IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

TONY MARSHALL (R10987), ) 

 ) 

 Petitioner, ) Case No. 20 C 4420 

 ) 

 v. ) Judge Sharon Johnson Coleman 

 ) 

GREGG SCOTT,1 Warden, Jacksonville ) 

Correctional Center, ) 

 ) 

 Respondent. ) 

MEMORANDUM OPINION AND ORDER

 In July 2020, pro se petitioner Tony Marshall filed a petition for a writ of habeas corpus 

under 28 U.S.C. § 2254(d)(1). Before the Court is Respondent’s motion to dismiss without prejudice 

due to Marshall’s failure to exhaust his state court remedies. For the reasons discussed below, the 

Court grants Respondent’s motion.

Background 

When considering habeas petitions, federal courts presume that the factual findings made by 

the last state court to decide the case on the merits are correct unless the habeas petitioner rebuts 

those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Lentz v. Kennedy, 967 

F.3d 675, 678 (7th Cir. 2020). Where Marshall has not provided clear and convincing evidence to 

rebut this presumption, the following factual background is based on the Illinois Appellate Court’s 

decision on direct appeal.

Following a bench trial in January 2015, Marshall was convicted of being an armed habitual 

criminal under 720 ILCS 5/24–1.7(a). In June 2015, the circuit court judge sentenced him as a Class 

1 Because Gregg Scott is the Warden of Jacksonville Correction Center where Marshall is incarcerated, the 

Court substitutes Scott as the Respondent under Federal Rule of Civil Procedure 25(d). 

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X offender to nine years in prison. On direct appeal, Marshall argued that the armed habitual 

criminal statute is facially unconstitutional and that his sentence was excessive. On March 14, 2018, 

the Illinois Appellate Court affirmed his conviction and sentence. In his petition for leave to appeal 

(“PLA”) to the Illinois Supreme Court, Marshall renewed his challenge to the constitutionally of the 

armed habitual criminal statute. The Illinois Supreme Court denied Marshall’s PLA on May 30, 

2018. 

While his direct appeal was pending, in January 2017, Marshall filed a petition for relief from 

judgment under 735 ILCS 5/2-1401 in the circuit court. In his initial and amended petitions, 

Marshall argued that: (1) his armed habitual criminal conviction was void because it was based on an 

unconstitutional aggravated unlawful use of a weapon conviction; (2) he was arrested in violation of 

the Fourth Amendment; and (3) the State committed misconduct before the grand jury and misled 

the grand jury with false testimony. The circuit court judge denied the petition. On appeal, 

Marshall’s counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 

S.Ct. 1990, 95 L.Ed.2d 539 (1987), after which the Illinois Appellate Court concluded that there was 

no issue of arguable merit, granted counsel’s motion, and affirmed the circuit court’s judgment. 

Marshall then brought his Fourth Amendment and void judgment claims in his PLA that the Illinois 

Supreme Court denied on May 27, 2020.

 In the interim, in March 2018, Marshall filed a post-conviction petition pursuant to the 

Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1, et seq., arguing: (1) he is actually innocent, 

(2) trial counsel was constitutionally ineffective; (3) counsel on direct appeal was constitutionally 

ineffective; (4) the State withheld evidence in violation of Brady v. Maryland; and (5) the State 

presented the perjured testimony of a police officer. To date, Marshall’s post-conviction petition 

remains pending in the circuit court. 

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 Turning to his pro se habeas petition and construing it liberally, Taylor v. JPMorgan Chase 

Bank, 958 F.3d 556, 562 (7th Cir. 2020), Marshall brings the following claims: (1) the circuit court 

and his trial counsel failed to advise him of the charges against him; (2) the police lacked probable 

cause under the Fourth Amendment to arrest him; (3) the circuit court failed to follow the 

appropriate rules in relation to his petition for relief of judgment; (4) trial counsel was 

constitutionally ineffective; (5) counsel on direct appeal was constitutionally ineffective; and (6) 

counsel on appeal from the denial of the petition for relief from judgment was constitutionally 

ineffective. 

