1.1

1IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

TYRONE GILL, )

)

Petitioner, )

)

v. ) No. 11 C 7868

)

MICHAEL ATCHISON, Warden, )

 Menard Correctional Center, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, Chief Judge:

On November 17, 2005, petitioner Tyrone Gill (“Gill”) was convicted after a jury trial in

the Circuit Court of Cook County of first-degree murder for the 2004 stabbing of Nissan Nash

(“Nash”). Gill subsequently was sentenced to 60 years in prison. Before the court is Gill’s

“Petition for Writ of Habeas Corpus – Person in State Custody” pursuant to 28 U.S.C. § 2254.

(Dkt. No. 1 (“Petition”).) For the reasons stated herein, Gill’s Petition is denied.

BACKGROUND

The following facts are taken from the Illinois Appellate Court’s ruling affirming Gill’s

conviction and sentence. (Dkt. No. 12, Ex. A, People v. Gill, No. 1-06-0777 (Ill. App. Ct. Dec.

12, 2007) (unpublished order pursuant to Illinois Supreme Court Rule 23) (“Direct Appeal”).) 

1. Proceedings Before the Trial Court
At Gill’s trial, the state presented evidence showing that Gill fatally stabbed Nash, his

girlfriend at the time. Gill was arrested later the same day after being found in an apartment

located at 4907 West Race in Chicago. His arrest was made without a warrant. 

Gill moved to quash his arrest and subsequent line-up identification based on lack of

probable cause. Detective Timothy O’Brien (“Detective O’Brien”) testified for the state at the

hearing. Detective O’Brien testified that, in the course of investigating Nash’s murder,

information was collected from eyewitnesses that Nash was riding in a “dark colored Ford

Taurus” and that she exited the vehicle by jumping out while it was still in motion. The driver of

the vehicle, described as a “black male, around age 30, who was about 5’10” tall, with a medium

complexion,” followed Nash out of the vehicle, chased after her and, after knocking her to the

ground, stabbed her multiple times. Nash’s friend and her cousin related to the police that Nash

had been dating a man named “Tyrone,” who drove a blue 1994 Ford Taurus and whose last

name was similar to “Gibbs.” According to these witnesses, Nash and Tyrone had a history of

domestic violence in their relationship, and Tyrone was known to “always carr[y] a large style

knife in the front passenger compartment of [his] vehicle.” Additionally, Detective O’Brien

received an anonymous tip that someone named “Tyrone” was in hiding at 4907 West Race, that

this person could be identified by a tattoo of a panther on his right arm, and “had just committed

a murder.” Based on this information, Detective O’Brien, along with Detectives O’Donnell and

Struck, went to the specified address, knocked on the door, and consent was given for them to

enter the dwelling. After interviewing Gill, who at that time identified himself as “Terry,” the

detectives requested that he remove his shirt. He did so, voluntarily, revealing a tattoo of a

panther and the word “TY” on his right arm. While still in the dwelling, Gill subsequently

admitted that his name was Tyrone. Detective O’Brien also testified that he saw what he
believed to be dried blood under Gill’s fingernails and proceeded to place Gill under arrest. The

trial court ultimately denied Gill’s motion to quash. 

After the Assistant State’s Attorney presented evidence on behalf of the People of Illinois

and rested its case, Gill’s trial counsel moved for a directed verdict which was denied by the trial

court. (Dkt. No. 12, Ex. O (“Report of Proceedings”) X35.) Gill was convicted after a jury trial

at which he was represented by counsel. Following conviction but preceding sentencing, Gill

filed a communication with the Attorney Registration Disciplinary Commission of the Supreme

Court of Illinois against his trial counsel. (Report of Proceedings at DD-4.) On the day of

sentencing Gill filed a motion to dismiss counsel based on a theory of ineffective assistance of

trial counsel. (Id. at DD-5.) The trial judge held a hearing reviewing each of Gill’s allegations

against his trial counsel. (Id. at DD-7.) Those allegations included: (1) trial counsel had already

made a decision as to Gill’s guilt since their first encounter, (2) trial counsel failed to keep Gill

informed as to defense strategic decisions, (3) trial counsel failed to investigate the crime scene,

(3) trial counsel failed to bring up the background of a prosecution witness, (5) trial counsel

failed to cross-examine prosecution witnesses who allegedly perjured themselves, (6) trial

counsel failed to put forth an effort to truly defend Gill, and (7) trial counsel asked Gill to come

up with a defense. (Id. at DD-9-19.) After reviewing each point with Gill and his trial counsel,

the trial court denied Gill’s motion to dismiss counsel. (Id. at DD-23.)

