Goodwin shooting as one basis for probable

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cause, and also relied on the statement of another arrestee, Marcus Hunter, who said he saw
Arnold shoot Truitt (whom Robinson had initially identified as one of the three attackers) three
weeks after Goodwin’s murder. Doc. 30-17 at 94-97. The prosecution introduced Robinson’s
statements through Detective Swiderek, who described his interviews with Robinson on July 27
(when Robinson implicated Truitt in Goodwin’s murder) and on July 30 (when he implicated
Arnold). Id. at 36-43. The prosecution argued that details of Robinson’s statements were
corroborated by the detectives’ own investigation, giving rise to probable cause. Id. at 93-96.
Arnold’s counsel, Gina Piemonte, attacked Robinson’s credibility, noting that he was in
custody on suspicion of a different murder; that he changed his story about Goodwin’s murder
several times, most notably on the crucial detail of whether Truitt or Arnold was involved; and
that he might himself have been involved in that murder. Id. at 97-99. Piemonte also argued that
Hunter, too, was not a credible enough informant for his accusation to supply probable cause. Id.
at 99-101. The judge denied the motion to suppress, finding “ample, overwhelming” probable
cause to believe that Arnold was involved in Goodwin’s murder. Id. at 101-02. The judge also
concluded that police independently “may have had probable cause” to believe Arnold shot
Truitt, even though they did not arrest Arnold right away after interviewing Hunter. Id. at 102.
In the alternative, Arnold moved to suppress his confessions on the ground that they had
been coerced with threats of violence. Doc. 30-14 at 58-60. The detectives denied his
allegations. Doc. 30-17 at 107-08, 117, 124. Because the interviews were not recorded, it was
Arnold’s word against the detectives’, and the judge, finding that Arnold’s testimony was not
credible and that the confessions were voluntary, denied the motion. Id. at 135.
Just before trial, Arnold moved in limine to bar any evidence of his prior bad acts or
alleged gang affiliations. Doc. 30-14 at 68-69. The motion argued that mentioning Robinson’s

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assertion that Arnold was a high-ranking gang member “would be highly prejudicial” and that
Arnold’s alleged gang membership had “no probative value to the case.” Id. at 68. The judge
granted the motion. Doc. 30-18 at 5.
C.

Trial and Sentencing

Arnold opted for a bench trial. Id. at 4. The judge who presided, Colleen McSweeneyMoore, was the same judge who conducted the suppression hearings and ruled on the motion in
limine. Doc. 30-17 at 29; Doc. 30-18 at 2.
In its opening statement, the prosecution asserted that it would rely principally on
Arnold’s confessions, backed up by “sufficient corroboration” from other evidence. Doc. 30-18
at 8-9. In his testimony, Sanchez described Arnold’s initial confession on July 30, for which
only he and Arnold were present. Id. at 49-53. Sanchez added that Arnold’s oral statement
(consistent with the later, written confession) identified Arnold, Brown, and Pig as the three
shooters and their respective guns—a .380 for Arnold, a .32 for Pig, and a .25 for Brown—and
described Brown as the person who shot Goodwin. Id. at 52-53. Sanchez testified that Arnold
gave a more detailed version of the same statement to McManus later that evening. Id. at 54.
On cross-examination, Piemonte raised Sanchez’s prior conversation with Robinson on
July 26. Id. at 56. The prosecution objected, arguing that Arnold’s pretrial motion in limine
precluded the parties from introducing “any information regarding Tony Robinson.” Ibid.
Piemonte responded that her motion sought to exclude only evidence of Arnold’s gang
affiliation, and that cross-examining Sanchez about the prior interview with Robinson was
necessary to establish Sanchez’s “state of mind of the knowledge he possessed prior to going in
and interviewing my client on the 30th.” Id. at 57. Piemonte explained that she wished to
establish what Sanchez had previously heard from Robinson regarding the Goodwin murder, in

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order to “show the details that this officer knew”; she was not, she explained, offering
Robinson’s statements for their truth. Ibid. The judge accepted that argument, but with a caveat:
questioning Sanchez about Robinson would make it “relevant why Robinson changed his mind,”
meaning the questioning would open the door for the prosecution to ask about Robinson’s ganginvolvement accusations on re-direct. Id. at 59-60. Piemonte responded, “I would like to go into
this area, because I believe that I need to.” Id. at 59. The judge then overruled the objection,
while noting that Piemonte was “violating [her] own motion in limine” and would “proceed at
[her] own peril.” Id. at 60.
Piemonte then cross-examined Sanchez regarding the Robinson interview, establishing
that Robinson’s July 26 statement included the following details: (1) Lebon owed Brown money;
(2) three people were involved in Goodwin’s shooting; (3) it was Brown who actually shot
Goodwin; (4) Brown brought a .25 caliber handgun to the shooting and discarded it in a trash can
afterward; and (5) the three shooters returned to 1410 West 14th Street after the attack. Id. at 6263. Piemonte also established that Sanchez was previously aware that both .25 and .380 caliber
bullet casings were found at the crime scene. Id. at 69. Finally, as to Sanchez’s initial interview
with Arnold on July 30, Piemonte established that Sanchez was the only person present for that
interview, id. at 66, that no other witnesses could corroborate what transpired during that
interview, id. at 66-67, and that Sanchez nowhere documented the questions he asked Arnold
during the interview, id. at 68.
On re-direct examination, the prosecution did not ask Sanchez about Arnold’s purported
gang affiliation. Id. at 68-69. It simply clarified that Robinson’s account differed from
Arnold’s, in that Arnold supposedly claimed that Pig was a shooter while Robinson named Boo,
and that Robinson did not tell Sanchez the caliber of Arnold’s or Boo’s guns. Ibid.

