610 F.3d 404 (7th Cir. 2010), 09-1627, Ebert v. Gaetz

Docket Nº:09-1627.
Citation:610 F.3d 404
Opinion Judge:TINDER, Circuit Judge.
Party Name:John EBERT, Petitioner-Appellant, v. Donald GAETZ, Warden,[*] Respondent-Appellee.
Attorney:Carl P. Clavelli, Attorney (argued), Chicago, IL, for Petitioner-Appellant. Michael R. Blankenheim, Attorney (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
Judge Panel:Before POSNER, ROVNER, and TINDER, Circuit Judges.
Case Date:June 23, 2010
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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610 F.3d 404 (7th Cir. 2010)

John EBERT, Petitioner-Appellant,


Donald GAETZ, Warden,[*] Respondent-Appellee.

No. 09-1627.

United States Court of Appeals, Seventh Circuit.

June 23, 2010

Argued March 30, 2010.

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Carl P. Clavelli, Attorney (argued), Chicago, IL, for Petitioner-Appellant.

Michael R. Blankenheim, Attorney (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before POSNER, ROVNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

A jury in Cook County, Illinois, convicted John Ebert of murder and armed robbery. On direct appeal, the Illinois Appellate Court overturned his convictions after concluding that he was denied the effective assistance of counsel. Ebert was tried again, and the second jury also convicted him. Ebert again challenged his conviction on ineffective assistance grounds, this time alleging that his counsel erred in failing to refile a previously unsuccessful motion to quash his arrest and suppress an inculpatory statement he gave. The appellate court rejected Ebert's ineffective assistance of counsel argument and affirmed his convictions; the Illinois Supreme Court denied leave to appeal. After exhausting his state court postconviction remedies, Ebert sought a writ of habeas corpus from the federal courts. The district court denied his petition but granted a certificate of appealability on the issue of ineffective assistance of counsel with respect to the Fourth Amendment motions. We now affirm.

I. Background

A. Factual Background

On February 29, 1992, an elderly Chicago man, Frank Svec, attended a neighborhood Mardi Gras festival. Off-duty policemen saw him there with his downstairs neighbor, Sharon Brasher; Sharon's twelve-year-old daughter, Michelle; Sharon's live-in boyfriend, James Maynard; and Robert English, a friend of Sharon and Maynard's who had recently moved into an extra bedroom in the apartment Svec shared with another elderly man, Albert Jevorutsky. At the festival, Svec paid

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for everyone's food and drinks with money from his recently cashed retirement check.

The group left the festival sometime between 10:30 p.m. and 11:30 p.m. Sharon's fourteen-year-old son, Michael, observed that Sharon was " kind of drunk" when she and Michelle returned to the converted tavern below Svec and Jevorutsky's apartment that the Brasher family was temporarily calling home. Around 2:00 a.m., by Michael's estimation, he and Michelle were awakened when Maynard and English knocked on the front door of the tavern/residence. Michelle let them in, and Michael saw them attempting to open a door to some stairs that led from the tavern to the upstairs apartment shared by Svec, Jevorutsky, and English. (English, who had moved in just a few days earlier and had not yet paid his first month's rent in full, did not have his own key to the upstairs apartment.) Michael testified that he did not see whether English and Maynard got the door open, though when the police later examined the door they found it unlocked.

Sometime between 2:30 a.m. and 3:00 a.m., according to Sharon, who reportedly looked at a large illuminated clock when she awoke, Maynard reentered the downstairs tavern. Maynard was covered with blood and told Sharon that he had killed two people and " liked it." He changed out of his bloody jean jacket and cowboy boots, threw about $300 on the floor, and, after arguing with Sharon, left the tavern with her. When Sharon and Maynard got outside, they saw petitioner Ebert standing there yelling " Franco," a name he used to refer to Svec. This was not unusual; Ebert often yelled for Svec to let him in so he could watch television. Ebert and Maynard decided to go get some drinks elsewhere, and Sharon went back inside the tavern to go to sleep.

