IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

BERNARD COLLINS, 

Petitioner,

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v. )

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Case 12 C 4444

Michael P. Atchinson, Warden,

Respondent.

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MEMORANDUM OPINION AND ORDER

On August 24, 2005, petitioner Bernard Collins was convicted

of first-degree murder. The trial court sentenced him to 45

years’ imprisonment. Petitioner challenged his conviction

without success in both direct appeals and post-conviction

proceedings in the Illinois state courts. Petitioner, proceeding

pro se, now seeks a writ of habeas corpus based on the following

five claims: (1) that the police extracted a confession from him

prior to issuing Miranda warnings in violation of the Fifth and

Fourteenth amendments to the U.S. Constitution; (2) that his

trial counsel’s failure to cite Missouri v. Seibert, 542 U.S. 600

(2004), during his suppression hearing amounted to ineffective

assistance of counsel; (3) that his appellate counsel was

ineffective for not claiming that petitioner’s Fifth and

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Fourteenth Amendment rights were violated during his custodial

interrogation; (4) that his postconviction counsel failed to

provide effective assistance when it misrepresented petitioner’s

arguments in the postconviction petition; and (5) that the

prosecutor violated his due process rights by misconstruing

petitioner’s claims in the state’s motion to dismiss his

postconviction petition. For the reasons stated below, I deny

his petition and decline to issue a certificate of appealability.

I.

The following facts are taken from the Illinois Appellate

Court’s Rule 23 Order affirming petitioner’s conviction and

sentence on direct appeal, People v. Collins, No. 03-CF-2013,

(Ill.App.Ct. March 29, 2007), Resp. Ans. [#11] at Ex. A. (Collins

I), that court’s summary order affirming the motion to dismiss

petitioner’s postconviction petition, People v. Collins, No. 03-

CF-2013, (Ill.App.Ct. Jun. 28, 2011), Resp. Ans. [#11] at Ex. F

(Collins II), and the transcript of petitioner’s trial, Resp.

Ans. [#11] at Ex. N.

On September 27, 2003, petitioner showed up at the residence

of Ms. Collins, his wife of more than eight years from whom he

has been separated for six months. Petitioner, distraught about

Ms. Collins’ relationship with another man, began questioning Ms.

Collins about that relationship from the front steps. Ms.

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Collins asked petitioner to leave. When he refused, Ms. Collins

went outside to talk to him. After ten minutes, Ms. Collins

asked her son who was in the house to call the police. Shortly

thereafter, petitioner pulled out a gun and shot Ms. Collins nine

times.

In his post-arrest interrogation with police officers,

petitioner twice confessed to the murder; the first confession

was not videotaped, but the second one was. Petitioner moved to

suppress statements he made during the first half of his

custodial interrogation, claiming that he was not warned of his

rights under Miranda v. Arizona, 384 U.S. 436 (1966). At the

pretrial hearing, however, two officers testified that they had

given petitioner his Miranda warnings before any questioning took

place, and the trial court credited their version of events and

denied the motion to suppress.

At trial, petitioner testified on his own behalf. Of the

incident, he claimed that he “felt like he was ‘watching

[himself] do it and [he] couldn’t stop.’” Collins I, at 9. Ms.

Collins’ son also testified that he saw petitioner pull the

trigger and kill his mother. Ms. Collins’ housemate at the time

of the murder also testified that she saw petitioner and Ms.

Collins arguing and that at Ms. Collins’ request, she called 911

right before the first shot. A neighbor also testified that she

saw petitioner “walking away [from the scene] with a gun in his

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hand,” and “saw him put it in his jacket pocket.” Resp. Ans.

[#11] at Ex. N at 454. A police officer also testified that she

found “a revolver in [petitioner’s] coat pocket ” when she

arrested him. Id. at 470.

Following deliberations, the jury found petitioner guilty of

first degree murder, and the trial court sentenced him to 45

years’ imprisonment.

II.

Under the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”), a federal court may not grant a state prisoner

habeas relief unless the decision of the highest state court to

adjudicate petitioner’s claims “(1) resulted in a decision that

was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States; or (2) resulted in a decision that

was based on an unreasonable determination of facts in light of

the evidence presented in the state court proceeding.” 28 U.S.C.