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Later, Vasilopoulos testified about his and Pelligrini’s interview with Arnold on July 31,
id. at 129-34, and McManus testified about Arnold’s statements to her later that night, when she
recorded his confession in writing, id. at 148-63. Other prosecution witnesses included a
bystander, who was nearby when the shooting occurred, and forensic analysts, who testified
about the bullets and other evidence found at the crime scene. Id. at 14-23, 70-124. Arnold
opted not to testify or put on any evidence. Id. at 184-85.
In its closing argument, the prosecution relied primarily on Arnold’s written statement,
id. at 185-88, arguing that it was “backed up by the firearms evidence.” Id. at 187. In response,
Piemonte pressed two distinct arguments, both geared toward casting doubt on the validity of
Arnold’s confessions—which she stressed were “the only evidence” linking him to the crime.
Id. at 188-89. First, Piemonte pushed back against the assertion that Arnold’s confessions were
“corroborated by the physical evidence and therefore are reliable,” id. at 189, offering various
discrepancies between Arnold’s written statement and other evidence as further reason to doubt
the confessions’ validity, id. at 193-96. Second, she argued that the circumstances under which
the detectives obtained the confessions were “suspicious” and “questionable,” which—combined
with the fact that “there’s nothing in this statement that the police didn’t already know”—created
reasonable doubt about the confessions’ authenticity. Id. at 190-91, 196. Specifically, Piemonte
argued that Robinson’s statements gave Sanchez full knowledge of how the shooting went down
before he interviewed Arnold on July 30. Id. at 189-90. Piemonte then argued that the
subsequent interviews were suspect, specifically emphasizing Sanchez’s continued involvement.
Id. at 191-92 (“We have a state’s attorney called in, and she goes in and interviews Mr. Arnold
no less than three occasions at all times with, guess who? Detective Sanchez ….”).

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The judge found Arnold guilty, concluding that his confessions were sufficient to convict
because they were “overwhelmingly substantiated by the physical evidence.” Id. at 206. The
judge sentenced Arnold to forty-five years in prison—twenty-five years for the murder, plus a
twenty-year enhancement for personally discharging a firearm. Id. at 215.
D.

Post-Trial Proceedings

On direct appeal, Arnold contended that the judge erred in finding that his arrest was
supported by probable cause and that his twenty-year enhancement violated the Illinois and
United States constitutions. 812 N.E.2d at 700-01, 704. The Appellate Court of Illinois rejected
his claims. Id. at 701, 704. Both the Supreme Court of Illinois and United States Supreme Court
denied review. Arnold v. Illinois, 547 U.S. 1075 (2006); People v. Arnold, 844 N.E.2d 40 (Ill.
2005).
The procedural history of Arnold’s state post-conviction litigation is complex, but the
minutiae do not matter for present purposes. Arnold asserted various claims in multiple filings
spanning several years, some of which he submitted pro se despite being represented by a public
defender. 2013 WL 4106449, at *1-3 (Doc. 30-7 at 1-2). Specifically, Arnold claimed that: (1)
prejudicial hearsay testimony concerning Robinson’s statements should not have been admitted
at the suppression hearing, and Piemonte was ineffective for failing to object, Doc. 30-12 at 2527; (2) Piemonte was ineffective for eliciting hearsay testimony about Robinson’s statements at
trial, id. at 27; (3) the evidence obtained after his arrest should have been suppressed because
more than forty-eight hours passed between his arrest and initial court appearance, and Piemonte
was ineffective for failing to move to suppress on that ground, Doc. 30-13 at 58-59; and (4)
Arnold’s appellate counsel was ineffective for failing to raise Piemonte’s ineffectiveness, Doc.
30-12 at 27; Doc. 30-13 at 58. Arnold also mounted various challenges to the twenty-year

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sentencing enhancement and to the indictment, along with associated ineffectiveness claims.
Doc. 30-12 at 28-30; Doc. 30-13 at 58-60; Doc. 30-21 at 9-12. None of those claims persuaded
the trial court, which rejected them all, or even Arnold’s post-conviction public defender, who
took several years to review the case and eventually offered no response to the State’s motion to
dismiss. 2013 WL 4106449, at *2-4 (Doc. 30-7 at 1-3); Doc. 30-16 at 119-20. On appeal, the
state appellate court determined that Arnold’s post-conviction counsel had provided reasonable
assistance and affirmed the trial court’s dismissal of his claims, without reaching their merits.
2013 WL 4106449, at *7 (Doc. 30-7 at 5). The state supreme court denied review. People v.
Arnold, 3 N.E.3d 796 (Ill. 2014).
Arnold then timely filed his federal habeas petition, Doc. 1, which he (now represented
by counsel) amended with leave of this court, Docs. 7, 10, 14.
Discussion
As things currently stand, Arnold presses the following claims: (1) his counsel was
ineffective, in violation of the Sixth Amendment, in the following respects: (a) his trial counsel
was ineffective for failing to object to Robinson’s statements at the suppression hearing, Doc. 14
at 9; (b) his trial counsel was ineffective for eliciting Robinson’s statements at trial, ibid.; (c) his
trial counsel was ineffective for failing to move to suppress his statements on the ground that he
was incarcerated for more than forty-eight hours without a probable cause hearing, id. at 8; (d)
his appellate counsel was ineffective for failing to litigate the foregoing issues and/or trial
counsel’s ineffectiveness for failing to raise those issues, id. at 8-9; and (e) his post-conviction
counsel was ineffective for failing to advocate any of Arnold’s claims, id. at 10; and (2) Arnold’s
post-arrest statements should have been suppressed because he was arrested without probable
cause in violation of the Fourth Amendment, id. at 7. Arnold’s amended petition also claims that