2. Direct Appeal

Gill was represented by the State Appellate Defender on appeal. However, the State

Appellate Defender moved for leave to withdraw pursuant to Anders v. California, 386 U.S. 738

(1967), based on an examination of the record revealing the existence of no issues of merit to

justify an argument on appeal. Gill filed a response to the motion, pro se, claiming that: (1) his
constitutional right to counsel on direct appeal was violated; (2) the two-day delay he

experienced before receiving a probable cause hearing after his initial arrest was unconstitutional

because he was held solely for investigative purposes; and (3) the State of Illinois elicited

perjured testimony. The Illinois Appellate Court rejected these arguments, granted the State

Appellate Defender’s motion for leave to withdraw, and affirmed Gill’s conviction. (Direct

Appeal, 3-6.) Gill then proceeded, pro se, to file a petition for leave to appeal (“PLA”) to the

Illinois Supreme Court. Gill raised the identical claims from his direct appeal in his PLA. (Dkt.

No. 12, Ex. D, at 1 (“PLA on Direct Appeal”).) The Illinois Supreme Court denied his PLA on

March 26, 2008. (Dkt. No. 12, Ex. E, People v. Gill, 888 N.E.2d 1186 (Ill. 2008)).

3. Post-Conviction Petition

On October 3, 2008, Gill filed a pro se post-conviction petition in the Circuit Court of

Cook County. (Dkt. No. 12, Ex. F (“Post-Conviction Petition”), C19-C43.) In that petition, Gill

argued: (1) police lacked probable cause to justify his warrantless arrest; (2) the delay between

his arrest and probable cause hearing was unreasonable; (3) direct appellate counsel was

ineffective for failing to raise several “apparent and obvious” claims, including the general claim

of “trial counsel ineffectiveness;” (4) trial counsel was ineffective for: failing to object “when

circuit judge directed verdict against [Gill]”,1 failing to visit the crime scene, failing to

corroborate Gill’s version of events, failing to challenge DNA evidence linking Gill to Nash’s

murder, and entering into stipulations regarding identification of blood samples collected inside

Gill’s car and the chain of custody of physical evidence; (5) the evidence of his guilt presented at

trial was insufficient to support a conviction; (6) the state elicited perjured testimony; and (7) his

1

 Gill appears to be confused on this point, as no directed verdict was entered in his case. 

Perhaps Gill intended to argue that trial counsel was ineffective for failing to seek

reconsideration of the judge’s ruling denying Gill’s motion for a directed verdict. 
sentence of 60 years was excessive. The Circuit Court of Cook County dismissed Gill’s petition

on November 14, 2008 as “frivolous and patently without merit.” (Dkt. No. 12, Ex. G, People v.

Gill, No. 04 CR 17326, at C66 (Cir. Ct. Cook Cty. Nov. 14, 2008).)

Gill, now represented once again by the State Appellate Defender, appealed the denial of

post-conviction relief to the state appellate court, arguing: (1) the trial court erred in dismissing

his post-conviction petition because he had set forth the “gist” of a meritorious perjury claim in

the petition; (2) the trial court erred in dismissing his post-conviction petition because it

overlooked his perjury claim; and (3) the statute pursuant to which the trial court imposed

monetary sanctions on petitioner for filing a frivolous post-conviction petition violated due

process and equal protection. (Dkt. No. 12, Exs. H-K.) The Illinois Appellate Court affirmed

the dismissal of the Post-Conviction Petition on January 19, 2011. (Dkt. No. 12, Ex. L, People v.

Gill, No. 1-08-3585 (Ill. App. Ct. Jan. 19, 2011) (unpublished pursuant to Illinois Supreme Court

Rule 23) (“Post-Conviction Appeal”).)

Gill, still represented by the State Appellate Defender, proceeded to file a PLA with the

Illinois Supreme Court. (Dkt. No. 12, Ex. M (“Post-Conviction PLA”).) The single claim of the

Post-Conviction PLA was that the statute that permits trial courts to impose fees on prisoners

who file frivolous lawsuits violates due process and equal protection. The Illinois Supreme

Court denied Gill’s Post-Conviction PLA on May 25, 2011. (Dkt. No. 12, Ex. N, People v. Gill,

949 N.E.2d 1100 (Ill. 2011) (Table).)

4. Claims at Issue Before this Court

The court notes at the outset that the claims raised in the Petition are somewhat difficult

to follow, because multiple claims may be read into what is characterized by Gill as one claim. 