§ 2254(d)(1)-(2).

Under AEDPA, a petitioner is also required to exhaust the

remedies available to him in state court prior to seeking federal

habeas relief. See 28 U.S.C. § 2254(b). This provision requires

the petitioner to raise his claims “through one complete round of

state-court review, either on direct appeal of his conviction or

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in post conviction proceedings.” Lewis v. Sternes, 390 F.3d 1019,

1026 (7th Cir. 2004).

Pre-Miranda Confession

Petitioner argues that his interrogation proceeded in two

stages, but that he was given Miranda warnings only at the

commencement of the second stage, after he had already made

incriminating statements during the first stage. Petitioner urges

that statements amounting to a confession of the murder should

have been suppressed because they were obtained in violation of

Miranda v. Arizona, 384 U.S. 436 (1966), since the police

officers only issued the Miranda warnings after he had given a

confession.

Respondent argues that this claim has not been presented for

a full round of state court review, and thus having failed to

“apprise the state courts that he intended to pursue it

independently of his ineffective-assistance claims,” petitioner

has now procedurally defaulted it. Resp. Ans. [#11] at 17.

Respondent is correct that “[b]efore seeking a writ of

habeas corpus in federal court, a petitioner must first exhaust

the remedies available to him in state court.” Perroquet v.

Briley, 390 F.3d 505, 513 (7th Cir. 2004) (explaining that

“[e]xhaustion serves an interest in federal-state comity by

giving state courts the first opportunity to address and correct

potential violations of a prisoner’s federal rights.”); see also

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White v. Gaetz, 588 F.3d 1135, 1139 (7th Cir. 2009) (“A federal

constitutional claim is procedurally barred if a petitioner fails

to fairly present that claim in one complete round of state court

review.”). However, the Seventh Circuit has stated that where a

constitutional challenge is embedded in an ineffective assistance

of counsel claim, the underlying claim may be fairly presented to

the state courts. See McGee v. Bartow, 593 F.3d 556, 567 n.9

(7th Cir. 2010) (reviewing petitioner’s claim that his due

process rights were challenged, even though that claim was

embedded in his ineffective assistance of counsel claims). “Fair

presentment requires the petitioner to give the state courts a

meaningful opportunity to pass upon the substance of the claims

later presented in federal court.” Anderson v. Benik, 471 F.3d

811, 814 (7th Cir. 2006) (internal citations omitted). A claim is

fairly presented so long as “both the operative facts and

controlling law” is “put before the state courts.” Id. The four

factors that courts consider in determining whether a habeas

petitioner has fairly presented his federal claim to the state

court include: “1) whether the petitioner relied on federal cases

that engage in a constitutional analysis; 2) whether the

petitioner relied on state cases which apply a constitutional

analysis to similar facts; 3) whether the petitioner framed the

claim in terms so particular as to call to mind a specific

constitutional right; and 4) whether the petitioner alleged a

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pattern of facts that is well within the mainstream of

constitutional litigation.” Id. at 815. 

Here, even though petitioner presented this claim as part of

his ineffective assistance of counsel claims, the Illinois

Appellate court had before it both the operative facts and the

controlling law to evaluate whether petitioner’s Fifth and

Fourteenth Amendment rights were violated during his custodial

interrogation. Specifically, the Illinois Appellate Court

considered petitioner’s contention that his confession was

“obtained through a two-stage process whereby a confession was

obtained in violation of Miranda and then repeated after Miranda

warnings.” Collins II, at 4, Resp. Ans. [#11] at Ex.F at 4. 

Before the Illinois state courts, petitioner argued that the

facts of his case were similar to those of Seibert v. Missouri,

542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). In

Seibert, the issue “was the admissibility of a confession

obtained by the use of a two-step interrogation strategy that

called for the deliberate withholding of Miranda warnings until

the suspect confessed, followed by a Miranda warning and a

repetition of the confession already given.” United States v.

