IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.

BRANDON V. WYATT

Petitioner,

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v. ) No. 12 C 4906

MICHAEL P. ATCHISON, Warden, Menard

Correctional Center,

Respondent.

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MEMORANDUM OPINION AND ORDER

At the conclusion of a bench trial in February of 2005,

petitioner Brandon Wyatt was convicted of first degree

murder and attempted armed robbery and sentenced to

consecutive terms of thirty-six and six years of

incarceration for the July 17, 1999, shooting of Metra train

ticket agent Wilbert Hooten. Petitioner challenged his

conviction and sentence without success in both direct

appeals and post-conviction proceedings in the Illinois

state courts. Having no further avenues for relief in the

state courts, petitioner now seeks a federal writ of habeas

corpus. He asserts two claims: first, that the trial court

violated his rights under the Fourteenth Amendment when it

denied his motion to suppress his confession; and second,

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that his trial counsel’s refusal to call him to testify at

the suppression hearing violated his right to effective

counsel. For the reasons that follow, I deny his petition

and decline to issue a certificate of appealability.

I.

The following facts are taken--but for a few undisputed

details gleaned from my review of the record--from the

Illinois Appellate Court’s Rule 23 Order affirming

petitioner’s conviction and sentence on direct appeal,

People v. Wyatt, No. 1-05-0819 (Ill. App. Ct. Sept. 17,

2008), Resp. Ans., Exh. A (hereinafter, “Wyatt”).1

 

On July 10, 2000, almost a year after Hooten’s

shooting, and a few months shy of petitioner’s eighteenth

birthday, petitioner was awakened in the middle of the night

at a friend’s house and arrested by Chicago Police Detective

McVicker and another officer. Petitioner was arrested,

handcuffed, taken to a squad car, and advised of his Miranda

rights before being transported to Chicago’s Area 2 police

station.

At around 2:40 a.m., petitioner was taken to an

interview room at Area 2. Detective McVicker removed

1

 The state court’s factual findings are presumed correct

absent clear and convincing evidence to the contrary, of

which, as discussed in a later section, petitioner offers

none. Miller-El v. Cockrell, 537 U.S. 322, 324 (2003). 

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petitioner’s handcuffs and again advised him of his Miranda

rights. McVicker was wearing his firearm and did not remove

it from its holster. At some point, petitioner began to

fall asleep during the interview, so McVicker stopped

questioning him, gave him a bathroom break, and left the

interview room, telling petitioner to “yell or knock on the

door if he needed anything.” McVicker checked on petitioner

periodically over the next few hours and observed that he

was sleeping. 

The Illinois Appellate Court made no mention of what,

if anything, took place from that point until 2:55 the next

afternoon, when it noted that petitioner was again allowed

to use the bathroom. Thereafter, petitioner was given food

and a soda (at around 3:30 p.m.), palm-printed and

fingerprinted at some point thereafter, and placed in

physical lineups from 10:30 to 11:30 p.m. After police

advised petitioner that he had been identified in a lineup,

petitioner confessed to Hooten’s murder.

McVicker then contacted Assistant State’s Attorney Beth

Pfeiffer, who interviewed petitioner at around 1:00 a.m. on

July 11, 2000. Pfeiffer again advised petitioner of his

Miranda rights and explained that she was not his attorney

and that he could be tried as an adult. Petitioner said he

understood his rights, then made inculpatory statements,

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including a videotaped statement filmed at about 4:15 a.m. 

The video memorializes petitioner being orally Mirandized. 

Petitioner did not, however, receive written Miranda

warnings.

The Illinois Appellate Court summarized petitioner’s

videotaped confession:

[Petitioner] stated that he had a conversation

with a friend and they planned the robbery.

[Petitioner] stated that he shot and killed the

victim when he attempted to rob him. [He] stated

that he was armed with a .32 caliber revolver

that he had taken from his father’s tool chest

and was dressed in black jeans and a black

jacket to avoid standing out. He waited on the

train platform for a long time for a train which

appeared to be good to rob. When the victim

asked [petitioner] for his fare, [petitioner]

took out his gun, pointed it at the victim and

demanded his money. The victim dropped his fares

and receipts but no money. [Petitioner] told the

victim it was not a joke and the victim held up

his keys and jingled them at [petitioner], then

took a step toward [petitioner]. [Petitioner]

shot the victim and then tried to open the

doors. [Petitioner] tried to shoot out the

windows when the doors would not open. When the

doors opened, the other conductor jumped off the

train and [petitioner] chased him before hiding

in a garage and then returned home.

