-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

 UNITED STATES ex rel. ALEX GILBERT )

)

Plaintiff, )

) No. 02-C-2388

v. )

) HONORABLE DAVID H. COAR

 GEORGE WELBORN )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Petitioner Alex Gilbert (“Petitioner” or “Gilbert”) filed a petition for habeas corpus in

this Court pursuant to 28 U.S.C. § 2254. This Court denied the petition. On July 14, 2005,

Petitioner filed a timely Notice of Appeal. Pursuant to Federal Rule of Appellate Procedure

22(b) and Circuit Rule 22.1, this Court must issue a certificate of appealability or state the

reasons why such a certificate should not issue before an appeal can be taken. For the reasons

stated in this opinion, the Certificate of Appealability is denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner plead guilty to first-degree murder based on a theory of accountability. He

received a thirty year prison sentence. On appeal of the trial court’s denial of his post-conviction

petition, the Illinois Appellate Court upheld the trial court’s dismissal, finding that Petitioner’s

claims of involuntary guilty plea, ineffective assistance of counsel, and involuntary confession

were not supported by the record. People v. Gilbert, No. 99-3363, slip op. (Ill. App. Ct. Oct. 30,

2001). When his efforts for collateral relief in state court failed, he filed a timely habeas corpus

petition in this Court. This Court appointed counsel to represent Petitioner in his habeas
-2-

proceeding. Petitioner’s habeas claims were based on involuntary confession and ineffective

assistance of counsel. This Court denied his petition on June 16, 2005. See United States ex rel.

Gilbert v. Welborn, No. 02-C-2388, slip op. (N.D. Ill. June 16, 2005).

Petitioner, acting through his appointed counsel, now seeks a certificate of appealability

(“COA”). His Notice of Appeal does not specify the grounds on which he appeals, so this Court

will proceed by assuming that he is reasserting the grounds contained in his habeas petition.

Thus, Petitioner seeks a COA on claims of involuntary confession and ineffective assistance of

counsel in his state court proceedings.

II. STANDARD OF REVIEW

A petitioner must obtain a certificate of appealability (“COA”) to appeal a final order

denying a habeas corpus petition. 28 U.S.C. § 2253(c)(1)(A). A district court may issue a COA

“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). The Supreme Court set out how a district court should evaluate a request

for a COA in Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court has denied

a petitioner's constitutional claims on the merits, “[t]he petitioner must demonstrate that

reasonable jurists would find the district court's assessment of the constitutional claims debatable

or wrong.” Id. at 484. When a district court has denied a petitioner’s constitutional claims on

procedural grounds “without reaching the prisoner’s underlying constitutional claim,” a COA

should issue if jurists of reason could debate whether the petition states a valid claim of the

denial of a constitutional right and whether the district court was correct in its procedural ruling. 

Id. at 478.
-3-

The Supreme Court has held that a petitioner does not need to demonstrate that he will

prevail in order to receive a COA. See Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) (“[A]

COA does not require a showing that the appeal will succeed.”). Rather, a petitioner simply

must show that the reasonable jurists might disagree with the Court’s decision. “[A] claim can

be debatable even though every jurist of reason might agree . . .that petitioner will not prevail.”

Id. 537 U.S. at 338.

III. INVOLUNTARY CONFESSION

Petitioner seeks a COA on his involuntary confession claim. This Court held that the

state court applied the correct rule to Petitioner’s involuntary confession claim. In determining

whether the state court was also reasonable, this Court noted that it found the facts of Petitioner’s

police station interrogation alarming and was sympathetic to his argument. Ultimately, however,

this Court held that United States Supreme Court case law indicating that the absence of a

friendly adult is insufficient to require suppression of a juvenile confession, and Seventh Circuit

precedent holding that the absence of an interested adult during questioning “cannot be

dispositive” demonstrated that the state court was reasonable. Federal court review of habeas

petitions from state court convictions has been increasingly limited and comprises largely a

procedural review of the state court’s methodology. Habeas petitions are not avenues to relitigate

all the underlying issues of the original conviction. The standard of review for a COA is even

more restricted. The question at this juncture is limited to whether reasonable jurists would find

this Court’s ruling open to debate. Because the state court both identified and applied the correct

law as articulated by the United States Supreme Court and the Seventh Circuit, this Court does

not believe that jurists of reason would find its decision to deny habeas relief to Petitioner on his
-4-

involuntary confession claim debatable or wrong. Consequently, Petitioner’s request for a COA

on his involuntary confession claim is denied.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner seeks a COA on his ineffective assistance of counsel claim. This Court denied

Petitioner’s habeas petition on ineffective assistance of counsel. Although this Court found that

the state court applied a noncustomary standard of review, this was not “outside the boundaries

of permissible opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002). In addition,

Petitioner failed to allege, either at the state court level or in his habeas petition to this Court,

“facts showing that there was a reasonable probability that he would have gone to trial rather

than enter a guilty plea.” United States ex rel. Gilbert v. Welborn, No. 02-C-2388, slip op. at 13

(N.D. Ill. June 16, 2005). In addition, the state appellate court specifically referenced eyewitness

identification evidence in its discussion of Petitioner’s confession and found that such evidence

provided sufficient factual support for the plea. This Court found that Petitioner failed to

establish that the state court was unreasonable in its application of the law. 

In order to receive a COA, however, reasonable jurists must be able to find this Court’s

decision debatable or wrong. Reasonable jurists might find that the state court’s application of a

straightforward, rather than modified Strickland standard, was not only incorrect but

unreasonable. The straightforward Strickland standard applied by the state court required

Petitioner to show that counsel’s ineffective assistance was so prejudicial that there was a

reasonable probability that it changed the outcome of the case. Strickland v. Washington, 466

U.S. 668, 687-88 (1984). By contrast, the modified Strickland standard required the Petitioner to

show that the counsel’s representation fell below an objective standard of reasonableness; and
-5-

that but for this deficiency, there is a reasonable probability that the petitioner would have gone

to trial instead of pleading guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Acevedo-Carmona v.

Walter, 170 F. Supp. 2d 820, 824 (N.D. Ill. 2001). However, the fact that Petitioner simply did

not produce evidence supporting his claim that he would have gone to trial rather than plead

guilty remains fatal to Petitioner’s ineffective assistance of counsel claim. This Court finds that

reasonable jurists would not find its denial of this claim debatable or wrong. Consequently,

Petitioner’s request for a COA on his ineffective assistance of counsel claim is denied.

Conclusion

For the reasons set forth above, Petitioner’s request for a certificate of appealability is

denied.

Enter:

/s/ David H. Coar

_____________________________________

David H. Coar

United States District Judge

Dated: August 23, 2005