Solomon Monroe v. Randy J. Davis , 712 F.3d 1106 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3407
S OLOMON M ONROE,
Petitioner-Appellant,
v.
R ANDY J. D AVIS, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 4334—Joan B. Gottschall, Judge.
A RGUED A PRIL 10, 2012—D ECIDED A PRIL 4, 2013
Before P OSNER, R OVNER and H AMILTON, Circuit Judges.
R OVNER, Circuit Judge. Solomon Monroe appeals the
district court’s decision to deny his petition for a writ of
habeas corpus. Monroe v. Zimmerman, 2010 WL 3307081(N.D. Ill. Aug. 18, 2010); see 28 U.S.C. § 2254. Monroe was
convicted of first-degree murder on an accountability
theory in the Circuit Court of Cook County, Illinois, and
sentenced to a term of 40 years. Monroe contends that
his federal constitutional rights were violated in three
2 No. 10-3407
respects: he was arrested without probable cause, in
violation of the Fourth Amendment; his trial counsel
was ineffective in failing to call his brother and sister-in-
law as witnesses at trial and in support of his motion to
suppress his post-arrest statements, in violation of his
Sixth Amendment right to effective legal representa-
tion; and finally that the State presented insufficient
evidence to support his conviction on an accountability
theory, in violation of his Fourteenth Amendment right
to due process. Finding no merit in any of these argu-
ments, we affirm the denial of his habeas petition.
I.
In the early morning hours of November 23, 1996,
Keith Stalker was fatally bludgeoned and stabbed in
the aftermath of a drug sale gone wrong. Witnesses to the
attack on Stalker led Chicago police to Monroe and
three fellow members of the Black P-Stone Nation street
gang: Michael Thomas, Tyrone Curry, and Tory Jackson.
It turned out that these four men had been making street
sales of crack cocaine and Stalker, a member of another
gang, had been helping to recruit customers for them.
Stalker incurred the wrath of the other men after two
members of Stalker’s gang drove up to make a pur-
chase but then sped off without paying for the cocaine
they had been given. He was beaten by Monroe and
Curry, and then stabbed by Thomas. Monroe would
later acknowledge that he did strike Stalker but
denied any foreknowledge that Thomas would stab
him. Monroe pleaded not guilty to a charge of murder
No. 10-3407 3
and proceeded to trial, contending that he harbored no
knowledge or intent that Stalker would be killed.
Jackson, after himself being acquitted on a murder
charge, opted to cooperate with the authorities and was a
key witness against Monroe at trial. Jackson explained
that on the evening of November 22-23, 1996, he, Thomas,
Curry, and Monroe were selling crack cocaine on the
4500 block of North Magnolia Avenue, in the heart of
Chicago’s Uptown neighborhood. Each of the men
played a different role in the operation of their “drug
spot”: Thomas, a ranking member of the gang, was re-
sponsible for supplying the cocaine and supervising
and enforcing discipline among the others. Jackson took
care of the retail end of the operation, locating customers
and making hand-to-hand sales. Monroe kept the stash
of cocaine hidden and supplied retail-quantity packets
of cocaine to Jackson as needed. Curry handled security,
keeping one eye on the cocaine supply and another on
Jackson, to make sure that he was not “stuck up” by a
customer. R. 31-3 at 11. Stalker, who was a member of
the Gaylord Nation street gang, helped Jackson recruit
customers. Stalker was a cocaine addict and a frequent
customer of Jackson’s, and on occasion he helped out
Jackson in exchange for cocaine when he lacked the
money to support his habit. Their role in fielding cus-
tomers required Jackson and Stalker to station them-
selves on the street, while the others largely kept them-
selves out of view in nearby gangways and shrubbery.
Jackson recalled that sometime between 3:00 and
4:00 a.m. on November 23, a red Chevy Blazer drove up.
4 No. 10-3407
A passenger exited the vehicle and spoke briefly with
Stalker. The man had the letters “GLN” tattooed
across his forehead. GLN is an abbreviation for Gaylord
Nation, the gang to which Stalker belonged; and Stalker
appeared to know the man. He was interested in making
a drug purchase, so Stalker steered him to Jackson. The
man asked Jackson what $150 would buy him; the
answer was an “eight ball” (about 3.5 grams) of crack
cocaine. Jackson did not have that quantity on his
person, so he directed the Blazer to drive around the
block while he obtained the cocaine from Monroe.
When the vehicle returned, Jackson handed the cocaine
to the passenger through the open car window. Immedi-
ately after Jackson handed the cocaine over, the Blazer
sped away. Jackson, who had not been paid, grabbed
the door frame and managed to hold onto the speeding
vehicle for a couple of blocks, until the driver delib-
erately brushed the Blazer against an El viaduct,
knocking Jackson to the ground unconscious. Another
customer of Jackson’s, who happened to witness the
incident, roused him back to consciousness, and Jackson
made his way back to the drug spot.
Jackson found Thomas in a gangway. Thomas was
furious about the loss of the cocaine, and he knocked
Jackson to the ground with a punch to the eye. As
Jackson picked himself up, he saw that Thomas was
angrily stabbing the ground with a 12-inch long “Rambo”
hunting knife. Thomas grumbled that Jackson was
“always fucking up.” R. 31-3 at 30. As the two men
were talking, they heard Curry whistle twice, which they
recognized as a signal for the gang members to show
No. 10-3407 5
themselves. Jackson and Thomas walked out of the gang-
way onto Magnolia Avenue, where they saw that
Curry and Monroe were down the block, escorting
Stalker, shoulder to shoulder, toward them. According
to Jackson, as he and Thomas emerged from the gang-
way, Monroe struck Stalker in the face, causing him
to fall to the ground. Monroe, joined by Curry, continued
to punch Stalker. Then Monroe ran over to a nearby
construction dumpster and retrieved a two-by-four
piece of wood, which he used to strike Stalker twice.
Curry then took the board from Monroe and began to
strike Stalker with it himself. Jackson estimated that
the two men hit Stalker with the board a total of five
to seven times.