In its answer, (Dkt. No. 11 (“Answer”)), Respondent presented the substance of the Petition in
the form of eleven (11) separate claims. (Answer at 6-7.) Gill has apparently ratified

Respondent’s characterization of the claims before the court, by adopting them verbatim into his

reply. (Dkt. No. 17 (“Reply”).) (Compare Answer at 6-7, Reply at 4, 6, 13, 16, 21, 22, 24, 25,

26.)

Those claims are: the police lacked probable cause to arrest Gill without a warrant

(“Claim 1”); the length of delay between Gill’s arrest and probable cause hearing was

unreasonable because it was more than 48 hours (“Claim 2”); the delay between Gill’s arrest and

probable cause hearing was unreasonable because it was for the sole purpose of gathering

additional evidence to justify his arrest (“Claim 3”); Gill’s appellate counsel was ineffective for

failing to raise claims 2 and 3 on direct appeal (“Claim 4”); Gill’s trial counsel was ineffective

for failing to object to the two-day delay between Gill’s arrest and the probable cause hearing

(“Claim 5”); Gill’s trial counsel was ineffective for failing to seek an impartial fitness

examination (“Claim 6”); Gill’s trial counsel was ineffective for failing to investigate the crime

scene (“Claim 7”); Gill’s trial counsel was ineffective for failing to call Henri LaBrunche2

 as a

witness (“Claim 8”); Gill’s trial counsel was ineffective for failing to investigate and impeach

prosecution witnesses (“Claim 9”); Gill was unfit to stand trial (“Claim 10”); and the trial court

erred in denying Gill’s request for new counsel (“Claim 11”).

LEGAL STANDARD

Federal habeas review is limited by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). See Julian v. Bartley, 495 F.3d 487, 492 (7th Cir. 2007). Under the AEDPA,

relief may be granted only if the state court’s ruling: (1) was “contrary to, or involved an

2

 Gill has referred to this witness in his handwritten Petition as “Henri LaBrunche,” see Petition

at 31, but later in his typed Reply as “Henry LaBrunch,” see Reply at 23-24. For ease, the court

adopts the spelling from the original Petition.
unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or (2) was “based on an unreasonable determination of the facts in

light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The

state court’s findings of fact are presumed to be correct unless the petitioner presents the court

with clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). Additionally,

federal courts may not grant habeas relief for violations of state law. Estelle v. McGuire, 502

U.S. 62, 67-68 (1991).

Habeas petitioners may not present a claim in federal court until they exhaust each claim

through the state court appeals process. Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008). To

exhaust a claim, the petitioner must present it through either one complete round of direct review

or one complete round of post-conviction review. Id. To be properly presented to the state

courts, the federal nature of each claim must be apparent from the facts and the legal principles

presented. Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001). Failure to exhaust a

claim in state court constitutes a procedural default. See, e.g., O'Sullivan v. Boerckel, 526 U.S.

838, 842 (1999).

Federal courts will review procedurally defaulted claims only if the petitioner can show

that there is cause for the default and actual prejudice as a result of the alleged violation of

federal law, or that a failure to consider the claim will result in a fundamental miscarriage of

justice. Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). Cause requires an objective factor,

external to the defense, that prevented a petitioner from presenting the claim earlier; prejudice

means that the alleged error “so infected the entire trial that the resulting conviction violates due

process.” Id. (internal citations omitted). 
On March 20, 2012, after Respondent filed his Answer but before Gill’s Reply, the

United States Supreme Court held that “[i]nadequate assistance of counsel at initial-review

collateral proceedings may establish cause for a prisoner’s procedural default of a claim of

ineffective assistance at trial.” Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012). However, this

“narrow exception” only applies in states “[w]here . . . the initial-review collateral proceeding is

the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial.” 

Id. Cause may be established in such cases either, (1) where the state courts failed to appoint

counsel for the initial-review collateral proceeding, or (2) where appointed counsel at the initialreview collateral proceeding was ineffective according to the standards articulated in Strickland

v. Washington, 466 U.S. 668 (1984). Id. at 1318. In either scenario the prisoner must also

“demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one

. . . [which] has some merit.” Id. With these principles in mind, the court considers each of

Gill’s habeas claims.