Legal Standard 

“[A] state prisoner must exhaust his remedies in state court before seeking relief in federal 

court.” Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018). “Inherent in the habeas petitioner’s 

obligation to exhaust his state court remedies before seeking relief in habeas corpus, is the duty to 

fairly present his federal claims to the state courts.” King v. Pfister, 834 F.3d 808, 815 (7th Cir. 2016) 

(citation omitted). “A federal court will not hear a state prisoner’s habeas claim unless the prisoner 

has first exhausted his state remedies by presenting the claim to the state courts for one full round of 

review.” Crutchfield v. Dennison, 910 F.3d 968, 972 (7th Cir. 2018).

Discussion

Non-Cognizable Habeas Claims 

Before addressing Respondent’s exhaustion arguments, the Court turns to Marshall’s claims 

that are not cognizable on habeas review. The federal habeas statute “permits persons in state 

custody to apply for habeas relief on the ground that their custody violates the Constitution or laws 

of the United States.” Conroy v. Thompson, 929 F.3d 818, 819 (7th Cir. 2019); see also 28 U.S.C. § 

2254(a). Thus, to obtain federal habeas relief under § 2254(d)(1), “the state court’s decision must be 

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an unreasonable application of federal law—not a state court’s resolution of a state law issue.” 

Kimbrough v. Neal, 941 F.3d 879, 882 (7th Cir. 2019). Accordingly, Marshall’s habeas claim based on 

the circuit court failing to follow the rules of Illinois state statute 735 ILCS 5/2-1401 is thus not 

cognizable on habeas review. See Wilson v. Corcoran, 562 U.S. 1, 5, 131 S.Ct. 13, 178 L.Ed.2d 276 

(2010) (“it is only noncompliance with federal law that renders a State’s criminal judgment 

susceptible to collateral attack in the federal courts.”). In fact, in his response brief, Marshall agrees 

this claim should be dismissed.

Marshall’s habeas claim that his counsel on appeal from the denial of his petition for relief 

from judgment under 735 ILCS 5/2-1401 fares no better because the “ineffectiveness or 

incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be 

a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i); see also Martinez 

v. Ryan, 566 U.S. 1, 17, 132 S.Ct. 1309, 1320, 182 L.Ed.2d 272 (2012) (“§ 2254(i) precludes 

[petitioner] from relying on the ineffectiveness of his postconviction attorney as a ‘ground for 

relief.’”). Marshall’s ineffective assistance claim based on his post-conviction counsel is untenable. 

 Next, Marshall’s claim that police lacked probable cause under the Fourth Amendment to 

arrest him is barred by Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). More 

specifically, the Supreme Court in Stone held that when a “State has provided an opportunity for full 

and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state 

prisoner be granted federal habeas relief on the ground that evidence obtained in an unconstitutional 

search and seizure was introduced at the trial.” Id. at 482. Here, the record reflects that Marshall 

had a full and fair opportunity in state court to bring his Fourth Amendment claim – he brought this 

claim in his petition for relief from judgment, on appeal, and in his PLA to the Illinois Supreme 

Court. 

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Procedural Default 

As to Marshall’s habeas claim that he was not properly informed of the charges against him, 

Marshall points out that raised this claim to the Illinois Appellate Court in response to his counsel’s 

Finley motion. Marshall, however, did not bring this claim in his PLA to the Illinois Supreme Court. 

Marshall has thus procedurally defaulted this claim because he did not exhaust it through one full 

round of review and complete exhaustion is no longer available. O’Sullivan v. Boerckel, 526 U.S. 838, 

848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). 

 Failure to Exhaust 

Marshall has two remaining claims that are cognizable on habeas review, namely, his 

ineffective assistance of trial and appellate counsel claims. Marshall concedes that he has not 

exhausted these two claims because his post-conviction petition is pending in state court. Because 

these remaining, cognizable claims are unexhausted, the Court grants Respondent’s motion. Once 

Marshall’s post-conviction proceedings have concluded, he may file an amended habeas petition 

with these two ineffective assistance of counsel claims. 

Conclusion

 For these reasons, the Court grants Respondent’s motion to dismiss Marshall’s petitioner’s 

petition for a writ of habeas corpus without prejudice [9]. Civil case terminated. 

IT IS SO ORDERED.

DATE: 11/6/2020

 Entered _____________________________ 

 SHARON JOHNSON COLEMAN 

 United States District Court Judge 

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