At this point, Thomas left Jackson and ran over to the
other men. As Thomas approached, Monroe backed
away from Stalker by about a foot. Without any fore-
warning, Thomas produced his knife and stabbed
Stalker in the stomach. After Thomas removed the
knife from Stalker’s abdomen, he along with Jackson,
Curry, and Monroe fled the scene in Monroe’s car. They
drove to an apartment belonging to friends of Thomas’s
on the south side of the city, where they spent the night.
Stalker was taken to Illinois Masonic Hospital, where
he died later that day. An autopsy would reveal
lacerations to the upper back portion of Stalker’s head
and to his shin and lower leg, abrasions on the front
and side of his head, and contusions on his cheeks and
lips—all consistent with being struck by a blunt object
(including a fist and a two-by-four)—as well as a nine-
6 No. 10-3407
inch, jagged wound to his upper abdomen. The
assistant medical examiner found evidence of swelling
of the brain resulting from the blows to Stalker’s head.
The examiner concluded that Stalker died as a result of
the stab wound to his abdomen, and that the trauma
inflicted on Stalker’s head was a significant con-
tributing factor to his death.
Preliminary investigation led the police to Jackson,
who told them what had happened and gave them
Monroe’s address. The police took custody of Monroe
at his home and took him to a police station for ques-
tioning. There, Monroe orally acknowledged, first to
a detective and later to a prosecutor, that he had partici-
pated in the beating of Stalker and had struck him
twice with the two-by-four. In a final, corrected written
statement, Monroe indicated that he and Curry had
completed their attack on Stalker before Thomas ap-
proached with the knife; earlier, he had indicated that
the beating was still in progress when Thomas ran up
and stabbed Stalker.
Monroe was charged with murder on an account-
ability theory. Before trial, Monroe moved to quash his
arrest (along with the fruits of the arrest, including
his post-arrest statements), contending that the police
lacked probable cause to believe he was involved in
Stalker’s murder as of the time they took him into custody
at his home. Separately, Monroe moved to suppress
the oral and written statements he made at the police
station on the ground that they were the product of
coercion, alleging that he was improperly isolated,
No. 10-3407 7
denied access to an attorney, and physically abused by
the detectives who questioned him. The trial judge
denied both motions after a hearing. In denying the
motion to quash the arrest, the trial court rejected
Monroe’s contention that he was arrested at his home.
The court instead found that Monroe had accompanied
the police voluntarily to the police station and was
placed under arrest there at a later time, by which
point the police had ample evidence confirming his
involvement with Stalker’s death.
Monroe testified in his own defense at trial. Monroe
again acknowledged that he struck Stalker with the two-
by-four. Monroe testified that he did so after Stalker
first picked up the two-by-four and swung at him (Mon-
roe) without provocation, striking him in the hand as he
was attempting to shield his head from the blow. At
that point, Curry punched Stalker, knocking him to the
ground. Monroe, angry with Stalker over the unprovoked
assault, picked up the board and struck Stalker, but
only twice and in the legs. Then Curry snatched the two-
by-four away from Monroe, and Monroe began to
walk away. He saw and heard Curry inflict one or two
blows on Stalker with the board. Curry then caught up
with Monroe as he continued to walk away from
the scene. It was at that point, Monroe testified, that
Thomas ran past Monroe and Curry to Stalker, pulled
out the knife, and stabbed Stalker. Monroe said that he
and Curry were half a block away from Stalker when
Thomas stabbed him. Thomas then joined Monroe and
Curry, and they left the scene along with Jackson and
drove to the south side, where they spent the night.
8 No. 10-3407
Monroe denied that he harbored any knowledge
or intent that Stalker would be stabbed. There was no
agreed-upon plan to kill or harm Stalker, Monroe
testified, and Thomas had never said he was going to
stab Stalker; Monroe said he did not even know that
Thomas had a knife.
Monroe’s testimony departed from his written state-
ment in certain respects, including his assertion at trial
that Stalker had taken the first swing with the two-by-
four and that Monroe and Curry were half a block
away from Stalker when Thomas stabbed him. Monroe
testified that his written statement was not accurate and
that he had signed the statement under duress. As he
had in moving to suppress his oral and written state-
ments, Monroe testified that he was punched repeatedly
by two of the detectives who questioned him; that his
request for counsel was disregarded; and that he was
threatened with life imprisonment if he did not sign the
written statement. The State’s witnesses denied that
any such abuse or coercion had occurred.
As we noted at the outset, the jury convicted Monroe
on the murder charge. The Illinois Appellate Court af-
firmed his conviction in an unpublished order, holding,
inter alia, that there was probable cause to arrest
Monroe and that the evidence presented at his trial was
sufficient to sustain his conviction. The Illinois Supreme
Court denied Monroe’s petition for leave to appeal. In
2002, Monroe filed a postconviction petition in state
court, contending that his trial counsel was ineffective
in failing to call as witnesses in support of his motion to
No. 10-3407 9
suppress and at trial his brother and sister-in-law, Chris
and Isabell Estavia, who lived in the same two-flat as
Monroe and his mother and were witnesses to his ar-
rest. Monroe represented that the Estavias would
have testified that the police forced their way into the
residence, threatened the family dog, and ignored Mon-
roe’s requests to telephone his lawyer; that testimony,
Monroe asserted, would have supported his motion to
suppress his post-arrest statements and also would
have bolstered his trial testimony about the duress
to which he was subjected at the police station. The
trial court summarily dismissed the petition as lacking
merit. The appellate court affirmed the dismissal in an
unpublished order, reasoning in view of certain conflicts
between the Estavias’ prospective testimony and certain
other evidence and arguments presented by the defense
that Monroe’s counsel had legitimate strategic reasons
not to call the Estavias as witnesses and that Monroe
had not shown that he was prejudiced by counsel’s
failure to present their testimony. Monroe again sought
leave to appeal to the Illinois Supreme Court, but the
court denied his petition.
Having exhausted his state-court remedies, Monroe
filed a pro se petition for a writ of habeas corpus in
the district court. Included in that petition were the
three claims Monroe pursues in this appeal: that he was
improperly arrested without probable cause in violation
of the Fourth Amendment, such that the statements
he made following his arrest should have been sup-
pressed; that the State’s evidence was insufficient to
sustain his conviction for murder on an accountability
theory; and that his trial counsel was ineffective for
10 No. 10-3407
failing to present the testimony of his brother and sister-in-
law as to the police misconduct surrounding his arrest.