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his counsel was ineffective for failing to mount certain challenges to his indictment, id. at 8, but
he “voluntarily dismissed” those claims in his reply brief, Doc. 37 at 23 n.7, so the court will not
consider them.
The parties dispute whether Arnold procedurally defaulted his claims, Doc. 29 at 17-21;
Doc. 37 at 4-10; Doc. 45 at 5-7; Doc. 51 at 8-10, and, if so, whether the court should excuse his
default, Doc. 37 at 10-22; Doc. 45 at 7-11; Doc. 51 at 10-13. The parties have made extensive
and nuanced arguments on these points. But the court need not, and therefore will not, resolve
those complex procedural issues because, as the following discussion shows, Arnold’s claims are
resolved more readily on their merits. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State.”); Carrion v. Butler, 835 F.3d 764, 772
(7th Cir. 2016) (“We need not address these potentially difficult procedural questions … because
even if we were to decide each of them in [the petitioner]’s favor, his claims clearly fail on the
merits.”); Ashburn v. Korte, 761 F.3d 741, 750 (7th Cir. 2014) (holding that there was no need
resolve a “close question” of procedural default where the petitioner’s underlying ineffective
assistance claim was meritless).
I.

Ineffective Assistance Claims
The state trial court’s 2011 dismissal of Arnold’s post-conviction petition was the state

courts’ final word on the merits of Arnold’s ineffective assistance claims. Doc. 30-16 at 115-20;
see also Doc. 29 at 22 (treating that ruling as the decision under review); Doc. 37 at 26-28
(same); Doc. 45 at 4-5 (same); Doc. 51 at 6 (same). The court therefore will review that decision
under the standard codified in 28 U.S.C. § 2254(d). See Stern v. Meisner, 812 F.3d 606, 609 (7th
Cir. 2016). “Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is

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shown that the earlier state court’s decision ‘was contrary to’ federal law then clearly established
in the holdings of th[e] [Supreme] Court, § 2254(d)(1); or that it ‘involved an unreasonable
application of’ such law, § 2254(d)(1); … or that it ‘was based on an unreasonable determination
of the facts’ in light of the record before the state court, § 2254(d)(2).” Harrington v. Richter,
562 U.S. 86, 100 (2011) (citation omitted); see also Woods v. Etherton, 136 S. Ct. 1149, 1151
(2016); Gilbert v. McCulloch, 776 F.3d 487, 492 (7th Cir. 2015).
Arnold argues that the state court unreasonably applied the ineffectiveness standard set
forth in Strickland v. Washington, 466 U.S. 668 (1984). Doc. 37 at 22-23 & n.6. “[A] state court
decision involves an ‘unreasonable application of’ federal law if the state court ‘correctly
identifies the governing legal principle … but unreasonably applies it to the facts of the
particular case.’” Kamlager v. Pollard, 715 F.3d 1010, 1015-16 (7th Cir. 2013) (second
alteration in original). To obtain relief under § 2254(d)(1), “a state prisoner must show that the
state court’s ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” White v. Wheeler, 136 S. Ct. 456, 460 (2015). The “lack of a
Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly
established federal law, since a general standard from [the Supreme Court’s] cases can supply
such law,” Gilbert, 776 F.3d at 491 (alteration in original) (quoting Marshall v. Rodgers, 133 S.
Ct. 1446, 1449 (2013)) (internal quotation marks omitted), but “a federal habeas court may
overturn a state court’s application of federal law only if it is so erroneous that there is no
possibility fairminded jurists could disagree that the state court’s decision conflicts with th[e]
[Supreme] Court’s precedents.” Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013) (internal
quotation marks omitted).

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The Sixth Amendment guarantees criminal defendants the right to the effective assistance
of counsel. See Vinyard v. United States, 804 F.3d 1218, 1224 (7th Cir. 2015). A defendant can
establish that his attorney was ineffective only by showing both that (1) the attorney’s
performance was deficient and (2) he suffered prejudice as a result. See Carter v. Douma, 796
F.3d 726, 735 (7th Cir. 2015).
For the first element, Arnold must show that his counsel’s performance “‘fell below an
objective standard of reasonableness.’” Blackmon v. Williams, 823 F.3d 1088, 1102-03 (7th Cir.
2016) (quoting Strickland, 466 U.S. at 688). “The question is whether an attorney’s
representation amounted to incompetence under prevailing professional norms, not whether it
deviated from best practices or most common custom.” Makiel v. Butler, 782 F.3d 882, 897 (7th
Cir. 2015) (quoting Harrington, 562 U.S. at 105) (internal quotation marks omitted). “A court’s
scrutiny of an attorney’s performance is ‘highly deferential’ to eliminate as much as possible the
distorting effects of hindsight, and we ‘must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance.’” Vinyard, 804 F.3d at 1225
(quoting Strickland, 466 U.S. at 689); see also Woods, 136 S. Ct. at 1151 (“[C]ounsel is strongly
presumed to have rendered adequate assistance and made all significant decisions in the exercise
of reasonable professional judgment.”) (internal quotation marks omitted). In dismissing
Arnold’s post-conviction petition, the state trial court ruled that his counsel’s alleged errors were,
in fact, “trial strategies,” and that accordingly “[t]here is nothing here in this prong that … the
attorney acted ineffective.” Doc. 30-16 at 119. This court “must give AEDPA deference to that
conclusion, upholding it so long as it is not objectively unreasonable.” Blackmon, 823 F.3d at
1103. “When the claim at issue is one for ineffective assistance of counsel … AEDPA review is
doubly deferential.” Woods, 136 S. Ct. at 1151 (internal quotation marks omitted).

