In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-2888

DARRYL J. SUTTON,

Petitioner-Appellee,

v.

RANDY PFISTER, Warden, Stateville Correctional Center,

Respondent-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 09 C 8035 — Sharon Johnson Coleman, Judge.

____________________

ARGUED MAY 26, 2016 — DECIDED AUGUST 24, 2016

____________________

Before WOOD, Chief Judge, and MANION and HAMILTON,

Circuit Judges.

WOOD, Chief Judge. Daryl Sutton is serving a sentence in an 

Illinois prison for aggravated criminal sexual assault. He contends, in this habeas corpus proceeding under 28 U.S.C. § 2254, 

that the evidence connecting him with that crime was obtained by the state through a conceded violation of the Fourth 

Amendment in a different case—specifically, a court order unsupported by probable cause, requiring him to furnish a 
2 No. 15-2888

blood sample for DNA testing. The district court ruled that 

the writ should issue, but we conclude that it erred in doing 

so, because the blood (and thus the DNA) would inevitably 

have been produced under a state law that provided legal authority for collecting the sample. We therefore reverse.

I

Sutton has been convicted of violent crimes in multiple 

separate prosecutions by the state of Illinois. Two of these convictions are relevant here: his 1991 conviction for attempted 

aggravated criminal sexual assault against A. Rac (the Rac 

prosecution), and his 1997 conviction for aggravated criminal 

sexual assault against P. Lally (the Lally prosecution). The 

facts relevant to this appeal (even if not the facts of those 

crimes) are largely uncontested: the state concedes that it unlawfully collected a sample of Sutton’s blood during the Rac 

prosecution and then used that blood sample in the Lally 

prosecution. Sutton’s petition relates to the Lally conviction.

In March 1991, Rac was the victim of an attempted sexual 

assault in the alleyway behind her apartment building. Sutton 

was arrested and charged with the crime. On April 3, 1991,

Sutton appeared at a preliminary hearing before Cook 

County Circuit Court Judge James F. Henry. Judge Henry 

granted the prosecutor’s request to order that Sutton submit 

a blood sample as a condition of his bond, over Sutton’s objection. But Sutton was not released on bond at that time, and 

therefore the ordered sample was never taken. 

On May 7, 1991, during a pre-trial hearing before a different judge, Judge Richard LaCien, the prosecution noted that 

the blood sample had not been taken and asked for an opportunity to “redraft” Judge Henry’s order and have Judge 
No. 15-2888 3

LaCien sign it. Judge LaCien permitted the prosecution to do 

so and signed the order over Sutton’s objection. The order 

stated: 

It is hereby ordered pursuant to chpt 110A § 413 that 

the defendant submit a blood specimen and saliva 

sample as well as head and hair (pubic) samples. The 

defendant shall be taken to Cermak Hospital as soon 

as is practicable pursuant to this order.

The statute to which he referred, Ill. Rev. Stat., ch. 110A 

¶ 413(a)(vii) (1991), allows a court to order a blood or other 

tissue sample “subject to constitutional limitations.” This order, unlike the previous one, was not conditioned on Sutton’s

release on bond. Three months later, the state took Sutton’s 

blood sample pursuant to the order and sent it to the state police lab and the FBI lab. 

At a jury trial in November 1991, Sutton was convicted on 

all counts and sentenced to ten years in prison. The prosecution presented no forensic evidence. Although an Illinois statute in effect at the time specified that any persons convicted 

of sex offenses “shall ... be required to submit samples of 

blood and saliva,” the court did not order Sutton to provide 

another sample. Ill. Rev. Stat. ch. 38, ¶ 1005-4-3(A) (1991).

On to the Lally proceedings. In 1990, Lally was the victim 

of a home invasion and sexual assault. The assault took place 

during the intruder’s break-in into the home of another person, who ultimately testified as a witness. Both the witness 

and Lally were present in the home. The intruder tied up the 

witness, sexually assaulted Lally, and stole money from both 

of them. Following the attack, Lally permitted medical personnel to assemble a rape kit. At that time, Sutton was not a 
4 No. 15-2888

suspect, and neither Lally nor the other witness was able definitively to identify any suspect from the police photos or 

lineup. The other witness initially identified someone else as 

the assailant based on a photo display, but could not identify 

that person in a subsequent lineup.