(A fourth claim was dismissed on the ground of pro-
cedural default and is not at issue in this appeal.) R. 1.
The district court denied Monroe’s petition. Monroe v.
Zimmerman, supra, 2010 WL 3307081. Because the state
court had given Monroe a full and fair opportunity to
present his motion to quash his arrest, the district court
reasoned, Stone v. Powell 428 U.S. 465, 494, 96 S. Ct. 3037,
3052 (1976), precluded it from considering the merits of
his Fourth Amendment claim. Monroe, 2010 WL 3307081,
at *8. As to the sufficiency of the evidence, the court
noted that under Illinois law, as summarized by the
Illinois Appellate Court in affirming Monroe’s convic-
tion, a defendant may be convicted of murder on an
accountability theory when he enters into a common
plan to commit a battery and a murder is then commit-
ted in the course of the battery. Id., at *9. The court
noted that there was ample evidence supporting an
inference that Monroe had entered into a joint plan
with his fellow gang members to commit a battery on
Stalker in retaliation for the theft of the drugs by
members of Stalker’s gang. In view of that evidence,
the Illinois Appellate Court’s rejection of Monroe’s suf-
ficiency argument was not objectively unreasonable. Id.
Finally, as to Monroe’s claim of attorney ineffectiveness,
the court found no reason to question the reason-
ableness of the Illinois Appellate Court’s conclusion
that trial counsel had legitimate reasons not to call
the Estavias as witnesses at either the suppression
hearing or the trial, in view of the conflicts between their
prospective testimony and the other evidence and argu-
No. 10-3407 11
ments that Monroe’s counsel presented at the suppres-
sion hearing, the fact that their credibility in view of
those conflicts and their status as Monroe’s family mem-
bers was diminished, and Monroe’s omission to raise
the circumstances of his arrest at trial. The court also
discerned nothing unreasonable in the state court’s con-
clusion that Monroe had not demonstrated that he was
prejudiced by his counsel’s decision not to present
the Estavias’ testimony. Id., at *10-*12.1 The district
court subsequently granted Monroe’s request for a cer-
tificate of appealability in part, finding as to these
three issues that Monroe had made a substantial
showing that he was denied his constitutional rights, in
that these issues are “debatable among jurists of reason,”
and Monroe’s arguments “deserve encouragement to
proceed further.” Monroe v. Zimmerman, 2010 WL
4038787, at *1 (N.D. Ill. Oct. 12, 2010) (quoting Porter v.
Gramley, 112 F.3d 1308, 1312 (7th Cir. 1997)); R. 40; see
28 U.S.C. § 2253(c).
II.
A. Denial of motion to quash arrest
Monroe challenges the denial of his motion to quash
his arrest. He contends that because the police lacked
1
Because Monroe had not shown that his trial counsel
was ineffective, the court rejected Monroe’s additional argu-
ment that his appellate counsel was ineffective for not raising
this claim in Monroe’s direct appeal of his conviction.
2010 WL 3307081, at *13.
12 No. 10-3407
probable cause to believe he had committed a crime as
of the time he was arrested at his home, he was seized
in violation of the Fourth Amendment, and consequently
the statements he subsequently made while in custody
should have been barred from evidence pursuant to
the exclusionary rule.
We begin by taking note of a threshold argument that
the State has raised in response to Monroe’s appeal on
this point, which is that although Monroe has con-
tended that he did not receive a full and fair hearing
on his motion to quash in state court, he has not
separately renewed his contention that the police
lacked probable cause to arrest him as of the time he
was taken into custody at his home. The State reads
Monroe’s brief to presume that the denial of a full and
fair hearing on his motion by itself would entitle him
to habeas relief. Such a presumption would be incorrect,
as the State maintains. As we shall discuss in greater
detail in a moment, and as the district court recognized,
Stone v. Powell, supra, 428 U.S. at 494, 96 S. Ct. at 3052,
bars a federal habeas court from reaching the merits of
a petitioner’s Fourth Amendment claim so long as the
state court granted him a full and fair hearing on the
claim. Establishing that the petitioner was not granted a
full and fair hearing is thus the means of surmounting
the Stone bar and opening the door to federal review of
the merits of the petitioner’s Fourth Amendment claim.
See Wallace v. Kato, 549 U.S. 384, 395 n.5, 127 S. Ct.
1091, 1099 n.5 (2007) (collecting habeas decisions in
which courts proceeded to merits of Fourth Amendment
claims after finding that petitioners were denied full
No. 10-3407 13
and fair hearings on these claims in state court). Relief
on a Fourth Amendment claim thus requires a habeas
petitioner to show two things: (1) that the state court
denied him a full and fair hearing on his claim, and
(2) that the claim was meritorious. Monroe’s brief never
reaches step 2. We do not read the omission by itself
as reflecting a presumption that it is unnecessary for
Monroe to show that his Fourth Amendment rights
were violated. His brief instead repeatedly contends that
because he was denied a full and fair hearing on his
claim in state court, he is entitled to habeas “review” (e.g.,
Monroe Br. 16, 18, 25, 29, 38), which is probably best
understood as a request, in the event we agree he was
denied a full and fair hearing, that we order the district
court to take up the merits of this claim.
More troubling is the statement in Monroe’s brief
that “Monroe’s appointed counsel does not argue on
this record that his arrest can be said to have lacked
probable cause.” Monroe Br. 39. That reads like a conces-
sion that the police had probable cause to arrest him,
regardless of when the arrest occurred. If Monroe has
no argument that he was arrested without probable
cause, even if, as he contends, he was arrested at his
home, then it is not clear what is at stake in this ap-
peal. Cf. New York v. Harris, 495 U.S. 14, 21, 110 S. Ct. 1640,
1644-45 (1990) (exclusionary rule does not bar admission of
post-arrest statement that defendant makes outside of
home following police officers’ warrantless and non-
consensual entry into his home to make arrest, in violation
of Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371 (1980),
so long as arrest was supported by probable cause). In
14 No. 10-3407
any event, because we conclude below that the state
court did not deprive Monroe of a full and fair hearing
on his Fourth Amendment claim, we need not consider
whether the failure to contest the existence of probable
cause might constitute a forfeiture, if not a waiver, of
the Fourth Amendment claim.