Stewart, 388 F.3d 1079, 1086 (7th Cir. 2004). In Seibert, a

plurality of the Supreme Court ultimately held that Miranda

warnings given mid-interrogation, after defendant gives an

unwarned confession, are ineffective, and thus any subsequent

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confession is inadmissible. Seibert, 542 U.S. at 617; 124 S.Ct.

at 2613. By arguing that his confession should have been

suppressed based on its factual similarity to Seibert, petitioner

engaged a Constitutional analysis of his claim and fairly

presented the issue to the Illinois state courts. See Anderson,

471 F.3d at 815 (noting that so long as “the state courts [are]

apprised of the constitutional nature of the claim,” it has been

fairly presented). 

To succeed on this claim, it is not precisely clear what

Petitioner must show, because the Seibert decision failed to

produce a majority opinion, and the Seventh Circuit continues to

“discern exactly what the decision requires.” United States v.

Heron, 564 F.3d 879, 884 (7th Cir. 2009). The Seventh Circuit

has stated that the Supreme Court’s plurality opinion “resulted

in two potential tests for evaluating”1 the “question first, warn

later” approach, but the Seventh Circuit has “yet to determine

which tests governs in this circuit.” United States v. Johnson,

680 F.3d 966, 978-79 (7th Cir. 2012). 

Here, the Illinois Appellate Court had no need to determine

which test to apply because it found that there was no prewarning

1“Under the plurality’s test, the court determines whether a two-step

interrogation procedure’s ‘mid-stream recitation of warnings after

interrogation and unwarned confession’ is effective enough to accomplish the

purposes of Miranda.” Johnson, 680 F.3d at 979 n.5 (quoting Seibert, 542 U.S.

at 604). “The second test, from Justice Kennedy’s concurrence, looks to an

interrogator’s intent in using a deliberate two-step interrogation procedure.”

Id. “If this deliberate procedure is used, ‘postwarning statements that are

related to the substance of prewarning statements must be excluded unless

curative measures are taken before the postwarning statement is made.” Id. 

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custodial interrogation. See Johnson, 690 F.3d at 979

(“[Petitioner’s] case fails to satisfy either Seibert test

because he has not shown the existence of a prewarning custodial

interrogation.”). The Illinois Appellate Court reviewed the

record and found that “the trial court expressly found that the

police officers who interviewed defendant were credible when they

testified that Miranda warnings were properly administered before

any questioning took place.” Collins II, at 4 (emphasis in

original). That determination was not unreasonable, given that

the trial court was in the best position to assess the

credibility of the officers. Moreover, I “presume that

determination to be correct unless [petitioner] can rebut it with

clear and convincing evidence to the contrary.” Collier v. Davis,

301 F.3d 843, 848 (7th Cir. 2002); see also 28 U.S.C. § 2254

(e)(1) (“[A] determination of a factual issue made by a State

court shall be presumed to be correct. The applicant shall have

the burden of rebutting the presumption of correctness by clear

and convincing evidence.”). This deference to the state court’s

determinations of fact “stands to reason, in light of the longheld principle of jurisprudence that the trial judge is in the

best position to judge the credibility of witnesses,” and is also

“mandated by Congress under AEDPA.” Murrell v. Frank, 332 F.3d

1102, 1112 (7th Cir. 2003) (internal citations omitted). 

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Petitioner argues that the Illinois Appellate Court’s

determination was unreasonable because he urges that “before

giving Miranda warnings, this petitioner was questioned first.”

Pet. [#22] at 6. His claim, however, is supported only by his

self-serving testimony, which the trial court rejected in favor

of the officers’ testimony that no questioning took place prior

to petitioner receiving his Miranda rights. He has failed to

come forth with clear and convincing evidence that his version of

events should be credited. Thus, Illinois Appellate Court’s

determination of the facts was reasonable given the trial court’s

determination that the officers’ testimony that they gave

petitioner his Miranda warnings in advance of any questioning was

credible. 

Ineffective Assistance of Trial Counsel

To succeed on his claim that his trial counsel was

ineffective, petitioner must surmount “the familiar two-prong

standard set forth in the leading case, Strickland v.

Washington,466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).”