ANALYSIS

1. Claims that Are Procedurally Defaulted

As a preliminary matter, the court must determine which claims Gill has preserved and

which claims he has defaulted. The court agrees with Respondent that most of Gill’s claims are

procedurally defaulted. To preserve a claim for federal habeas review, the state prisoner must

“assert his federal claim through one complete round of state-court review.” Malone, 538 F.3d

at 753. For prisoners in Illinois, this requires that they “have [] appealed to the Illinois Appellate

Court and presented the claim in a petition for leave to appeal to the Illinois Supreme Court.” 

Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007). Gill has asserted four claims in total

through one complete round of state-court review: (1) his constitutional right to counsel on direct
appeal was violated; (2) the two-day delay he experienced before receiving a probable cause

hearing was unconstitutional because he was held solely for investigative purposes; (3) the State

of Illinois elicited perjured testimony, and (4) the statute that permits trial courts to impose fees

on prisoners who file frivolous lawsuits violates due process and equal protection. Only one of

these claims, however, is before this court: the constitutionality of the two-day delay between

Gill’s arrest and his probable cause hearing (Claim 3). Claims 1, 2, 4-11 are thus procedurally

defaulted, leaving only Claim 3 for further review. 

a. Excuse for Ineffective Assistance of Trial Counsel Claims (Claims 5-9)

Gill asserts five claims which may be considered ineffective assistance of trial counsel

claims: his trial counsel was ineffective for failing to object to the two-day delay between Gill’s

arrest and his probable cause hearing (Claim 5); his trial counsel was ineffective for failing to

seek an impartial fitness examination (Claim 6); his trial counsel was ineffective for failing to

investigate the crime scene (Claim 7); his trial counsel was ineffective for failing to call Henri

LaBrunche as a witness (Claim 8); and his trial counsel was ineffective for failing to investigate

and impeach prosecution witnesses (Claim 9). Gill argues that these claims are all excused from

procedural default in light of the Supreme Court’s ruling in Martinez v. Ryan, 132 S. Ct. 1309

(2012). (Reply at 7-16.) 

As noted above, Martinez provides a narrow exception to traditional procedural default

rules as applied to ineffective assistance of trial counsel claims. This exception only applies in

states where an initial-review collateral proceeding is the defendant’s “first occasion to raise a

claim of ineffective assistance at trial.” Martinez, 132 S. Ct. at 1315, 1317. Illinois is not such a

state. In Illinois, defendants may raise ineffective assistance of trial counsel claims on direct

appeal if the “facts which form the basis for these contentions were contained in the trial record.” 
People v. Foster, 660 N.E.2d 951, 958 (Ill. 1995). Moreover, if the trial record is incomplete to

form the basis of an ineffective assistance of trial counsel claim, the defendant also has the

ability to file a Krankel post-trial motion, pro se, to further develop the record on the issue prior

to direct appeal. People v. Krankel, 464 N.E.2d 1045, 1049 (Ill. 1984); see also People v.

Moore, 797 N.E.2d 631, 637 (Ill. 2003) (explaining that under Krankel “the trial court should

first examine the factual basis of the defendant's claim . . . . if the allegations show possible

neglect of the case, new counsel should be appointed.”); People v. Cummings, 813 N.E.2d 1004,

1012 (Ill. App. Ct. 2004) (when Krankel is invoked trial courts must “afford the defendant an

opportunity to specify and support his complaints”). 

An analysis of the relevant claims shows that Gill had the knowledge and opportunity to

raise his ineffective assistance of trial counsel claims before his post-conviction proceedings –

either post-trial under Krankel, or on direct appeal. For example, Claim 5 (failure to object to

delay between arrest and probable cause hearing) relies on Gill’s trial counsel’s failure to take an

action at trial; something clearly ascertainable from the trial record. Gill could, and in fact did,

raise this issue on direct appeal. Additionally, Claims 6-9 were raised by Gill prior to the end of

trial at a Krankel hearing where the trial court reviewed Gill’s allegations and addressed the

question of whether trial counsel had been constitutionally ineffective. (Dkt. No. 12, Ex. P