Ultimately, in order to prevail on his Fourth Amend-
ment claim, Monroe would have to show not only that
he was arrested without probable cause, but that the
state court, as a result of the improper arrest, should
have invoked the exclusionary rule to bar the admission
of his post-arrest statements at trial. See Hampton v.
Wyant, 296 F.3d 560, 562 (7th Cir. 2002). But as the
Supreme Court emphasized in Stone, 428 U.S. at 486, 96
S. Ct. at 3048, the primary aim of the exclusionary rule is
to deter the police from violating the Fourth Amend-
ment rather than to remedy an injury to the individual.
“Evidence obtained by police officers in violation of the
Fourth Amendment is excluded at trial in the hope that
the frequency of future violations will decrease.” Id. at
492; 96 S. Ct. at 3051. Application of the rule comes at a
price, for excluding probative evidence of a defendant’s
wrongdoing “deflects the truthfinding process and
often frees the guilty.” Id. at 490, 96 S. Ct. at 3050. The
Court was convinced that the benefits of the ex-
clusionary rule outweigh the costs when invoked at
trial or on direct appeal of a defendant’s conviction. Id.
at 492-93, 96 S. Ct. at 3051-52. But the Court perceived
whatever additional benefit there might be to invoking
the rule on collateral review of a defendant’s convic-
tion to be too slight to justify its cost.
No. 10-3407 15
The view that the deterrence of Fourth Amendment
violations would be furthered rests on the dubious
assumption that law enforcement authorities would
fear that federal habeas review might reveal flaws
in a search or seizure that went undetected at trial
and on appeal. Even if one rationally could assume
that some additional incremental deterrent effect
would be presented in isolated cases, the resulting
advance of the legitimate goal of furthering Fourth
Amendment rights would be outweighed by the
acknowledged costs to other values vital to a rational
system of criminal justice.
Id. at 493-94; 96 S. Ct. at 3052 (footnote omitted). This
led the Court to conclude that relief on a Fourth Amend-
ment claim should normally be unavailable to a peti-
tioner in habeas corpus: “[W]e conclude that where
the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas corpus relief on the
ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.” Id. at 494,
96 S. Ct. at 3052 (footnotes omitted).
Much ink has been spilled over what exactly constitutes
a full and fair hearing for purposes of Stone. See Cabrera
v. Hinsley, 324 F.3d 527, 530-31 (7th Cir. 2003). Our deci-
sions in Cabrera and Hampton make clear that it means
more than just the opportunity to present one’s Fourth
Amendment claim to the state court. Id. at 531-32;
Hampton, 296 F.3d at 563-64. A state court process that
amounts to a sham would not constitute a full and
fair hearing even though the petitioner had his day in
16 No. 10-3407
court on the claim. Cabrera, 324 F.3d at 531-32; Hampton,
296 F.3d at 563-64. Evaluating the adequacy of the
hearing thus requires us to give at least “some attention
to how the state court dealt with the merits” of the claim.
Id. at 564 (emphasis in original). But not too much
attention, as we added in Cabrera. 324 F.3d at 531. Our
role is not to second-guess the state court on the merits
of the petitioner’s claim, but rather to assure ourselves
that the state court heard the claim, looked to the
right body of case law, and rendered an intellectually
honest decision. See Hampton, 296 F.3d at 563-64; see
also Miranda v. Leibach, 394 F.3d 984, 997 (7th Cir. 2005).
Here, Monroe contends that a threshold error made
by the trial judge in resolving his motion to quash his
arrest reveals that the hearing he received was neither
full nor fair. It takes more than an error in the state
court’s analysis to surmount the Stone bar to collateral
relief, however. Id. at 998; Cabrera, 324 F.3d at 532;
Hampton, 296 F.3d at 564; see also Watson v. Hulick, 481
F.3d 537, 542 (7th Cir. 2007).
An “egregious error” in a state court’s Fourth Amend-
ment decision may suffice for this purpose,
Turentine [v. Miller], 80 F.3d [222] at 226 [(7th Cir.
1996)], 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
No. 10-3407 17
judiciary to take seriously its obligation to adjudicate
claims under the Fourth Amendment.” Id. . . . .
Miranda, 394 F.3d at 998. As we shall see, the state
court’s error in this case does not betray an unwilling-
ness on the part of the Illinois judiciary to treat
Monroe’s claim honestly and fairly.
The State more or less concedes that the trial court
indeed did err on a material point. The thrust of Monroe’s
motion to quash was that he was arrested at his home
without probable cause. In denying the motion, the
trial court found that Monroe had instead voluntarily
accompanied officers to the police station and that he
was not arrested until sometime after he arrived there;
and as of that later point in time, the court reasoned,
there was sufficient probable cause to arrest him. R. 31-2
at 185.2 Yet, the court’s finding that Monroe was not
arrested until after he reached the police station appears
to have been inconsistent with the facts stipulated to
by the parties, which acknowledged that Monroe had
been taken away from his home in handcuffs. R. 31-2 at
134.3 Although placing an individual in handcuffs does
2
The record is silent as to how much time passed between
the point at which Monroe was taken into custody at his
home and the point at which the trial court believed Monroe
subsequently was arrested at the police station.
3
Although, as we read the record, the parties’ stipulation did
not identify precisely when and where Monroe was hand-
cuffed, see R. 31-2 at 134 (prosecutor stipulates that “[Monroe]
(continued...)
18 No. 10-3407
not invariably signal that he is under arrest, see United
States v. Smith, 3 F.3d 1088, 1094-95 (7th Cir. 1993) (coll.
cases), “[t]here can be little question that a suspect
placed in handcuffs is not free to leave and, for all
practical purposes, is in police custody . . . .” United States
v. Wilson, 2 F.3d 226, 231 (7th Cir. 1993). There appears
to be no dispute here that once Monroe was placed
in handcuffs, he was under arrest.