After the Rac prosecution, there was a break in the Lally 

case: the FBI lab matched Sutton’s DNA (derived from the Rac

blood sample) with physical evidence supplied by Lally. The 

witness was able to identify Sutton as the attacker, although 

Lally could not. Based on this new evidence, Sutton was 

charged for the attack.

Before trial, Sutton moved to suppress the DNA evidence

connecting him to the Lally crime on the ground that the 

blood sample had been taken in violation of the Fourth 

Amendment. At an evidentiary hearing, Sutton presented the 

transcript of the proceeding before Judge LaCien. Sutton also 

questioned John Haskins, the prosecutor responsible for postconviction proceedings in the Rac case. Haskins testified that 

Sutton’s blood had “no evidentiary value” in the Rac case, because that case did not include any “testimony about ... 

blood[,] ... semen or any fluid,” nor was any DNA testing 

done. Although a sweatshirt with bloodstains was collected 

at the scene, it was not used in the Rac case nor was any evidence related to the sweatshirt presented to Judge LaCien before he signed the order. The Lally judge responded, “I don’t 

know what evidence the State and defense had at the time 

they requested that order for the blood drawing,” but “I 

would assume that either good reasons were given to Judge 

LaCien for signing that order or no objection was made at the 

time.” 
No. 15-2888 5

The court ignored the Rac transcript, which showed exactly which reasons were given to Judge LaCien before he

signed the order. It admitted the DNA evidence, and Sutton 

was convicted of all counts in the Lally case. He was sentenced to concurrent 18-year sentences for home invasion and 

armed robbery, and a consecutive 15-year sentence for aggravated criminal sexual assault. 

Sutton’s appeals from that judgment were unsuccessful. 

The Illinois Court of Appeals rejected his argument that the 

blood sample was inadmissible. The Court of Appeals stated, 

erroneously, that Sutton failed to provide it with a transcript, 

and therefore it “presume[d] that Judge LaCien acted correctly in ordering defendant to permit the taking of his blood 

and hair and that probable cause justified the order.” In fact, 

Sutton did provide a transcript, as the state now concedes. 

The court ruled in the alternative that Haskins’s testimony 

supported probable cause because of the bloody sweatshirt. 

The Illinois Supreme Court denied leave to appeal. 

Sutton did not fare any better during state post-conviction 

review. He argued that his appellate counsel was ineffective 

because he failed to provide the transcript of the hearing before Judge LaCien to the Court of Appeals. The trial court denied his petition. The Court of Appeals acknowledged that it 

had been mistaken on direct review—Sutton did, in fact, provide the transcript—but nonetheless affirmed its prior alternate holding, stating that the “manifest weight of the evidence 

indicated that the order was based on a finding of probable 

cause.” (The Court of Appeals granted limited relief on other 

grounds not relevant here). The Illinois Supreme Court again 

denied leave to appeal.
6 No. 15-2888

Sutton then filed his petition seeking habeas corpus relief 

under 28 U.S.C. § 2254. He alleged that he received ineffective 

assistance of appellate counsel in violation of his Sixth 

Amendment rights, because his counsel did not include or 

properly cite to the transcript during direct review. Rather 

than focusing on the Sixth Amendment argument, however, 

the district court, citing a 1994 district court case, decided that 

it could “consider a properly preserved constitutional claim 

underlying a habeas petitioner’s claim of ineffective assistance of counsel.” It thus turned directly to Sutton’s underlying Fourth Amendment claim. It held that although a federal 

court cannot generally grant habeas corpus relief on the basis 

of a Fourth Amendment claim under Stone v. Powell, 428 U.S. 

465 (1976), Sutton’s situation falls within the narrow exception for cases where the petitioner did not have a full and fair 

hearing on his Fourth Amendment claim in state court. On the 

merits, it found a constitutional violation warranting the issuance of the writ. Because Sutton is currently serving a life sentence for an unrelated conviction, it stayed the writ until Sutton is no longer in custody under any other sentence. 