Harris v. Thompson, 698 F.3d 609, 639 (7th Cir. 2012). That is,

he must show that his “counsel’s performance was deficient

because it fell below an objective standard of reasonableness,”

and that “but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. (internal

citations omitted). Petitioner claims that his trial counsel was

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constitutionally ineffective because he failed to cite Missouri

v. Seibert, 542 U.S. 600 (2004), during the pre-trial hearing to

suppress statements that petitioner claimed he made while in

state custody, but before being issued his Miranda warnings. As

discussed above, in Seibert, the U.S. Supreme Court held that “a

police protocol for custodial interrogation that calls for giving

no warnings of the rights to silence and counsel until the

interrogation has produced a confession,” fails to “comply with

Miranda’s constitutional requirements,” and any “statement

repeated after a warning in such circumstances is inadmissible.”

Missouri v. Seibert, 542 U.S. 600, 604, 124 S.Ct. 2601, 2605

(2004). Petitioner argues that had his trial counsel supported

his suppression arguments with citations to Seibert, his

incriminating statements would not have been introduced into

evidence. Pet. Br. [#1] at 14. He urges that counsel’s failure

to support his legal arguments during the suppression hearing

with this Supreme Court precedent was unreasonable in light of

the prevailing professional standards.

In denying this claim, the Illinois Appellate Court

correctly cited Strickland as the governing Supreme Court

standard, and acknowledged that petitioner was required to show

both that his counsel’s performance “fell below an objective

standard of reasonableness and that the deficient performance was

prejudicial in that there is a reasonable probability that, but

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for counsel’s unprofessional errors, the results of the

proceeding would have been different.” People v. Collins, No. 2-

10-0080(Ill.App.Ct. Jun. 28, 2011), at Ex. F to Resp. Ans. [#12]

at 4 (Collins II). After identifying the correct standard, the

Illinois Appellate Court analyzed the trial court record and

focused on the fact that “the trial court expressly found that

the police officers who interviewed the defendant were credible

when they testified that Miranda warnings were properly

administered before any questioning took place.” Id. (emphasis in

original). The Appellate Court found that, given the trial

court’s credibility determinations, “there is no reasonable

probability that an argument founded on Siebert[sic] would have

succeeded either at trial or on appeal.” Id. at 4-5. Because the

court found that petitioner suffered no prejudice from counsel’s

failure to cite Seibert in its suppression motion, it declined to

analyze the first prong of Strickland. Id. at 5.

Petitioner argues that the Illinois Appellate Court’s

decision was an unreasonable application of Strickland’s

formulation of prejudice. He urges that “Strickland’s prejudice

prong does not require counsel’s actions to had[sic] ‘made a

difference.’” Pet. Resp. [#22] at 4. According to him, “all he

has to show is ‘a reasonable probability’ that, but for counsel’s

unprofessional errors, the outcome of the trial would have been

different.” Id. Petitioner appears to argue that the prejudice

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standard applied by the Illinois Appellate Court was erroneous

because it held him to a higher standard than Strickland

requires: “to show a ‘reasonable probability of a different

outcome’ is a less demanding burden that[sic] to show the outcome

would have been different.” Id. (citing Stanley v. Bartley, 465

F.3d 810, 813 (7th Cir. 2006)). While Petitioner’s distinction

is correct, the Illinois Appellate Court recited the correct

standard in its conclusion. It held that there was “no reasonable

probability that an argument founded on Seibert would have

succeeded at trial or on appeal.” Collins II, at 4-5. That is a

correct formulation of Strickland, and given the overwhelming

amount of evidence produced at trial of petitioner’s guilt,

including his own testimony and that of the eyewitnesses, I

cannot say that the Illinois Appellate Court incorrectly applied

Strickland to this claim.

Ineffective Assistance of Appellate Counsel

Petitioner also argues that appellate counsel was

constitutionally deficient because of his failure to argue on

appeal that the interrogation procedure used by police officers

violated petitioner’s Constitutional rights. As with a claim of

ineffectiveness of trial counsel, “[t]he Strickland standard also

governs a claim for ineffective assistance of appellate counsel.”