But although the trial court’s resolution of the motion
to suppress hinged on its apparently erroneous under-
standing of the facts, the appellate court’s decision did
not. Although the appellate court did not expressly
correct the trial court’s error as to the timing of the
arrest, in the sense of acknowledging and labeling it as
error, the court certainly was aware of the mistake, as
(...continued)
left the house with [the police] and was subsequently hand-
cuffed”), Monroe’s motion to quash represented that the police
had placed him in handcuffs “[a]fter leaving [Monroe’s]
apartment and while still on the porch of the building where
he then resided,” R. 31-2 at 39, and the parties stipulated
that Monroe’s mother, if called to testify, would state that
“when Solomon was taken away [from his residence], he was
taken away in handcuffs.” R. 31-2 at 134. (The parties also
stipulated that the detectives who went to Monroe’s
residence would have arrested him and taken him from the
house without his consent if he had refused to accompany
them. R. 31-2 at 135.) The State itself concedes in the brief it
filed with this court that the parties stipulated that “petitioner
was led away from his residence in handcuffs.” State Br. 15.
No. 10-3407 19
Monroe had expressly pointed it out to the court in the
direct-appeal briefing. R. 20 at 8, 11. Moreover, the
State, in responding to Monroe’s appellate argument
(which was largely a broadside on the reliability of the
witnesses who had implicated Monroe in the attack on
Stalker to the police, see R. 20 at 6, 25-27), relied exclu-
sively on information that was known to the police at
the time they took Monroe from his residence. R. 20 at 59-
65. The appellate court’s analysis, in turn, relied on
the same information recited in the State’s brief, and the
court proceeded to reject Monroe’s contention that this
information was insufficiently trustworthy as proof
of his involvement in the attack. R. 20 at 85-91. Monroe
himself makes no argument that the appellate court’s
resolution of the probable cause issue reflected an er-
roneous understanding of when he was arrested, as the
trial court’s ruling did. The fact that the appellate
court’s analysis did not repeat the error is important,
because its decision was the final decision of the
Illinois courts to reach the merits of Monroe’s Fourth
Amendment claim, and as such it is that decision
which matters for purposes of habeas review. See, e.g.,
Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012),
pet’n for cert. filed, 81 U.S.L.W. 3421 (U.S. Jan. 16, 2013)
(No. 12-885).
Monroe thus received a full and fair hearing on the
merits of his Fourth Amendment claim in the Illinois
courts. Both the trial court and the Illinois Appellate
Court entertained and reached the merits of his claim.
The appellate court looked to the appropriate body
of case law in resolving the claim, citing state prece-
20 No. 10-3407
dents which set forth the relevant Fourth Amendment
principles (for example, People v. Kidd, 675 N.E.2d 910,
920 (Ill. 1996), which in turn relied on the U.S. Supreme
Court’s decision in Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct.
223, 225-26 (1964)); and the court correctly set forth the
standard for evaluating probable cause. R. 20 at 85-86.
Both the trial and appellate courts took the claim
seriously, and although the trial court, in resolving the
claim, committed a significant error as to the timing
of Monroe’s arrest, the appellate court’s analysis did not
repeat the error. Its analysis was consistent with the
parties’ stipulation that Monroe was handcuffed (and
thus arrested) at his home; and the court cited and
relied upon evidence which, in its view, established
probable cause to believe Monroe had committed a
crime and which was known to the police at the time
of Monroe’s arrest. Stone therefore precludes us from
reaching the merits of Monroe’s Fourth Amendment claim.
B. Attorney Ineffectiveness
Monroe contends that he was deprived of his Sixth
Amendment right to the effective assistance of trial coun-
sel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052 (1984). This claim, as we have said, is based on his
counsel’s omission to present the testimony of Monroe’s
brother and sister-in-law, both in support of his motion
to suppress his post-arrest statements and at trial.
Isabell and Chris Estavia lived on the first floor of the
same two-flat building where Monroe resided, and
they were present when the police took Monroe into
No. 10-3407 21
custody. They would have testified that the police
rushed into the building, harassed the Estavias, threat-
ened to harm the family’s dog, then forced their way
upstairs to the second floor, where Monroe lived with
his mother, and ignored Monroe when he asked to
contact a lawyer. Notably, the Estavias were not wit-
nesses to the events culminating in Monroe’s post-arrest
statements at the police station, or to the events under-
lying the criminal charges against Monroe. Even so,
Monroe contends that their testimony would have sup-
ported his effort to suppress his post-arrest statements
as well as his trial defense, by simultaneously casting
doubt on the veracity of police witnesses and bolstering
his own credibility as to the events surrounding his post-
arrest statements.
To prevail on the claim, Monroe was required to
show both that his attorney’s performance fell below an
objective standard of reasonableness and that there
was a reasonable probability that the outcome of the
relevant proceedings (here, the motion to suppress
his post-arrest statements as well as the trial) would
have been different but for his counsel’s failings.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; e.g., Gutierrez
v. Anglin, 2013 WL 466074, at *3 (7th Cir. Feb. 8, 2013).
As we noted earlier, the Illinois Appellate Court sus-
tained the summary dismissal of this claim, finding
that Monroe had satisfied neither of Strickland’s two
criteria. At the outset, the court pointed out that the
Estavias’ representation that the police had burst into
their home was contradicted by the parties’ stipulation,
in conjunction with Monroe’s motion to quash his
22 No. 10-3407
arrest, that the police had remained in the vestibule of
the home while waiting for Monroe. R. 20 at 246-47.
The Estavias’ additional contention that the police
had harassed them and threatened their dog was incon-
sistent with the argument of Monroe’s counsel, again
in connection with the motion to quash, that police
had used “trickery” to get Monroe to accompany them
to the police station. R. 20 at 247. In view of these
conflicts, the court saw no reason to doubt that counsel
made a reasonable strategic decision not to have the
Estavias testify in support of the motions to quash and
to suppress; nor could Monroe show that he was preju-
diced in the sense that the trial court might
have credited Monroe’s contention that his post-
arrest statements were the product of coercion. R. 20 at
247-48. As for the trial, the court noted that the
Estavias’ testimony would have carried little weight
with the jury given their familial connection with
Monroe and also given that Monroe himself did not
testify about any misconduct that occurred at the time
of his arrest; it was therefore reasonable for Monroe’s
counsel to exclude them from the witness list. R. 20 at
248. Moreover, given what the court deemed to be
the overwhelming evidence of Monroe’s guilt, the
court could discern no prejudice stemming from that
decision. R. 20 at 248-49.