The district court then denied the state’s motion to alter or 

amend the judgment. In that motion, the state argued that it 

would inevitably have discovered Sutton’s DNA because of 

the state law requiring that persons convicted of certain sexual crimes provide a blood sample. The Fourth Amendment 

exclusionary rule, it said, thus did not bar admission of the 

DNA evidence in the Lally case anyway. The district court rejected that argument, and the state appeals.
No. 15-2888 7

II

A

Because the district court specified that it was not issuing 

the writ immediately, we must first confirm that appellate jurisdiction exists. (The district court had jurisdiction under 28 

U.S.C. §§ 1331, 2241, and 2254.) The district court’s order disposed of all claims; all that remains to be done is the execution 

of the judgment—issuing the writ after Sutton’s release. That 

is the type of loose end that does not destroy finality for purposes of appeal. See Budinich v. Becton Dickinson & Co., 486 

U.S. 196, 199 (1988). And in this case, because it is the state 

that brings the appeal, no certificate of appealability is required. FED. R. APP. P. 22(b)(3). Our jurisdiction is therefore secure. See 28 U.S.C. §§ 1291 and 2253.

B

Before turning to the merits, we must say a word about the 

district court’s decision to reach through Sutton’s Sixth 

Amendment ineffective-assistance-of-counsel claim to address the merits of the underlying Fourth Amendment claim. 

See generally Kimmelman v. Morrison, 477 U.S. 365 (1986) (discussing the relation between a Fourth Amendment claim and

a Sixth Amendment ineffective-assistance-of-counsel claim 

based on counsel’s litigation of the underlying Fourth 

Amendment claim). In its filings in the district court, the state 

failed to present the argument that Sutton’s Fourth Amendment claim was not properly before the district court. But see 

Powell, 428 U.S. 465. (The state has briefed Powell in this court. 

We consider it to the extent we find necessary, but the state 

lost the chance to try to nip this case in the bud on that basis.)
8 No. 15-2888

We therefore proceed on the assumption that Sutton’s Fourth 

Amendment claim was properly before the district court.

C

This brings us to the main event: Sutton’s Fourth Amendment claim. The first question is whether any relief is available to him, in light of the strictures in the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA). AEDPA authorizes collateral relief only when a petitioner is “in custody in 

violation of the Constitution or laws or treaties of the United 

States.” 28 U.S.C. § 2254(a). Where a state court has decided 

an issue on the merits, we may grant relief only if that decision 

was “contrary to, or involved an unreasonable application of 

clearly established Federal law” as determined by the Supreme Court. Id. § 2254(d)(1). For alleged Fourth Amendment 

violations, enforceable through the exclusionary rule, this already-high bar gets raised even further: relief is not available 

except in extremely narrow circumstances. See Powell, 428 

U.S. 465.

In Powell, the Supreme Court held that a federal court generally cannot grant habeas corpus relief based on a state court’s 

failure to suppress evidence collected in violation of the 

Fourth Amendment. Id. at 482. This is because the exclusionary rule is a “means of effectuating the rights secured by the 

Fourth Amendment” by deterring police misconduct, rather 

than a personal constitutional right of the defendant. See id.

at 482, 486; see also Reed v. Farley, 512 U.S. 339, 347–48 (1994)

(plurality opinion). In the case of collateral proceedings, that 

deterrent effect is so weak that it is outweighed by the harm 

of excluding probative evidence. See Powell, 428 U.S. at 486–

88, 493.
No. 15-2888 9

The Court recognized one narrow exception to the Powell

rule: a petitioner may litigate his Fourth Amendment exclusionary rule claim on collateral review if he was not “afforded 

the opportunity for full and fair consideration of his searchand-seizure claim at trial and on direct review.” Id. at 486. The 

district court relied on this exception, noting that (1) the state 

trial court in the Lally case “assume[d]” that there was probable cause for the Rac court to issue a warrant without considering any evidence; (2) on direct review, the Illinois Court 

of Appeals failed to recognize that Sutton provided the necessary transcript; and (3) although on post-conviction review 

the Illinois Court of Appeals recognized its error in not noticing the transcript on direct review, it nevertheless found that 

probable cause supported the Rac court’s order, even though

there was no evidence supporting this conclusion and ample 

evidence to the contrary.