McNary v. Lemke, 708 F.3d 905, 920 (7th Cir. 2013). As above, I

must review both the alleged unreasonable conduct and the

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prejudice as the result of counsel’s errors. Id. In evaluating

this claim, I must keep in mind that appellate counsel “need not

(and should not) raise every nonfrivolous claim, but rather may

select from among them in order to maximize the likelihood of

success on appeal.” Id. (internal citations omitted). Finally, I

note that “it is possible, albeit difficult, to show that

counsel’s failure to raise a particular claim amounted to

ineffective assistance.” Id. (noting that the reviewing court

will not second-guess “informed strategic choices”).

The Illinois Appellate Court correctly identified the twopronged standard of Strickland. As above, it analyzed appellate

counsel’s failure to raise this claim and found that there was no

prejudice from that failure, because the trial court credited the

testimony of the interrogating officers who said that petitioner

was given his Miranda rights prior to giving his incriminating

statements. Collins II at 4. Thus, there was “no reasonable

probability” that arguing that petitioner’s case was analogous to

Seibert would have succeeded on appeal, and the Illinois

Appellate Court found that petitioner suffered no prejudice on

appeal.

Petitioner argues that the Illinois Appellate Court’s

decision was an unreasonable application of Strickland, where, as

here, a petitioner claims that appellate counsel failed to raise

a viable claim. Pet. Resp. Br. [#22] at 15. He argues that it

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was an error of constitutional magnitude for counsel to decline

to pursue this claim. However, I cannot say it was not a matter

of strategic choice for appellate counsel to pursue the argument

that petitioner was entitled to a conviction on second-degree

murder and to forego the claim that law enforcement extracted a

confession from him before reciting his Miranda rights. Given

the trial court’s assessment of the interrogating officers’

credibility and the damaging eyewitness testimony against

petitioner, it is unlikely that but for counsel’s failure to

raise this claim, there was “a reasonable probability that the

outcome would be different.” See Stanley, 465 F.3d at 813. 

Unreasonable Level of Assistance By Postconviction Counsel

Petitioner also argues that his postconviction counsel

provided him with an “unreasonable level of assistance.” Pet.

[#1] at 6. Specifically, he claims that postconviction counsel,

“when seeking to withdraw from petitioner’s case[,] deliberately

misrepresented the claims in petitioners[sic] post conviction

petition.” Id. This claim, however, is barred by 28 U.S.C. §

2254(i), which provides that “[t]he ineffectiveness or

incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a

proceeding arising under section 2254.” Cannon v. U.S., 326

Fed.Appx. 393, 395 (7th Cir. 2009) (“Prisoners do not have a

constitutional right to counsel in prosecuting a collateral

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attack, and so the shortcomings of the lawyers at this stage fall

on the prisoner himself rather than being imputed to the

state.”).

Prosecutorial Misrepresentation

Finally, Petitioner argues that the state prosecutor made

material misstatements in his motion to dismiss petitioner’s pro

se postconviction petition. To support this claim, however,

petitioner has not pointed to any deprivation of a federal,

constitutional right. He cites no federal case law in support of

his claim that a prosecutor’s failure to accurately present

petitioner’s postconviction arguments in briefs amounts to the

deprivation of a constitutional right, nor is this Court aware of

any. Having failed to assert a cognizable federal right,

petitioner is not entitled to habeas relief based on this claim.

Perroquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (“The

remedial power of a federal habeas court is limited to violations

of the petitioner’s federal rights, so only if a state court’s

errors have deprived the petitioner of a right under federal law

can the federal court intervene.”); see also 28 U.S.C. §

2254(d)(1) (“An application for a writ of habeas corpus ... shall

not be granted ... unless the adjudication of the claim resulted

in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

the Supreme Court of the United States.”) Absent the allegation

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of a deprivation of a federal, constitutional right, I am

compelled to deny this claim. 

III.

 For the foregoing reasons, Petitioner’s petition for a writ

of habeas corpus is denied. For the same reasons, I conclude

that petitioner has not made a “substantial showing of the denial

of a constitutional right” as required by 28 U.S.C. § 2253© and

decline to issue a certificate of appealability. 

ENTER ORDER:

Dated: January 16, 2014

____________________________

Elaine E. Bucklo

United States District Judge

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