Because the state appellate court considered and
rejected the ineffectiveness claim on its merits, and cor-
rectly looked to Strickland as the governing precedent
in doing so, see R. 20 at 245, Monroe must show
No. 10-3407 23
that the court’s resolution constituted an unreasonable
application of Strickland. 28 U.S.C. § 2254(d)(1); see,
e.g., McNary v. Lemke, 2013 WL 673653, at *7 (7th Cir.
Feb. 26, 2013). He cannot satisfy this burden.
The outcome of Monroe’s motion to suppress his post-
arrest statements turned on what happened at the
police station rather than anything that occurred at
Monroe’s home. Monroe testified that police locked
him alone in an interview room, ignored his requests
for an attorney, and punched him when he refused their
demands to tell them what happened. In denying
the motion to suppress, the state trial court credited
the State’s witnesses over Monroe. R. 31-2 at 232-33.
The Estavias, of course were not present and had no
knowledge of what occurred at the police station;
they could only have testified to what occurred at Mon-
roe’s home, before he was taken to the police station.
Monroe theorizes that their testimony that the police
burst into the home and threatened to kill the family
dog, and ignored his request to telephone a lawyer,
would have bolstered Monroe’s credibility with respect
to what occurred at the police station. Although not
wholly without force, Monroe’s theory is far from com-
pelling given the Estavias’ lack of knowledge as to
what happened after Monroe was taken from his
home, and it falls far short of showing that the outcome
of the suppression hearing might have been different
had the Estavias testified.
Moreover, as the appellate court pointed out, there
were certain credibility issues with the Estavias, given
24 No. 10-3407
the conflict between their prospective testimony and
(a) the argument of Monroe’s counsel at the motion
to quash that the police had persuaded Monroe to ac-
company them through “trickery,” and (b) the parties’
stipulation at the motion to quash that the police,
upon their arrival at Monroe’s residence, had waited
for him in the building’s vestibule. Monroe has a point
when he suggests that the court may have made too
much of the purported conflict between the Estavias’
version of the arrest and his counsel’s representation to
the trial court that the police had persuaded Monroe
to accompany them to the police station by “trickery.”
As Monroe’s brief points out, counsel uttered the word
“trickery” once, just before the court ruled on the
motion to quash and as the parties were summarizing
their positions. R. 31-2 at 184. His counsel went to on
say that Monroe had not accompanied the police volun-
tarily, but instead had “yielded to their force.” R. 31-2
at 184-85. And, as we have discussed, there is no
dispute that the police placed Monroe in handcuffs im-
mediately outside of his residence, whatever may
have occurred inside.4 So the Estavias’ version of events
would not necessarily have undermined the basic
premise of Monroe’s motion to quash, which was that
Monroe was arrested at his home. But their testimony
would have conflicted head-on with the parties’ stipula-
4
Counsel’s theory may have been that the police deceived
Monroe into leaving his residence voluntarily, only to find
himself placed in handcuffs once the police had him outside
on the front porch.
No. 10-3407 25
tion that the police, upon arriving at the residence,
had waited for Monroe in the vestibule. R. 31-2 at 134.
The State certainly would have raised the conflict in
opposing the motion to suppress, and that would have
been a significant blot on the Estavias’ credibility. Under
these circumstances, it was not unreasonable for the
state court to characterize the failure to call the Estavias
as witnesses in support of the suppression motion as
a legitimate strategic decision rather than as a lapse
in professional judgment that weakened Monroe’s mo-
tion to suppress.
As to the trial, it is even more difficult to see how the
Estavias’ testimony might have made any meaningful
contribution to the defense case. Again, their testimony
would only have related to Monroe’s arrest. But the
circumstances of his arrest, beyond when and where it
took place, were not even mentioned at the trial, not-
withstanding the fact that Monroe testified and the cir-
cumstances of his arrest certainly were within his knowl-
edge. Monroe renews his assertion that his brother
and sister-in-law would have bolstered the credibility
of his own testimony that the police had punched him
repeatedly at the station, giving the jury reason to
credit his contention that his post-arrest statements,
including in particular his written statement, were the
product of coercion. But, again, the Estavias were not
witnesses to what occurred at the police station at the
hands of the detectives who interviewed Monroe; they
would only have testified as to the alleged misbehavior
of altogether different officers in arresting Monroe. And,
26 No. 10-3407
as the Illinois Appellate Court recognized, given their
familial connection to Monroe, their credibility would
have been subject to doubt. In sum, the support that
their testimony might have provided to the defense
case was too weak to have required a competent attor-
ney to call them as trial witnesses and to show that Monroe
was prejudiced by his attorney’s omission to do so.
C. Sufficiency of the evidence
Finally, Monroe challenges the sufficiency of evidence
to support his conviction for murder on an account-
ability theory. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789 (1979), identifies the pertinent (and
familiar) standard: the evidence, construed in the light
most favorable to the State, is sufficient to support the
conviction so long as any rational trier of fact could
find the essential elements of the offense to have been
proved beyond a reasonable doubt. As we are con-
sidering this claim on collateral review rather than on
direct appeal of the conviction, the Antiterrorism and
Effective Death Penalty Act engrafts an additional layer
of deference onto this inquiry: we may grant relief
on this claim only if the Illinois Appellate Court ap-
plied the Jackson standard unreasonably to the facts of
Monroe’s case. § 2254(d)(1); see, e.g., Trejo v. Hulick, 380
F.3d 1031, 1032 (7th Cir. 2004); Cabrera v. Hinsley, supra,
324 F.3d at 533-34. (The Illinois Appellate Court did not
cite Jackson, but it recited the same standard. R. 20 at 91.)
The state appellate court noted that under Illinois law,
Monroe could be held accountable for Stalker’s murder
No. 10-3407 27
so long as Monroe had engaged in a common design
to commit a battery on Stalker and Stalker was stabbed
in furtherance of that design. R. 20 at 93-94. The court
went on to conclude that the evidence was sufficient
to support a finding that Monroe engaged in a com-
mon plan with Thomas and Curry to severely harm
Stalker. The court noted that Monroe and fellow
members of the gang crew had reason to be upset
with Stalker given that members of Stalker’s gang had
stolen cocaine from them; Monroe himself had admit-
ted both in his written statement and in his trial testi-
mony that he was angry with Stalker. From the whistle
that summoned Thomas and Jackson to the street,
together with the fact that Monroe punched Stalker and
knocked him to the ground as soon as Thomas appeared,
it was reasonable to infer that Monroe was initiating
a collective plan to retaliate against Stalker for the
sale gone awry, and that Monroe’s cohorts, including
Thomas, would be expected to join him. R. 20 at 94-95.