We find it unnecessary to decide whether the facts identified by the district court suffice to bring Sutton’s case into the 

Powell exception. The writ cannot issue if there was no Fourth 

Amendment violation to begin with. The state courts found 

that there was no such violation, and so we examine that finding under AEDPA’s deferential rule.

D

The state argues that the admission of Sutton’s DNA evidence in the Lally trial did not violate the exclusionary rule 

because it would inevitably have discovered that evidence regardless of the unconstitutional search. Under the inevitable 

discovery doctrine, “[i]f the prosecution can establish by a 

preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful 

means ... then the deterrence rationale [of the exclusionary 
10 No. 15-2888

rule] has so little basis that the evidence should be received.” 

Nix v. Williams, 467 U.S. 431, 444 (1984). The state must show 

“both (1) that it had, or would have obtained, an independent, 

legal justification for conducting a search that would have led 

to the discovery of the evidence and (2) that it would have 

conducted a lawful search absent the challenged conduct.” 

United States v. Howard, 729 F.3d 655, 663 (7th Cir. 2013) (internal quotation marks omitted). “[I]nevitable discovery involves no speculative elements but focuses on the demonstrated historical facts capable of ready verification or impeachment.” Nix, 467 U.S. at 444. 

This issue is properly before us, despite the fact that the 

state first raised inevitable discovery in its motion to alter or 

amend the judgment in the district court. See FED. R. CIV. P.

59(e). Ordinarily this would be too late in the day, but here 

the district court actually considered the argument in its ruling on the Rule 59(e) motion; as a result, we can consider it on 

appeal. We review that ruling for abuse of discretion. Burritt 

v. Ditlefsen, 807 F.3d 239, 252 (7th Cir. 2015). A “district court 

by definition abuses its discretion when it makes an error of 

law.” Koon v. United States, 518 U.S. 81, 100 (1996).

The district court was skeptical that the inevitable discovery doctrine could apply to an order to draw blood. While it 

is true that the doctrine more typically is applied in situations

in which the police prematurely conduct a search before obtaining a warrant or before the search would become justified 

by an exception to the warrant requirement, we see no reason, 

and indeed AEDPA would not permit us on collateral review, 

to create a new distinction between physically entering a location and drawing blood. See, e.g., Howard, 729 F.3d at 663 

(applying doctrine when evidence found in an unlawful 
No. 15-2888 11

search would have been discovered minutes later in a lawful 

search incident to arrest); United States v. Tejada, 524 F.3d 809, 

813 (7th Cir. 2008) (applying doctrine where a search of an 

apartment incident to a lawful arrest revealed a travel bag 

that the officers unlawfully searched, but “certainly” would 

have been given a warrant to search had they applied for one).

The concept of a search applies equally to both. See Missouri 

v. McNeely, 133 S. Ct. 1552, 1556 (2013) (confirming that taking 

a blood sample is a search).

Nix v. Williams, which was the first Supreme Court decision to provide an extensive analysis of the inevitable discovery doctrine, supports this conclusion, and it is telling that it

also did not involve a straightforward search of a building or 

place. There, the police questioned a homicide suspect in violation of his Sixth Amendment rights, leading the suspect to 

reveal the location of the victim’s body. Nix, 467 U.S. at 434–

36. The Court denied habeas corpus relief because, although the 

evidence was obtained illegally, the police already had begun 

a search in the correct area and would have discovered the 

body regardless of the suspect’s statements. Id. at 448–49. The 

Court explained that the purpose of the Fourth Amendment 

exclusionary rule is to ensure that the state is not put in a better

position by virtue of its unlawful conduct; correspondingly, 

the purpose of the inevitable discovery rule is to ensure that 

the state is not put in a worse position than if the unlawful 

conduct never took place. Id. at 443–44. “[B]ecause the police 

would have obtained that evidence if no misconduct had 

taken place,” excluding it would not serve the purpose of the 

exclusionary rule. Id. at 444. This reasoning applies just as 

readily to a blood test as it does to prematurely entering a 

house or discovering evidence revealed during an unlawful 

interrogation.
12 No. 15-2888

Since there is no categorical reason why the inevitable discovery doctrine cannot apply to the Lally prosecution, we 