[Petitioner] stated that he did not know where

the gun went and that when his father asked, he

told him that he was in the alley shooting with

friends and threw the gun away when the police

came. [Petitioner] apologized to the victim’s

family and his own family for his actions.

[Petitioner] stated that he was treated “fairly

good” and with respect and dignity by the

police. [Petitioner] stated that no threats or

promises were made in exchange for his

statement.

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Before the start of the trial, petitioner moved to

suppress the inculpatory statements he made after his

arrest. A review of petitioner’s motion reveals the

following factual allegations: 1) that petitioner was

seventeen years old and living with his parents at the time

of his arrest; 2) that he was awakened from sleep by the

arresting officers; 3) that he was deprived of sleep and

continuously interrogated by members of the Chicago Police

Department and ASA Pfeiffer during his custody; 4) that his

waiver of his Miranda rights was not knowing, intelligent,

and voluntary; 5) that his statements were the “product of

coercion” by the police and were “induced by overcoming his

will to resist through sleep deprivation, refusal to afford

him the opportunity to confer with counsel and his lack of

experience with criminal matters” and “by direct and

indirect promises of leniency by ASA Pfeiffer;” 6) that he

was denied bathroom privileges for over fourteen hours; 7)

that he was in custody for over twenty-two hours; and 8)

that he was interrogated outside the presence of a youth

officer or concerned adult. 

As noted above, petitioner did not testify at the

suppression hearing, nor did his attorney put on any

evidence. The trial court did, however, treat the

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allegations in petitioner’s motion as petitioner’s sworn

statement of the facts. 

The court denied the motion, concluding that

petitioner’s statement was voluntary. The court rejected

the argument that the confession was “clearly an act” and

that petitioner had “merely regurgitated a script created by

the police.” The court found that the testimony of the

state’s witnesses--including Detective McVicker and ASA

Pfeiffer, both of whom denied that petitioner was

interrogated for twenty-two hours, and denied that they had

deprived him of sleep or of bathroom privileges--was

credible. The court further found that the state had shown

that petitioner had been properly advised of his Miranda

rights and had knowingly waived them, and that no “improper

actions” by the state had been established. 

At trial, petitioner’s videotaped confession was shown,

as was the testimony of McVicker, Pfeiffer, and several

eyewitnesses to the events surrounding Hooten’s shooting:

train conductors who had seen Dace and petitioner on the

train platform; the train conductor who worked with Hooten

at the time of the shooting, and who identified petitioner,

in a lineup and at trial, as the shooter; and a passenger on

the train, who testified that she saw petitioner running

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after the conductor and who likewise identified him, in a

lineup and at trial, as the man with a gun. 

The trial court also considered evidence that

fingerprints taken from the crime scene matched only Dace,

and not petitioner; that a .32 caliber bullet was found in

the victim and .38 caliber bullets were recovered from the

train vestibule; and that the murder weapon was never

recovered. In rendering its verdict, the trial court

referred to petitioner’s videotaped confession as the

“linchpin” of the State’s case. 

Petitioner asserted various claims on direct appeal and

in post-conviction proceedings. Relevant to the instant

petition are his claim, on direct appeal, that the trial

court erred in denying his motion to suppress based on the

erroneous determination that petitioner’s videotaped

confession was voluntary, and his claim, in a postconviction petition, that his trial counsel was ineffective

for refusing to let him testify at the hearing on his

suppression motion. Both claims were rejected in Rule 23

Orders by the Illinois Court of Appeals, the last state

court to issue an opinion in his case.

II.

Under the Anti-Terrorism and Effective Death Penalty

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

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prisoner habeas relief unless the decision of the highest

state court to adjudicate the petitioner’s claims on the

merits, “(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 the facts in light of

the evidence presented in the State court proceeding.”

Smiley v. Thurmer, 542 F.3d 574, at 580 (7th Cir. 2008)

(citing 28 U.S.C. § 2254(d)). Moreover, “[w]hen the last

state court to issue an opinion on a petitioner’s federal

claim has resolved that claim on an adequate and independent

state ground, federal habeas review of the claim is

foreclosed. Miranda v. Leibach, 394 F.3d 984 (citing

Lambrix v. Singletary, 520 U.S. 518, 523, 117 S.Ct. 1517,

137 L.Ed.2d 771 (1997) (collecting cases)).

In this case, respondent argues that petitioner’s first

claim-—that the trial court erroneously failed to suppress

his confession--is procedurally defaulted because the

Illinois Appellate Court rejected it based on a state law

procedural ground, namely petitioner’s failure to abide by

725 ILCS 5/116-1(c). Under that statute, the appellate

court held, “any issue that is not specifically raised

during trial by motion or proper objection and by written

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posttrial motion is considered waived.” Wyatt, at 7. The

court went on to hold that “this rule is grounded in sound

policy and must be strictly followed,” quoting at length

from the Illinois Supreme Court’s decision in People v.