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For the second element, prejudice, Arnold must show “a reasonable probability that, but
for counsel’s [allegedly] unprofessional errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694; see also Hinesley v. Knight, 837 F.3d 721, 732 (7th Cir.
2016) (for Strickland prejudice, “[a] reasonable probability is a probability sufficient to
undermine confidence in the outcome”). It is hard to glean from the state court’s ruling a
holding on the prejudice element. Doc. 30-16 at 119 (“There is nothing here in this prong that
one, first of all, that attorney acted ineffective; and two, that that ineffectiveness would
prevail.”). This court therefore reviews de novo the prejudice element of Arnold’s Strickland
claim. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“In this case, our review is not
circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts
below reached this prong of the Strickland analysis.”); Harris v. Thompson, 698 F.3d 609, 625
(7th Cir. 2012) (noting that when state courts have adjudicated only one Strickland prong,
“federal courts apply AEDPA deference to the prong the state courts reached but review the
unaddressed prong de novo,” and collecting cases).
A.

Trial Counsel’s Handling of Robinson’s Statements at the
Suppression Hearing

Arnold contends that Piemonte, at the suppression hearing, “failed to object to the
hearsay statements Officer Swiderek made regarding Robinson” and “allowed Petitioner to be
prejudicially portrayed as a gang member.” Doc. 37 at 29. Despite Arnold’s describing the
statements as hearsay, the parties agree that he could not have properly objected to their
admission at the suppression hearing on hearsay grounds. Doc. 29 at 23; Doc. 51 at 4. That is
because Illinois law holds that “hearsay evidence is admissible during a hearing on a motion to
suppress.” People v. Patterson, 735 N.E.2d 616, 628 (Ill. 2000); see also People v. LaBostrie,
153 N.E.2d 570, 573 (Ill. 1958) (“It is also established that reasonable cause may be founded
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upon evidence that would not be admissible at the trial. Specifically it has been held that
reasonable cause may be founded upon hearsay evidence.”) (citations omitted). Instead, Arnold
asserts that Robinson’s statements about Arnold’s supposed gang membership should have been
suppressed because they were “propensity” evidence that was “prejudicial and inflammatory.”
Doc. 37 at 29. This amounts to a claim that Piemonte should have objected under the evidentiary
principles that have since been codified as Illinois Rule of Evidence 404 (“Evidence of a
person’s character or a trait of character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion.”) and Illinois Rule of Evidence 403 (“Although
relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of,” among other things, “unfair prejudice” or “confusion of the issues.”).
There are multiple flaws with Arnold’s argument. First, just as hearsay was admissible at
the suppression hearing, it is doubtful that those evidentiary principles could have been invoked
at that hearing. In fact, Illinois Rules of Evidence 403 and 404 likely would not have applied in
a suppression hearing. See In re Kendale H., 3 N.E.3d 419, 427 (Ill. App. 2013) (“‘In making its
determination [about the admissibility of evidence], the court is not bound by the rules of
evidence except those with respect to privileges.’”) (alteration in original) (quoting Ill. R. Evid.
104(a) (eff. Jan. 1, 2011)). In Patterson, which established the admissibility of hearsay at
suppression hearings, the Supreme Court of Illinois cited Federal Rule of Evidence 104(a),
which also precludes objections at suppression hearings on the basis of any rule of evidence not
pertaining to privileges—which includes Rules 403 and 404. 735 N.E.2d at 628 (“[F]ederal law
supports defendant’s argument. Federal Rule of Evidence 104(a) provides, in relevant part,
‘Preliminary questions concerning … the admissibility of evidence shall be determined by the
court …. In making its determination it is not bound by the rules of evidence except those with

16

respect to privileges.’”) (alterations and emphasis in original); see United States v. Ozuna, 561
F.3d 728, 736 (7th Cir. 2009) (holding that the rules governing admissibility of expert testimony
do not apply in suppression hearings because, under Federal Rule of Evidence 104(a), “the Rules
of Evidence do not apply at pre-trial admissibility hearings”); United States v. Bunnell, 280 F.3d
46, 49 (1st Cir. 2002) (rejecting a Rule 403 challenge to evidence introduced at a suppression
hearing because “[t]he Federal Rules of Evidence, apart from testimonial privileges, do not apply
at suppression hearings”). Even though Patterson post-dates Arnold’s suppression hearing, there
is no reason to think that Illinois law was different at the time.
Second, even if the trial court might have entertained a Rule 403- or Rule 404-style
objection, any such objection would have been futile. Proving Arnold’s general penchant for
criminality would have accomplished little at the suppression hearing, see People v. Atwood, 549
N.E.2d 1362, 1365 (Ill. App. 1990) (“[T]he question of whether defendant was a convicted felon
had little bearing upon the question of whether probable cause existed for the issuance of the
search warrant.”), so there is little reason to think Robinson’s statements were offered for that
purpose. Rather, those statements had an important and permissible function: showing the
information that the police had to link Arnold to the Goodwin murder before they arrested him,
which bore directly on whether they had probable cause to suspect his involvement. That was
the central question of the suppression hearing, and at the time of Arnold’s arrest, Robinson’s
identification of Arnold as one of the shooters was the major piece of evidence linking him to
Goodwin’s murder. The statements’ probative value therefore dwarfed whatever unfairly
prejudicial effect they might have had. See Bohannon v. Pegelow, 652 F.2d 729, 734 (7th Cir.
1981) (admitting evidence that a litigant was previously the subject of a criminal investigation
where it “was extremely probative (if not crucial)”); People v. Howard, 708 N.E.2d 1212, 1216