The court acknowledged that Thomas had acted sud-
denly in stabbing Stalker, such that Monroe did not
have time to disassociate himself from that act. None-
theless, the jury, in the court’s view, was entitled to
find that Monroe was present when the stabbing
occurred (and not a half block or more away, as Monroe
had testified); and Monroe’s own testimony revealed
that he not only fled the scene with Thomas and
the others, but remained with Thomas for a day or two
afterwards. Under those circumstances, Monroe’s asser-
tion that he did not know that Thomas had a knife
and did not share his intent to stab Stalker, although
relevant to the jury’s assessment of Monroe’s culp-
28 No. 10-3407
ability, did not preclude the jury from holding Monroe
accountable for Stalker’s murder pursuant to an account-
ability theory. R. 20 at 92, 95-96.
Monroe makes three arguments in his effort to show
that the Illinois Appellate Court unreasonably applied
the Jackson standard in finding the evidence underlying
his conviction to be sufficient. He argues first that
there is no evidence that he had advance knowledge of
any plan to harm Stalker: he argues that the incident
was essentially a fight that occurred spontaneously,
without prior discussion, and that he had no knowl-
edge Thomas might be armed. Second, he notes that
gang membership is by itself insufficient to support an
inference that Stalker’s assailants acted pursuant to a
common design: there was no order given to attack
Stalker, and Monroe, although he helped initiate the
beating, did not hold a position of power within the
gang. Third, Monroe contends that his act of fleeing
with Thomas and the others, which the Appellate
Court cited in support of his conviction, was insuf-
ficient to support an inference that he shared Thomas’s
intent to fatally harm Stalker. In Monroe’s view, the
evidence establishes only that he had an altercation
with Stalker, stepped away when he saw Thomas ap-
proach, and subsequently fled the scene with Thomas.
In assessing the reasonableness of the State court’s
holding as to the sufficiency of the evidence under-
lying Monroe’s conviction, we must of course look to
what state law requires in order to convict an individual
pursuant to an accountability theory. See Jackson, 443 U.S.
No. 10-3407 29
at 324 n.16, 99 S. Ct. at 2792 n.16; Bates v. McCaughtry,
934 F.2d 99, 102-03 (7th Cir. 1991). The Illinois Criminal
Code renders one person accountable for a criminal
offense committed by another person when “[e]ither
before or during the commission of an offense, and with
the intent to promote or facilitate that commission, he
or she solicits, aids, abets, agrees or attempts to aid, that
other person in the planning or commission of the of-
fense.” 720 ILCS 5/5-2(c) (2012).5 As the Illinois Appel-
late Court recognized, that intent is the “cornerstone”
of liability under the accountability statute. R. 20 at 92
(citing People v. Shaw, 713 N.E.2d 1161, 1173 (Ill. 1998));
see People v. Perez, 725 N.E.2d 1258, 1265-66 (Ill. 2000);
People v. Taylor, 712 N.E.2d 326, 329-30 (Ill. 1999). But
the defendant need not necessarily share the principal’s
intent to commit a particular criminal act in order to
be held liable for that act. See Perez, 725 N.E.2d at 1265.
As relevant here, a defendant’s intent to aid in the com-
mission of a crime by another person may be shown
by evidence of a common criminal plan or design in
which the defendant joined. Perez, 725 N.E.2d at 1265;
People v. Thompson, 730 N.E.2d 118, 123 (Ill. App. Ct. 2000).
A defendant’s liability under Illinois’ common-design
rule extends not only to the particular crime that the
defendant intends to aid, but also to another offense
that the principal commits within the same course of
conduct. People v. McClain, 645 N.E.2d 585, 589 (Ill. App.
5
The language of the statute has been modified in only minor,
non-substantive respects since the offense at issue in this
appeal took place in 1996.
30 No. 10-3407
Ct. 1995); see also Hennon v. Cooper, 109 F.3d 330, 334
(7th Cir. 1997) (Illinois law); Brumley v. DeTella, 83 F.3d
856, 865 (7th Cir. 1996) (Illinois law); People v. Terry, 460
N.E.2d 746, 749 (Ill. 1984). Thus, when a defendant
intends to aid in the commission of a battery, and
that battery culminates in a murder, the defendant’s
intent to aid the battery may render him liable for
the murder, even if he did not share the principal’s
intent to kill the victim; the defendant’s shared intent
to commit the battery, and thus to inflict serious harm
on the victim, is enough to make him culpable for the
murder as well. Terry, 460 N.E.2d at 749 (agreeing
that common-design rule “does impose liability for
murder even though a misdemeanor was only in-
tended”); see also Brumley, 83 F.3d at 864-65; Brennan v.
People, 1854 WL 4728, at *3 (Ill. 1854); People v. Duncan,
698 N.E.2d 1078, 1083 (Ill. App. Ct. 1998); McClain,
645 N.E.2d at 589; see also People v. Batchelor, 665
N.E.2d 777, 781 (Ill. 1996) (murder committed in course
of robbery); People v. Kessler, 315 N.E.2d 29, 33 (Ill. 1974)
(attempted murder committed in course of burglary).
So the critical question in this case, as the Illinois
Appellate Court recognized, is whether the evidence
supports a finding that Monroe intended to aid in the
commission of a battery on Stalker.