(“Common Law Record”) Part 2, C49-52; Report of Proceedings at D19-20.) As discussed

above, Martinez applies only where petitioner’s first opportunity to raise an ineffectiveness

claim is at an initial-review collateral proceeding. In the words of Judge Gettleman, that “is not

the case here.” Blair v. Rednour, No. 11 C 4108, 2012 WL 1280831, at *4 (N.D. Ill. Apr. 11,

2012). Thus, although Martinez acknowledges that, “[w]ithout the help of an adequate attorney,

a prisoner will have . . . difficulties vindicating a substantial ineffective-assistance-of-trial-
counsel claim,” Martinez, 132 S.Ct. at 1317, by its own terms it is simply not applicable to Gill’s

situation. Accordingly, the procedural default of Claims 5-9 cannot be excused for cause under

Martinez.

Gill further argues that his procedural default of Claims 5-9 should be excused so as to

prevent a fundamental miscarriage of justice. A fundamental miscarriage of justice occurs only

in the “extraordinary case, where a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 321 (1995). 

Gill provides little substantive support for his assertion of a fundamental miscarriage of

justice. In Claim 8, Gill states that further trial counsel investigation of five prosecution

witnesses “would have provided exculpatory evidence that [Gill] did not commit this crime and

that [the witnesses] had informed the police and states [sic] attorney that they were unable to

identify [Gill] as the perpetrator and that it was someone else who killed [Nash].” (Reply at 24.) 

When asserting innocence, a petitioner “must support the . . . claim ‘with new reliable

evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence—that was not presented at trial.’” Coleman v. Hardy, 628 F.3d 314,

319 (7th Cir. 2010) (quoting Schlup, 513 U.S. at 324). Gill, however, fails to provide new

evidence of his innocence in any form, including corroborating witness affidavits. Simply

claiming innocence without more is not enough to excuse default. Id. at 319. Therefore, Gill’s

procedural default of Claims 5-9 is not excused based on a fundamental miscarriage of justice. 

Because Gill has failed to make a sufficient showing of cause and prejudice under Martinez, or

of actual innocence, the court will not consider the merits of Gill’s defaulted claims for

ineffective assistance of trial counsel.

b. Excuse for Claims 1, 2, 4, 10, 11
As noted above, Gill can excuse the defaults of his other, non-ineffective assistance of

trial counsel claims only if he can show either cause for the default and actual prejudice, or that

the failure to consider the claim will result in a fundamental miscarriage of justice. Coleman v.

Thompson, 501 U.S. 722, 750 (1991). Where a petitioner fails to argue excuse for his procedural

default based on cause and prejudice or a fundamental miscarriage of justice, the court cannot

consider his claim. Crockett v. Hulick, 542 F.3d 1183, 1193 (7th Cir. 2008). Cause requires an

objective factor, external to the defense, that prevented a petitioner from presenting the claim

earlier; prejudice means that error “so infected the entire trial that the resulting conviction

violates due process.” Smith, 598 F.3d at 382 (internal citations omitted).

In Claim 1, Gill argues that his procedural default should be excused because, “[T]he

issues of probable cause for his arrest was [sic] was not preserved in a post-trial motion and

because [he] had no attorney on direct appeal.” (Reply at 4.) Gill argues that Claim 2 should be

excused from default because it “would and should have been adjudicated on direct appeal by his

trial and direct appeal attorney.” (Id. at 6) Similarly, Gill contends that Claim 10 should be

excused because “he could not provide the support his attorney needed to present a complete

defense and there existed an adversarial relationship with his trial court attorney at the time of

trial.” (Id. at 26) Finally, Gill posits that Claim 11 should likewise be excused from default

because he “did not know of all the neglect he suffered until he was informed by counsel at the

end of trial that [counsel] had failed to subpoena five witnesses who were eye witnesses th [sic]

the actual murder.” (Id. at 27.) Nothing presented by Gill rises to the level of an objective factor

external to the defense required for finding cause for the default. Smith, 598 F.3d at 382. In fact

all of the reasons given for default are internal to Gill’s defense. Because Gill has not met the
standard for cause for these claims, the court need not evaluate the alleged prejudice suffered. 

Coleman, 501 U.S. at 750.

Finally, Gill again seeks refuge under Martinez to excuse his default in Claim 4 where he

alleges that his appellate counsel was ineffective for failing to raise Claims 2 and 3 on direct

appeal. (Reply at 14.) For the reasons discussed previously, Martinez is inapplicable to Gill’s

claims. Furthermore, because Gill does not argue that Claims 1, 2, 4, 10, or 11 should be

excused based on a fundamental miscarriage of justice, the court cannot reach this question. 