must determine whether the state has shown by a preponderance of the evidence that it would have obtained Sutton’s 

blood sample lawfully in the absence of the unlawful order

from the Rac case. See id. In order to meet this burden, the 

state points to an Illinois law in effect at the time that required

all persons convicted of certain sexual crimes (including those 

of which Sutton was accused) to provide a blood sample. The 

relevant statute, Ill. Rev. Stat. ch. 38, ¶ 1005-4-3(A) (1991),

stated that persons convicted of certain sexual offenses “shall 

... be required to submit blood samples and saliva to the Illinois State Police.” (The current version is codified at 730 ILCS 

5/5-4-3 (2014)). The language in the statute is mandatory, although it obviously was not followed to the letter in the Rac 

case. The state, which has the burden of demonstrating that 

the doctrine applies, has not explained why a new sample was 

not collected after Sutton’s conviction: because the state already had one, or some other reason. 

There is a presumption that the police and the courts will 

follow their routine procedures for issuing warrants. See, e.g., 

United States v. Marrocco, 578 F.3d 627, 639 (7th Cir. 2009) (presuming that police “undoubtedly would have followed routine, established steps resulting in the issuance of a warrant”); 

United States v. Buchanan, 910 F.2d 1571, 1573 (7th Cir. 1990) 

(similar). Principles of comity advise us to give the state court 

system this same presumption of regularity. The law on the 

books required the court to order Sutton to provide a blood 

sample. This is enough, in our view, to show by a preponderance of the evidence that, but for the fact the state already had 

a sample from Sutton, it would have collected a sample. (Why 
No. 15-2888 13

engage in a pointless act?) The timing of the collection of Sutton’s blood thus drops out of the case, and the DNA harvested 

from the sample would inevitably have been discovered after 

his conviction in the Rac case. The trial court in the Lally case 

therefore could have admitted that DNA evidence pursuant 

to the inevitable discovery doctrine, despite the assumed 

Fourth Amendment violation in the Rac case. (This is not the 

ground on which the state court relied, but we are not here to 

grade its opinions, if its ultimate result was reasonable.)

Thus, even if Sutton falls within the Powell exception, he is 

not entitled to habeas corpus relief. Section 2254(a) permits a 

federal court to grant the writ only when the petitioner is “in 

custody in violation of the Constitution or laws or treaties of 

the United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran,

562 U.S. 1, 5 (2010) (legal errors that do not result in the petitioner’s “custody” violating the Constitution or federal law, 

such as errors of state law, cannot be remedied through the 

writ); Hampton v. Wyant, 296 F.3d 560, 562 (7th Cir. 2002) (petitioner imprisoned based on “unlawfully seized evidence is 

not ‘in custody in violation the Constitution’” because the 

“seizure may have violated the Constitution but the custody

does not” (quoting 28 U.S.C. § 2254(a)). Here, even if the state 

violated the Fourth Amendment in the Rac case, Sutton’s custody in the Lally case is not in violation of the Constitution, 

and he is not entitled to the issuance of the writ.

III

We have proceeded on the assumption, uncontested for 

present purposes, that the Illinois trial court’s May 1991 order 

authorizing the state to take Sutton’s blood sample was unlawful because at the time it was not supported by probable 
14 No. 15-2888

cause. Nevertheless, the Lally court was entitled to admit the 

DNA evidence from that blood sample under the inevitable 

discovery doctrine. We do not reach the question whether it 

was proper for the district court to reach through Sutton’s 

Sixth Amendment ineffective-assistance-of-counsel claim to 

hear the underlying Fourth Amendment claim, nor do we decide whether this case fits within the Powell exception permitting a federal court to grant habeas corpus relief where the petitioner did not have a full and fair opportunity to litigate his 

Fourth Amendment claim on direct review. It is enough to 

hold that even if Powell permits us to reach that issue, Sutton’s 

“custody” in the Lally case is not in violation of the “Constitution ... of the United States” and his petition thus should 

have been denied. We therefore REVERSE the district court’s 

order granting Sutton’s petition for a writ of habeas corpus.