17

(Ill. App. 1999) (admitting potentially prejudicial past crimes evidence because it was probative
of “the central issue”). Similarly, Robinson’s assertion that Arnold belonged to a gang was
essential to evaluating Robinson’s credibility, because the purported gang affiliation was the
only explanation Robinson gave to the police for the discrepancy between the account that
implicated Arnold and the earlier accounts that implicated Truitt. See United States v.
Thompson, 359 F.3d 470, 478 (7th Cir. 2004) (holding under Federal Rule of Evidence 403 that
the district court properly admitted potentially prejudicial evidence that a key witness feared the
defendant, where the witness’s testimony had changed and the question whether to believe the
witness’s earlier account or the later one “was central to the jury’s determination”).
Arnold points to the trial court’s later decision to grant his motion in limine to exclude
statements about his supposed gang affiliation as proof that an objection to those statements at
the suppression hearing would have been sustained. Doc. 37 at 31. But that conclusion does not
follow. Although Robinson’s identification of Arnold and his statement about Arnold’s
purported gang affiliation were centrally relevant at the suppression hearing, they had far less (if
any) utility at Arnold’s trial; there, unlike at the suppression hearing, the ultimate issue was
Arnold’s guilt or innocence, the rules of evidence applied with full force, and the key dispute
was whether Arnold’s confessions were reliable, not whether Robinson’s earlier accusation was
sufficiently trustworthy to support probable cause for Arnold’s arrest. The judge’s conclusion
that Robinson’s gang-related statements would be more prejudicial than probative at trial reveals
next to nothing about how she would or should have resolved a similar objection at the
suppression hearing. Instead, as already discussed, it is extremely likely that the judge would
have overruled any such objection.

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The upshot of all of this is clear: Arnold cannot establish that Piemonte’s performance at
the suppression hearing was deficient, much less that the state court unreasonably applied
Strickland in concluding otherwise. A lawyer does not perform deficiently by failing to make an
objection that would have been futile. See Carter, 796 F.3d at 735 (holding that “failing to make
a futile objection” is not deficient performance); Lambert v. McBride, 365 F.3d 557, 563-64 (7th
Cir. 2004) (same, where the state court “would have overruled” the proposed objection); United
States v. Neeley, 189 F.3d 670, 684 (7th Cir. 1999) (same, where counsel did not object to
“evidence that was properly admitted”); United States v. Fish, 34 F.3d 488, 495 (7th Cir. 1994)
(“Where a motion for a continuance would prove futile, failure to seek one cannot constitute
ineffective assistance.”). For the same reason, Arnold has failed to show that he suffered any
prejudice from his counsel’s failure to object, see McNary v. Lemke, 708 F.3d 905, 921 (7th Cir.
2013) (“[I]f there was any error, there was no prejudice. Had counsel raised the issue, it still
would have failed.”)—even considering the issue de novo, as the court does here.
B.

Trial Counsel’s Handling of Robinson’s Statements at Trial

As for Piemonte’s performance at trial, Arnold challenges her decision to cross-examine
Sanchez about Robinson’s statements. Doc. 14 at 9; Doc. 37 at 28-29. That questioning, Arnold
asserts, “elicited inflammatory, inadmissible hearsay testimony” and “opened the door” to
prejudicial evidence of Arnold’s alleged gang membership. Doc. 37 at 28. In Arnold’s view,
Piemonte had no reason to bring up Robinson, and her choice to do so was at cross purposes with
her motion in limine to bar the prosecution from raising Arnold’s supposed gang affiliation,
meaning that the choice could not have been strategic. Id. at 25, 28-29.
“Strickland generally provides a presumption of strategic decision-making by counsel,”
Mitchell v. Enloe, 817 F.3d 532, 538-39 (7th Cir. 2016), and here the record confirms that

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Piemonte acted strategically. Indeed, Arnold attacks what was not merely a permissible strategic
choice by Piemonte, but—with the benefit of hindsight—what likely was a correct strategic
choice. Piemonte faced a daunting challenge at trial: to persuade the judge that Arnold’s
confessions were not conclusive evidence of his guilt, despite the judge’s earlier ruling that the
confessions were voluntary. Accordingly, her trial strategy had two main goals, both focused on
undermining the confessions’ evidentiary force. First, she sought to highlight discrepancies
between the details of Arnold’s confessions and the other evidence. Second, likely anticipating
the judge’s ultimate conclusion that the confessions were “overwhelmingly substantiated by the
physical evidence,” Doc. 30-18 at 206, she sought to cast doubt on whether the details that were
corroborated truly came from Arnold himself. Consistent with the latter goal, Piemonte’s crossexamination of Sanchez sought to reveal how details of the crime could have found their way
into Arnold’s statement without his actually having participated in the shooting.
Cross-examining Sanchez was the best (if not the only) way for Piemonte to explain the
corroborated details in Arnold’s statement. Sanchez was the first detective to interview Arnold,
he did so alone, and their conversation was unrecorded. By contrast, there were multiple
prosecution witnesses to each of Arnold’s subsequent interviews, and those witnesses said that
Arnold repeated to them the same version of events he relayed at the initial interview with
Sanchez—damning details included. Demonstrating that Sanchez had heard those crucial details
before he interviewed Arnold gave Piemonte a fighting chance to argue that it was Sanchez’s
questioning, not Arnold’s answers, that introduced corroborated details into Arnold’s account.
Id. at 202 (“[Prosecutor:] For you to believe that he didn’t make this statement, I suppose you
have to adopt some unsupported Defense theory that someone told him what to say ….”); see
also Brandon L. Garrett, “The Substance of False Confessions,” 62 Stan. L. Rev. 1051, 1053