Enoch, 122 Ill. 2d 176, 186-88 (1988). 

The court considered and rejected petitioner’s argument

that he had preserved his claim with the assertion, in his

motion for a new trial, that he “did not receive a fair and

impartial trial as guaranteed by the Illinois and federal

constitutions.” The court held, however, that “the

specificity required must be beyond broad, general

statements or boiler-plate language,” and concluded that

petitioner’s allegation “in no way contains any specific

claim of error to put the trial court or the State on

notice” of the specific claim he raised on appeal, and thus

“cuts clearly against the policy” set forth in Enoch.

It is true that the Illinois Appellate Court went on to

consider the merits of petitioner’s claim. But as the

Seventh Circuit has repeatedly acknowledged, “when a state

court decides the merits and asserts a procedural bar, the

federal court must respect both rulings.” Brooks v. Walls,

279 F.3d 518, 522 (7th Cir. 2002); Prihoda v. McCaughtry,

910 F.2d 1379, 1383-84 (7th Cir. 1990) (“[s]ometimes the

court gives alternative procedural and substantive grounds

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(‘The claim has been waived; but even if it had not been we

would find no error.’)... [I]n alternative-grounds cases the

federal court must respect the procedural basis, so long as

the state court says that each ground is sufficient.”);

Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) (“a state

court need not fear reaching the merits of a federal claim

in an alternative holding. By its very definition, the

adequate and independent state ground doctrine requires the

federal court to honor a state holding that is a sufficient

basis for the state court’s judgment, even when the state

court also relies on federal law.”). 

Petitioner argues that his case is not like Brooks and

Prihoda, in which the petitioners’ claims were defaulted,

but instead is like Harris, in which the Court held that

procedural default did not bar consideration of the

petitioner’s federal claims because the Illinois Appellate

Court had not “clearly and expressly” rested its holding on

a state procedural ground. 489 U.S. at 263. Petitioner

insists that similarly in his case, the Illinois Appellate

Court did not rely on the state forfeiture law as a ground

for its decision, but merely “note[d] a procedural default

and then ignore[d] it,” preserving his claim under Harris. 

Petitioner’s proposed interpretation of the appellate

decision in his case cannot be squared with the court’s

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thorough discussion of the waiver issue. Unlike in Harris,

where the Illinois Appellate Court had merely “stat[ed] that

most of petitioner’s allegations “could have been raised

[on] direct appeal,” 489 U.S. at 266, the court in this case

cited the controlling state statutory and case law;

explained the policy considerations underlying the law; and

expressly applied the law in rejecting petitioner’s argument

for non-waiver. Only then did the court go on, “[w]aiver

notwithstanding,” to address the merits of petitioner’s

claim. Wyatt, at 8. Viewed as a whole, the Illinois

Appellate Court’s decision plainly sets forth alternative

procedural and substantive bases for its holding, which I am

compelled by Prihoda, Brooks, and, indeed, Harris to

respect. Accordingly, I conclude that petitioner’s claim

that the trial court violated his Fourteenth Amendment

rights by failing to suppress his confession is procedurally

defaulted.2

I now turn to petitioner’s ineffective assistance of

counsel claim, which I review on the merits. To prevail on

this claim, petitioner must meet the well-known, two-prong

standard of Strickland v. Washington, 466 U.S. 668 (1984),

2

 Petitioner does not claim that the default is excused by

“cause and prejudice,” or that the “fundamental miscarriage

of justice” exception to the procedural default rule

applies. See House v. Bell, 547 U.S. 518, 536 (2006).

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under which he “must show both that his lawyer’s performance

fell below an objective standard of reasonableness as

measured by prevailing professional norms, and also that the

petitioner suffered prejudice as a result of counsel’s

errors.” Pole v. Randolph, 570 F.3d 922, 940 (7th Cir.