Granting the State the benefit of all favorable infer-
ences, the evidence was sufficient to support a rea-
sonable inference that there was a common design to
beat Stalker, in which Monroe joined. Gang members
were angry over the stolen cocaine, as evidenced both
No. 10-3407 31
by Monroe’s own written post-arrest statement 6 and by
the fact that Thomas punched Jackson in the face. The
fact that Curry whistled to summon Thomas and
Jackson out to the street supports an inference that
gang members were being called to action; and the fact
that Monroe and Curry, who were escorting Stalker
shoulder to shoulder, began to punch him as soon as
Thomas appeared supports an inference that the group
was going to beat Stalker in retaliation for the conduct
of Stalker’s fellow gang members. It requires no addi-
tional leap to infer that Monroe intended to aid in
the commission of a battery upon Stalker: crediting the
State’s evidence, Monroe threw the first punch, and then
as Curry joined in, Monroe walked to the nearby
6
Although the Illinois Appellate Court indicated that
Monroe at trial similarly acknowledged his anger over the
drug theft, in fact Monroe denied that he was angry over the
theft. R. 31-3 at 230; see also R. 31-3 at 262-263 (“I’m—to tell you
the truth, I—it didn’t matter. The eight-ball, it got stolen. It
got took. We got robbed. Oh, well, you lose some, you win
some. In order to make money, you gone lose money; that’s
what I was always taught. You gone lose some to make some.
So that little $150 worth of cocaine was not a factor to me at
that time.”). Monroe also denied the truth of his written post-
trial statement, in which he stated that he began to beat
Stalker because he was angry about the drug theft. R. 31-3 at
229. The only anger that Monroe acknowledged at trial was
his anger at Stalker when Stalker took an unprovoked swing
at him with the two-by-four. R. 31-3 at 228. Of course, the
jury was not required to believe Monroe’s trial testimony
and was free to credit his written statement instead.
32 No. 10-3407
dumpster, retrieved the discarded board, and struck
Stalker at least twice with it. Monroe’s actions were
thus consistent with an intent to inflict serious harm on
Stalker. It is noteworthy in that regard that the blows
Stalker received to the head were a contributing factor
in his death. Jackson, of course, testified that Monroe
and Curry together struck Stalker with the board a
total of five to seven times; and although Jackson did
not see what part of Stalker’s body they struck, the jury
was not required to believe Monroe’s testimony that
he only struck Stalker in the leg (although Stalker’s leg
did show injuries) or that he walked away immediately
after he struck those blows and was not present while
Curry himself struck Stalker with the board. The jury
was likewise not obliged to credit Monroe’s testimony
that he and Curry had ceased striking Stalker, and
were half a block away when Thomas stabbed him; it
could have credited Jackson’s testimony that Monroe
remained standing next to Stalker, and only backed up
a foot or so as Thomas approached. And although it
was Thomas and Thomas alone who without warning
produced a knife and stabbed Stalker, the evidence
nonetheless permitted the jury to infer that the stabbing
was the culmination of the joint design to commit
a battery upon Stalker in retaliation for the actions of
Stalker’s fellow gang members. That was enough under
Illinois law to find Monroe guilty of murder pursuant
to an accountability theory. See Terry, 460 N.E.2d at 749;
Brennan, 1854 WL 4728, at *3.
The Illinois Appellate Court did not rely improperly
on Monroe’s gang membership or his flight together
No. 10-3407 33
with Thomas in affirming his conviction. Gang affilia-
tion was a circumstance highly relevant to explaining
why Monroe and the others were angry with Stalker
and why they would want to harm him. That was the
limited sense in which the appellate court cited and
relied upon gang membership. See People v. Knox, 608
N.E.2d 659, 663 (Ill. App. Ct. 1993) (“Evidence relating
to the defendant’s gang membership or gang-related
activities is admissible to show common purpose or
design, or to provide a motive for an otherwise inex-
plicable act.”); United States v. Butler, 71 F.3d 243, 251
(7th Cir. 1995) (coll. cases exemplifying proper consid-
eration of gang membership). Nowhere in the court’s
decision is there any indication that the court attached
inappropriate significance to Monroe’s gang affilia-
tion; the court, for example, did not assume that because
Monroe and Thomas were members of the same gang,
Monroe necessarily intended to aid Thomas’s actions.
The court likewise gave appropriate consideration to
Monroe’s flight from the attack with Thomas and the
others, along with the fact that he remained with
Thomas for at least another day, as circumstances
which, not by themselves but in conjunction with the
other facts, supported the inference that Thomas’s
actions were committed pursuant to a common design
to commit a battery on Stalker and that Monroe had
an intent to aid in the commission of that battery. See
Perez, 725 N.E.2d at 1265 (fact that defendant fled
scene and maintained close affiliation with companions
after commission of crime are among factors court may
consider in assessing defendant’s accountability) (citing
People v. Taylor, 646 N.E.2d 567, 571 (Ill. 1995)).
34 No. 10-3407
As Monroe points out, the appellate court may have
erred in suggesting that it was he rather than Curry
who summoned Thomas and Jackson by whistling, see
R. 20 at 94 (indicating that “defendant and Curry, while
standing with the victim, summoned Thomas . . . with
a signal used by them to summon another member’s
presence,” and subsequently stating that “[a] reasonable
inference can be drawn from the circumstances that
defendant summoned Thomas for the purpose of
initiating a battery on Stalker . . . ”). Although Jackson’s
trial testimony did not specify whether it was Curry
or Monroe who whistled, see R. 31-3 at 31-32, the State
seems to agree that it was Curry, see State Br. 12 (“Then
the men heard Curry whistle for them to appear.”). But
that error was not material to the result of the court’s
analysis. The whistle, as we have said, represented
a call to action. Monroe was with Curry when Curry
whistled. More to the point, when Jackson and Thomas
appeared in response to the whistle, Monroe immedi-
ately initiated the attack on Stalker by striking him.
Monroe is also correct in emphasizing that there was
no evidence of a discussion among the men that resulted
in an express plan to inflict a beating on Stalker in re-
taliation for what Stalker’s cohorts had done. But given
the sequence of events, and the actions that Monroe,
Curry, Thomas, and (to a lesser extent) Jackson took,
the jury could permissibly infer that the men battered
Stalker pursuant to a common design, and that Monroe
intended to aid in that battery and that he did in fact
participate in the battery. And as we have said, Monroe’s
intent to assist in the commission of a battery upon
No. 10-3407 35
Stalker is sufficient, under Illinois law, to render him
responsible for the stabbing and murder that Thomas
committed in the course of that battery.
III.
As no constitutional error occurred in the prosecu-
tion of Monroe, the district court properly denied
Monroe’s petition for a writ of habeas corpus. We thank
Monroe’s appointed counsel for their vigorous efforts
on his behalf.
A FFIRMED.
4-4-13