20

(2010) (describing the phenomenon of “confession contamination,” in which police officers
“may, intentionally or not, prompt the suspect on how the crime happened so that the suspect can
then parrot back an accurate-sounding narrative”). The Sanchez interview, in other words,
represented the most vulnerable link in Arnold’s chain of incriminating statements—but only if
Piemonte was willing to risk bringing Robinson back into the picture.
The transcript confirms that Piemonte had this strategy in mind. When the prosecution
objected to her bringing up Robinson, she told the judge the goal of her questions would be “to
show the details that this officer knew” and “the knowledge he possessed prior to going in and
interviewing my client.” Doc. 30-18 at 57. After the judge allowed her to proceed, she elicited
from Sanchez several details that Robinson’s July 26 statement had in common with Arnold’s
later confessions. Id. at 62-63. When Vasilopoulos testified about his and Pelligrini’s July 31
interview with Arnold, in which Arnold again confessed and included the same key details in his
account, id. at 131-34, Piemonte established on cross-examination that the interview took place
“after he had already been interviewed by Detective Sanchez.” Id. at 137. Likewise, when
McManus (the assistant state’s attorney) testified about Arnold’s statements to her, id. at 143-63,
Piemonte asked whether Sanchez had spoken to Arnold alone before McManus arrived, id. at
163-64. And in her closing argument, Piemonte argued that Sanchez interviewed Arnold “armed
with” a litany of specific details about the crime, id. at 189-90, and that there was “nothing in
[Arnold’s] statement that the police didn’t already know before they questioned him,” id. at 196.
So Piemonte adhered to her stated strategy, and she used the Robinson line of questioning (which
Arnold now challenges as baseless and irrational) to establish an essential predicate for
disregarding his confessions. See Hinesley, 837 F.3d at 733-34 (holding that the state court

21

reasonably rejected an ineffectiveness claim where defense counsel acted in a manner
“[c]onsistent with his declared strategy” throughout trial).
Arnold also overstates the countervailing risks that Piemonte supposedly disregarded.
First, the testimony elicited by Piemonte was not hearsay; as she explained to the judge,
Robinson’s statements were offered only to show Sanchez’s “state of mind.” Doc. 30-18 at 5758. Second, there was little danger that the potential gang-affiliation testimony would prove
prejudicial. Because nothing that Robinson told Sanchez was offered for its truth, the judge
could not consider Robinson’s statements as evidence of Arnold’s guilt. And if Arnold’s fear
was that the judge would impermissibly hold Robinson’s statements against him, that ship sailed
when Arnold opted for a bench trial in front of the same judge who handled the suppression
hearing and ruled on the motion in limine. Because the judge was fully aware of what Robinson
said even before Piemonte cross-examined Sanchez, it was reasonable for Piemonte to take the
risk that the judge might hear the same thing again. See Hinesley, 837 F.3d at 734 (holding that
defense counsel’s decision not to object to out-of-court statements at a bench trial was strategic
and permissible, where the statements were already certain to be raised in some form and “how
the statements were elicited ultimately would not have mattered much, if at all, to the
factfinder”). As the Seventh Circuit has explained in the habeas context, “[i]n a bench trial, we
presume that evidence admitted for a limited purpose is considered in its proper perspective by
the trial judge.” Placek v. State of Ill., 546 F.2d 1298, 1305 (7th Cir. 1976); see also Williams v.
Illinois, 132 S. Ct. 2221, 2235 (2012) (“[I]n bench trials, judges routinely hear inadmissible
evidence that they are presumed to ignore when making decisions.”) (plurality opinion).
Finally, while it is true that the judge warned Piemonte that her proposed line of
questioning might open the door for the prosecution to ask about Arnold’s supposed gang

22

affiliation, Doc. 30-18 at 59, there was little reason for the prosecution to do so. Thanks in part
to Piemonte’s motion in limine, it was clear that gang affiliation could not be used as direct
evidence of Arnold’s guilt. If anything, testimony that the police believed Arnold to be a highranking gang member might have weakened the prosecution’s case, by establishing a motive for
detectives to pin on Arnold a shooting he did not commit. Id. at 197 (prosecution arguing in
closing that the judge should reject Arnold’s “theory that the police already knew this
information” because there was no “motive for the police to make up something or put a case on
the defendant”). Indeed, the prosecution did not ask Sanchez about Arnold’s gang affiliation on
re-direct, id. at 68-69, and the topic did not come up at any other point during the trial.
Whether to believe Arnold’s confessions was the paramount question at trial. Piemonte’s
decision to ask about Robinson was the cornerstone of a strategy geared toward answering it in
Arnold’s favor. Although Piemonte’s approach failed to convince the judge, the fact that her
strategic choices did not result in an acquittal does not make her performance constitutionally
ineffective. At the very least, the state court was not unreasonable in so holding. See McElvaney
v. Pollard, 735 F.3d 528, 532 (7th Cir. 2013) (“In evaluating an attorney’s performance, courts
must defer to any strategic decision the lawyer made that falls within the wide range of
reasonable professional assistance, even if that strategy was ultimately unsuccessful.”) (internal
quotation marks omitted); Shaw v. Wilson, 721 F.3d 908, 914 (7th Cir. 2013) (same). That is
true even if Arnold believes that a different approach would have been more prudent, because
“there is no constitutional right to be represented by an attorney who shares the defendant’s
belief as to the best trial strategy.” United States v. Taylor, 128 F.3d 1105, 1108 (7th Cir. 1997).
In any event, Arnold has even more clearly failed to show prejudice, because the risk to
which Piemonte supposedly exposed him never came to pass. As noted, the prosecution at trial