2009). If petitioner fails to make an adequate showing on

either component, I need not consider the other before

rejecting his claim. Id. at 934 (citing Strickland, 466 U.S.

at 697 and Pearson v. Callahan, 555 U.S. 223, 241 (2009)). 

The Illinois Appellate Court in this case correctly

cited Strickland as the governing standard and accurately

quoted from Strickland in holding that petitioner was

required to show “(1) that his counsel’s ‘representation

fell below an objective standard of reasonableness;’ and (2)

that there is a ‘reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Rule 23 Order,

People v. Wyatt, No. 1-09-3244 (Ill. App. Ct. Aug. 3, 2011),

Resp. Ans., Exh. K, at 6-7 (“Wyatt II”). The court went on

to analyze petitioner’s claim, including his argument that

he was prejudiced by his attorney’s failure to call him at

the suppression hearing because “[petitioner] and only

[petitioner] could provide testimony and evidence in support

of the claim that his statement was involuntary and should

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be suppressed.” Wyatt II at 8. The appellate court

ultimately rejected petitioner’s claim, concluding that

nothing in the record, including the affidavits petitioner

submitted in support of his post-conviction petitione,

“indicate[d] that the proceedings would have changed if

defendant would have testified” at his suppression hearing.” 

Id. at 9. 

Petitioner argues that the Illinois Appellate Court’s

decision amounts to an unreasonable application of

Strickland because its conclusion omits the “reasonable

probability” portion of the controlling standard. Indeed,

the Seventh Circuit has held that this omission “is not a

mere detail or a quibble over word-smithing,” and that a

state court decision resting on a standard that omits the

phrase is “contrary to” clearly established federal law

under § 2254(d)(1). Mosley v. Atchison, 689 F.3d 838, 850

(7th Cir. 2012) (citing Williams v. Taylor, 529 U.S. 362

(2000). The Seventh Circuit has also held, however, that

“[w]e have noted numerous times that there is no error when

a court has correctly noted the Strickland standard and then

used an incorrect shorthand version when stating its

conclusion.” Woods v. Schwartz, 589 F.3d 368, 378 n. 3 (7th

Cir. 2009). That is plainly what happened in this case. 

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Moreover, the Illinois Appellate Court’s application of

Strickland was reasonable on the record before it.

In view of the deficiency petitioner attributes to his

counsel--counsel’s refusal to allow petitioner to testify at

the suppression hearing--petitioner “must demonstrate that,

had he testified, there was both a reasonable probability

that he would have prevailed on the motion to suppress and a

reasonable probability that he would have been acquitted.” 

Pole, 570 F.3d at 943. The Illinois Appellate Court

considered petitioner’s argument that “had he been allowed

to testify, he would have clarified his emotional state

while in custody, his lack of experience with the criminal

justice system and the promises made by his interrogators,

while also providing more specificity about the amount of

time, sleep and bathroom breaks he was afforded while in

custody,” but concluded that none of the evidence in the

record rebutted the evidence of voluntariness that the State

had presented at the hearing on petitioner’s motion to

suppress. Wyatt II, at 9. Indeed, the affidavit supporting

petitioner’s post-conviction petition states only, “[i]f I

had been allowed to testify, I would of (sic) given

information/testimony on assurances of leniency and coercion

by Detectives Donald Buis, Robert McVicker, and Assistant

State’s Attorney Beth Pfeiffer, while in custody at Area Two

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police station.” Petitioner did not specify, however, what

his testimony would have been, or explain how it would have

tipped the scales in his favor at the suppression hearing. 

Whether a confession is voluntary depends on the

totality of the circumstances. Pole, 570 F.3d at 941. 

Petitioner does not dispute that the trial court treated the

factual allegations in his motion to suppress as

petitioner’s sworn statements. These allegations included

the very factors about which petitioner claims he would have

testified: his youth, his inexperience with the criminal

justice system, the length of his incarceration, and the

alleged coercion by the police and the Assistant State’s

Attorney. The Illinois Appellate Court reasonably concluded

that the generalities petitioner asserted in his postconviction affidavit were not reasonably likely to have

turned the tables at his suppression hearing. And because

petitioner has not shown a reasonable probability that he

would have prevailed on his suppression motion, he has not

established prejudice under Strickland. Pole, 570 F.3d at

943.

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

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of the denial of a constitutional right” as required by 28

U.S.C. § 2253(c) and decline to issue a certificate of

appealability. 

 ENTER ORDER:

_____________________________

 Elaine E. Bucklo

 United States District Judge

Dated: January 30, 2013

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