Crockett, 542 F.3d at 1193. Therefore, because Gill has not made a sufficient showing of either

cause and prejudice or actual innocence, this court will not consider his defaulted bases for

Claims 1, 2, 4, 10, and 11. 

3. Fourth Amendment Claim (Claim 3)

Gill’s third claim, that the delay between his arrest and probable cause hearing was

unreasonable because it was for the sole purpose of gathering additional evidence to justify his

arrest, is not procedurally defaulted as it was presented through one complete round of state

review. Malone, 538 F.3d at 753. However, Respondent argues that it should be nonetheless

barred under Stone v. Powell, 428 U.S. 465 (1976). The court agrees.

This is a constitutional claim under the purview of the Fourth Amendment which entitles

defendants to probable cause hearings promptly after arrest. Gerstein v. Pugh, 420 U.S. 103,

124-25 (1975). Generally, hearings held within 48 hours are reasonable under the Fourth

Amendment, County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991), unless there was a

delay “chiefly . . . to gather additional evidence to justify the defendant’s arrest,” People v.

Nicholas, 842 N.E.2d 674 (Ill. 2005). Even if there was such a delay, however, if a habeas

petitioner has been previously afforded “an opportunity for full and fair litigation of a Fourth
Amendment claim, [he] 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.” Stone,

428 U.S. at 494; see also Ben-Yisrayl v. Buss, 540 F.3d 542, 552 (7th Cir. 2008) (full and fair

opportunity met when claim was presented to each state court in the direct appeal process);

Hayes v. Battaglia, 403 F.3d 935, 939 (7th Cir. 2005) (if the petitioner was afforded a full and

fair opportunity, federal courts “may not enforce the exclusionary rule”); Cabrera v. Hinsley,

324 F.3d 527, 530-31 (7th Cir. 2003) (unless the state Fourth Amendment review was a “sham,”

federal courts “will not examine whether the judge got it right”).

Here, Gill cannot claim he was denied a full and fair opportunity to present his Fourth

Amendment claim as he properly presented it to each level of review along the state appeals

process. Ben-Yisrayl, 540 F.3d at 552. Moreover, the state review cannot properly be

characterized as a sham. On direct appeal, the Illinois Appellate Court determined that the delay

between Gill’s arrest and his probable cause hearing was not unreasonable or used solely to

gather additional evidence, because sufficient evidence already existed to satisfy probable cause

at the time of his arrest. (Direct Appeal at 4.) In support of this conclusion, the court cited the

description of Gill’s vehicle and concealed knife, the eyewitness description of the perpetrator,

the account of Nash’s friend and cousin describing Nash’s boyfriend “Tyrone” and their history

of domestic violence, and the anonymous tip directing the police to find Gill at 4907 West Race,

as someone with a panther tattoo, who “had just committed murder.” (Id. at 4-5.) Because Gill

has already received a full and fair litigation of his Fourth Amendment claim, this court cannot

consider the merits of Claim 3 as a basis for habeas corpus relief. Stone, 428 U.S. at 494.

4. Certificate of Appealability
Upon issuing an order denying habeas relief, this court must determine whether to issue a

certificate of appealability for any of the claims. See Rule 11(a) of the Rules Governing Section

2254 Cases in the United States District Courts. This requires that the applicant make a

“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If the

claim is denied on the merits, the applicant must show that reasonable jurists would find the

district court’s assessment of the constitutional claims to be debatable or wrong. Slack v.

McDaniel, 529 U.S. 473, 484 (2000). If the claim is denied on procedural grounds, the applicant

must show that reasonable jurists would find it debatable whether the claim states the denial of a

constitutional right, and that they would find the procedural ruling debatable as well. Id. In this

case, the court has denied all of Gill’s claims on procedural grounds. Because the court finds

that the relevant case law clearly compels the result reached here, the court declines to issue a

certificate of appealability.

CONCLUSION

For the reasons stated herein, Gill’s “Petition for Writ of Habeas Corpus – Person in State

Custody” (Dkt. No. 1) is denied in its entirety, and the court declines to issue a certificate of

appealability.

ENTER:

_______________________________

JAMES F. HOLDERMAN

Chief Judge, United States District Court

Date: July 2, 2012