23

introduced no evidence of Arnold’s alleged gang affiliation, the alleged affiliation was never
mentioned during closing argument, and the judge articulated a rationale for her verdict that
made no reference to it. Doc. 30-18 at 185-206; see Hinesley, 837 F.3d at 735 (finding no
prejudice where statements to which the petitioner believed his attorney should have objected
during a bench trial “were not cited by the State in its closing argument, and were highly unlikely
to have influenced the judge’s assessment of guilt”). Arnold has thus failed to identify any way
in which he was actually harmed by Piemonte’s strategy.
C.

Trial Counsel’s Failure to Move to Suppress Arnold’s Confessions
Due to a Gerstein Violation

Arnold next challenges Piemonte’s failure to raise an additional possible ground for
suppressing his confessions: the amount of time he was detained between his arrest and his initial
probable cause determination. Doc. 14 at 8. Arnold argues that his confessions were made
during a period of more than forty-eight hours that he was held without a probable cause
determination, in violation of his Fourth Amendment rights under Gerstein v. Pugh, 420 U.S.
103 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44 (1991), and that Piemonte was
ineffective in failing to move to suppress his confessions on that ground. Doc. 37 at 31-32; Doc.
51 at 5. Although, as noted below, a petitioner generally may not press Fourth Amendment
claims on federal habeas review, a petitioner may present a Sixth Amendment argument that
counsel was ineffective for failing to raise a Fourth Amendment issue in state court. See
Johnson v. Thurner, 624 F.3d 786, 792-93 (7th Cir. 2010); Ebert v. Gaetz, 610 F.3d 404, 411-12
(7th Cir. 2010).
It may be that Arnold’s Gerstein and McLaughlin rights were violated. McLaughlin held
that a probable cause hearing held within forty-eight hours presumptively satisfies the Fourth
Amendment, unless “the arrested individual can prove that his or her probable cause
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determination was delayed unreasonably,” while for a hearing held more than forty-eight hours
after arrest, “the burden shifts to the government to demonstrate the existence of a bona fide
emergency or other extraordinary circumstance.” 500 U.S. at 56-57. Here, as the Warden notes,
it is unclear whether Arnold received a hearing within forty-eight hours. Doc. 29 at 25. A first
degree murder complaint was filed with the circuit court on August 2, the third day (and thus
over forty-eight hours) after Arnold’s arrest. Doc. 30-14 at 8-9. But that complaint carries what
appears to be a judge’s signature dated August 1, only two days after Arnold’s arrest. Ibid. It is
also unclear what justification, if any, the police might have offered for not bringing Arnold
before a judge sooner.
Whether a violation occurred is immaterial, however. Arnold does not allege merely that
his counsel was ineffective for failing to spot a violation, but that she was ineffective for failing
to invoke that violation as a ground for suppressing his confessions. This was not deficient
performance, because any such suppression motion would have been unlikely to succeed. See
Knowles v. Mirzayance, 556 U.S. 111, 127 (2009) (“Counsel also is not required to have a
tactical reason—above and beyond a reasonable appraisal of a claim’s dismal prospects for
success—for recommending that a weak claim be dropped altogether.”); Edmonson v.
Harrington, 2013 WL 2178320, at *7-8 (N.D. Ill. May 20, 2013) (denying habeas relief on the
ground that trial counsel’s performance was adequate, despite his failure to seek suppression
under Gerstein, because neither Supreme Court nor Illinois precedent entitled a defendant to
suppression as a remedy for a Gerstein violation).
The motion Arnold proposes would not have succeeded because, even if Arnold had a
viable claim that his Gerstein rights were violated, that violation would not have entitled him to
suppress his confessions. Gerstein and McLaughlin were class action lawsuits challenging local

25

governments’ methods for verifying probable cause after warrantless arrests. See McLaughlin,
500 U.S. at 47; Gerstein, 420 U.S. at 106-07. They establish the right to a prompt judicial
determination of probable cause as a prerequisite to prolonged detention. See McLaughlin, 500
U.S. at 55 (“A State has no legitimate interest in detaining for extended periods individuals who
have been arrested without probable cause.”); Gerstein, 420 U.S. at 126 (“[T]he Fourth
Amendment requires a timely judicial determination of probable cause as a prerequisite to
detention ….”). But neither decision establishes a right to suppress statements obtained during
any such detention at a criminal trial. See Edmonson, 2013 WL 2178320, at *8 (“[T]he United
States Supreme Court has never held that a defendant is entitled to the suppression of statements
made after an alleged [McLaughlin]/Gerstein violation.”). And in Illinois, the law is now settled
that a defendant whose confession has already been deemed voluntary, like Arnold, cannot
suppress a confession on the sole ground that it was elicited while a Gerstein violation was
underway. See People v. Willis, 831 N.E.2d 531, 540, 542 (Ill. 2005) (holding that there was no
reason to “exclud[e] a putatively voluntary confession in order to deter police from violating
Gerstein and McLaughlin,” and therefore that Illinois courts “faced with a Gerstein/McLaughlin
violation [should] ask simply whether the confession was voluntary …. If so, it is admissible. If
not, it is inadmissible.”) (citation omitted). Here, the trial court determined that Arnold’s
confessions were voluntary. Doc. 30-17 at 135.
Willis was decided two years after Arnold’s trial, but it made clear that it simply clarified
existing law. 831 N.E.2d at 541 (“The great weight of Illinois authority rests with the State, and
we refuse to depart from it.”); see People v. Dees, 422 N.E.2d 616, 618 (Ill. 1981) (“Delay
alone … has not heretofore been considered sufficient cause to penalize the prosecution to the
extent of excluding confessions obtained during the period between arrest and appearance before

