IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

United States of America ex rel. ) 

KENNETH CEBERTOWICZ, ) 

 ) 

 Petitioner, ) 

 ) Case No. 00-cv-7289 

 v. ) 

 ) Judge Robert M. Dow, Jr. 

BRADLEY J. ROBERT, Warden ) 

of Centralia Correctional Center, ) 

 ) 

 Respondent. ) 

MEMORANDUM OPINION AND ORDER 

For the reasons stated below, the Court respectfully denies Petitioner’s request [41] for a 

certificate of appealability. 

I. Background 

On January 30, 2009, this Court entered a 27-page memorandum opinion and order [38] 

denying the petition for writ of habeas corpus filed by Petitioner. The background of this case is 

set forth in considerable detail in that document. Petitioner now seeks a certificate of 

appealability [41]. In support of his request, Petitioner presents no particularized arguments as to 

why a certificate of appealability should issue as to any of the fifteen claims raised in his 

petition. Rather, Petitioner simply states his general belief that “there are issues that merit an 

appeal and that reasonable jurists might come to a different conclusion.” 

II. Analysis 

 A. Procedurally Defaulted Claims 

In his habeas petition, Petitioner raised fifteen separate claims, the nature of which are set 

forth in detail in the Court’s January 30 memorandum opinion and order. The Court determined 
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that six of those claims (1-5 and 14) were procedurally defaulted (Mem. Op. at 14-20). This 

Court has discretion to issue a certificate of appealability “if the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). The Supreme Court has 

held that when a district court denies a habeas petition on procedural grounds without reaching 

the prisoner’s underlying constitutional claims, “a COA should issue when the prisoner shows, at 

least, that jurists of reason would find it debatable whether the petition states a valid claim of the 

denial of a constitutional right and that jurists of reason would find it debatable whether the 

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

Thus, “[d]etermining whether a COA should issue where the petition was dismissed on 

procedural grounds has two components, one directed at the underlying constitutional claims and 

one directed at the district court’s procedural holding.” Id. 

In its prior memorandum opinion and order, the Court concluded that Petitioner failed to 

fairly present his first and fifth claims at all in state court, that Petitioner failed to present his 

second, third, and fourth claims in his petition for leave to appeal to the Illinois Supreme Court, 

and that the effect of those procedural defaults doomed Petitioner’s fourteenth claim, which was 

premised on the cumulative effect of all of the alleged trial errors (including those asserted in 

claims 1-5). The Court does not believe that reasonable jurists could disagree with the 

procedural holdings as to claims 1-4 and 14. And although the Court observed that the 

procedural default as to claim 5 was a “close call” (id. at 17), the Court also explained in detail 

why, even if that claim were not procedurally defaulted, it would fail on the merits under the 

Strickland standard for ineffective assistance of counsel (id. at 18-19 n.6). Thus, even if the 

Court’s procedural holding as to claim 5 could be debated, the request for a COA on Petitioner’s 

fifth claim founders on the separate constitutional component. 
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B. Remaining Claims 

Petitioner’s nine remaining claims alleged constitutionally ineffective assistance of trial 

and appellate counsel. In its January 30 memorandum opinion and order (at 20-27), the Court set 

forth in detail the reasons why it concluded that none of Petitioner’s ineffective assistance claims 

merited habeas relief. As noted above, the Court may grant a request for a certificate of 

appealability if the applicant makes a “substantial showing of the denial of a constitutional 

right.” Pursuant to 28 U.S.C. § 2253(c)(2). The Supreme Court has explained that an applicant 

makes a “substantial showing” where “reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved in a different manner or that the issues 

presented were ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 

529 U.S. 473, 484 (2000); see also Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 

2008). While a COA determination thus “requires an overview of the claims in the habeas 

petition and a general assessment of their merits,” it does not entail “full consideration of the 

merits” or “a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S. 322, 336-

37 (2003). 

Applying that standard, the Court concludes that a certificate of appealability should not 

issue as to any of Petitioner’s ineffective assistance claims. Petitioner’s argument that he 

received ineffective assistance because counsel failed to persuade the trial and appellate courts to 

vacate one of Petitioner’s two murder convictions (claim 6) is not debatable or deserving of 

encouragement to proceed further because the courts’ merger of the two convictions reflected 

proper Illinois practice. Counsel’s failure to challenge the Illinois first degree and second degree 

murder statutes (claims 7 and 12) cannot likewise constitute ineffective assistance because both 

of those statutes previously had withstood constitutional challenges. 
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Several of Petitioner’s ineffective assistance claims plainly fall short of the “debatable” 

threshold in view of the findings of the state court. To begin with, the state trial court 

characterized trial counsel’s presentation of the issues and defenses to the jury (claim 8) as 

reflecting “probably his most intelligent choice.” The trial court also found that Petitioner was 

fully informed when he decided not to accept the State’s offer of a plea deal (claim 9) and that 

the suppression of Petitioner’s pre-trial statement (claim 10) was denied despite counsel’s 

arguments for suppression. The trial court further found no evidence that a prejudicial picture 

(claim 11) was shown to the jury, as Petitioner alleged. 

In addition, the fact that, at sentencing, the trial court relied on evidence outside charges 

in indictment and proven at trial (claim 13) did not constitute ineffective assistance, for none of 

the factors on which the court relied was improperly considered. Finally, the advice of counsel 

to raise only one issue in a petition for leave to appeal to the Illinois Supreme Court (claim 15) 

was not constitutionally ineffective for all of the reasons stated in the Court’s prior memorandum 

opinion and order (at 26-27). 

In sum, the Court is mindful that “[m]any prisoners who seem likely to lose in the court 

of appeals nonetheless are entitled to certificates of appealability under the statutory standard; 

meritorious appeals are a subset of those in which a certificate should issue.” Thomas v. United 

States, 328 F.3d 305, 308 (7th Cir. 2003). Nevertheless, for all of the reasons stated above and in 

the Court’s prior memorandum opinion and order, the Court cannot conclude that “reasonable 

jurists could debate whether * * * the petition should have been resolved in a different manner” 

or that “the issues presented were ‘adequate to deserve encouragement to proceed further.’” 

Slack, 529 U.S. at 484; see also Arredondo, 542 F.3d at 1165. 
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III. Conclusion 

For the reasons stated above, the Court respectfully denies Petitioner’s request [41] for a 

certificate of appealability. 

 

Dated: April 6, 2009 __________________________________ 

 Robert M. Dow, Jr. 

 United States District Judge