26

a judge ….”). It follows that any motion to suppress based on Gerstein and McLaughlin that
Piemonte might have filed would not have succeeded, meaning that her failure to raise a Gerstein
issue was not deficient performance, see Knowles, 556 U.S. at 127; Carter, 796 F.3d at 735;
Lambert, 365 F.3d at 563-64; Neeley, 189 F.3d at 684; Fish, 34 F.3d at 495, and, in any event,
could not have prejudiced Arnold, see McNary, 708 F.3d at 921.
D.

Appellate Counsel’s Failure to Argue Trial Counsel’s Ineffectiveness

Arnold also argues that his appellate counsel was ineffective for failing to raise
Piemonte’s ineffectiveness and/or for compounding her errors by failing to raise the same
substantive issues on appeal. Doc. 14 at 8-9; Doc. 37 at 34. But where, as here, trial counsel
was not ineffective, it is not ineffective for appellate counsel to decline to argue that trial counsel
was ineffective; nor is it ineffective for appellate counsel not to press the same claims that trial
counsel did not press. See Carrion, 835 F.3d at 778 (“[B]ecause we have concluded that Mr.
Carrion’s involuntary confession claim is without merit, we also reject his related claim of
ineffective assistance [for failure to raise it on appeal].”); Martin v. Evans, 384 F.3d 848, 852
(7th Cir. 2004) (“The record establishes that counsel vigorously represented Martin’s interests
and set forth the best possible argument in light of the clear state of the law. His appellate
counsel’s decision to refrain from attacking trial counsel’s representation on this basis was not
objectively unreasonable. Moreover, because the underlying trial counsel claim is meritless,
there is not reasonable probability that the outcome of the appeal would have been different had
counsel raised the issue.”) (citation omitted); Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996)
(“Failure to raise a losing argument, whether at trial or on appeal, does not constitute ineffective
assistance of counsel.”).

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E.

Post-Conviction Counsel’s Performance

Arnold also claims that his post-conviction counsel was ineffective. Doc. 14 at 10. But
as Arnold now acknowledges, Doc. 37 at 3 n.2, the ineffectiveness of post-conviction counsel is
not a permissible ground for relief. See 28 U.S.C. § 2254(i) (“The ineffectiveness or
incompetence of counsel during … State collateral post-conviction proceedings shall not be a
ground for relief in a proceeding arising under section 2254.”); London v. Clements, 600 F.
App’x 462, 466 (7th Cir. 2015) (“[Section] 2254 bars relief on the basis of poor performance by
counsel in ‘postconviction proceedings.’”); Johnson v. McBride, 381 F.3d 587, 590 (7th Cir.
2004) (“Once trial and direct appeals have run their course … neither the sixth amendment nor
federal law guarantees effective assistance of counsel for collateral proceedings, not even in a
capital case.”).
II.

Fourth Amendment Claim
Arnold’s remaining claim—that the trial court erred in failing to suppress his statements

as the product of an unlawful arrest without probable cause in violation of the Fourth
Amendment, Doc. 14 at 7—requires only brief discussion. Arnold concedes that this claim is
“likely barred” by Stone v. Powell, 428 U.S. 465 (1976). Doc. 37 at 2 n.1. He is correct.
Because Arnold does not argue that the Illinois courts did not give him “an opportunity for full
and fair litigation” of his Fourth Amendment claim, Stone holds that he “may not be granted
federal habeas corpus relief” on that basis. Stone, 428 U.S. at 494; see also Sutton v. Pfister, 834
F.3d 816, 820 (7th Cir. 2016) (“[A] federal court generally cannot grant habeas corpus relief
based on a state court’s failure to suppress evidence collected in violation of the Fourth
Amendment.”) (citing Stone). Arnold argues that “Stone itself is unconstitutional” and that “the
United States Supreme Court should overrule Stone.” Doc. 37 at 2 n.1. But until and unless the

28

Supreme Court overrules Stone, this court must faithfully apply it. See Bosse v. Oklahoma, 137
S. Ct. 1, 2 (2016) (per curiam) (“[I]t is this Court’s prerogative alone to overrule one of its
precedents.”) (alteration in original).
Conclusion
Arnold’s federal habeas petition is denied. Habeas Rule 11(a) provides that the district
court “must issue or deny a certificate of appealability [(‘COA’)] when it enters a final order
adverse to the applicant.” See Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011). Where, as
here, this court has decided a petitioner’s claims on the merits, the applicable standard is:
To obtain a COA under § 2253(c), a habeas prisoner must make a substantial
showing of the denial of a constitutional right, a demonstration that …
includes showing that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement
to proceed further.
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal quotation marks omitted); see also
Peterson v. Douma, 751 F.3d 524, 528 (7th Cir. 2014).
This court’s denial of Arnold’s habeas claims relies on settled precedents and principles.
The application of those precedents and principles to those claims does not present difficult or
close questions, and so this case does not meet the applicable standard for granting a certificate
of appealability. The court therefore denies a certificate of appealability.

January 10, 2017
United States District Judge

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