In the morning, Sharon gave Michael $50 from the $300 Maynard had brought home so he could buy some shoes. She told Michael not to ask where the money had come from, and instructed him to throw away a bag of garbage that contained Maynard's bloody boots. She also washed Maynard's bloody clothes. (Sharon later pleaded guilty to concealing a homicide, and told the jury as much at Ebert's second trial.)

Later that day, March 1, 1992, during the afternoon, the police found Svec and his roommate Jevorutsky dead in their apartment. Both had been repeatedly stabbed and beaten, and Jevorutsky's throat had been slit. The men's rooms were ransacked and there was blood all over the floors and walls. The police found two knives beneath Jevorutsky's body and one near the foot of his bed. They did not find any knives or weapons near Svec's body, nor were they able to recover any fingerprints from his bedroom. The medical examiner concluded that Svec and Jevorutsky had died from their stab wounds, but she did not determine the precise time of death. The bedroom and belongings of the apartment's newest inhabitant, English, were undisturbed.

The police questioned various people throughout the neighborhood about the murders but did not immediately make any arrests. On April 23, 1992, Delores Esparza, the owner of a building down the street that Maynard and the Brashers moved into in mid-March, came forward and told the police that she had overheard a conversation between English, Maynard, Sharon Brasher, and petitioner Ebert. She reported that she had seen the foursome enter the Brashers' basement apartment and then heard three male voices talking and laughing about how they had robbed and murdered two old men, whom

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they said " bled like stuffed pigs." After obtaining this information from Esparza, the police re-questioned Michael and Michelle Brasher. On the afternoon of May 1, 1992, Michael told them about the mysterious $50 he received, and about Sharon's instructions to dispose of Maynard's bloody boots. Michael also reported that Maynard-his mother's boyfriend-had told him in confidence that Ebert was one of the three people involved in the stabbings of Svec and Jevorutsky. Armed with this information, the police went looking for Ebert.

Ebert learned from the owner of a local bar he frequented, Jeannette's Place, that the police were looking for him that same evening. He called the police, and when they came to Jeannette's Place, he went with them voluntarily. The trial court nonetheless concluded that Ebert was " in custody" because he was not free to leave after he agreed to accompany the officers to a nearby police station. After Ebert spent about an hour alone in an interview room at the station, some officers drove him to a different station to get his palm print, returned him to the original station, and placed him in another interview room after explaining that he needed to wait for his palm print to " clear." Ebert spent the night and a good part of the next day in the interview room alone. On May 2, 1992, an assistant state's attorney and a detective came in to interview him, and at 5:45 p.m. he gave a statement implicating himself, English, and Maynard in the robbery and murders.

In his statement, Ebert explained that on March 1, 1992, he had been outside Svec's apartment at about 5:00 a.m. He said that he had yelled upstairs and English let him in to watch television; Svec and Jevorutsky were asleep in their rooms. A short while later, Maynard yelled upstairs. Ebert and English let him in, at which point Maynard said he needed some money and proposed that the men rob Svec. Ebert agreed that they should rob Svec and went into Svec's bedroom to start looking for money. Svec woke up and ran into the apartment's common living room. Maynard was waiting there and began to hit, punch, and kick Svec, while Ebert, accompanied by English, returned to Svec's room to continue the search for money. English found some coins, and Ebert found a drawer full of knives. Ebert showed Maynard the knives, and Maynard took one and went to Jevorutsky's room with English. Ebert continued searching Svec's room and eventually found $900 in cash, which the trio divided evenly. Ebert then suggested that they should break the lock on the front door so that the robbery would look like a forced entry. English instructed Ebert to dispose of a white plastic bag containing knives, a task he carried out on his way to reconvene with the others at White Castle later that morning. The police reported that the lock on Jevorutsky's bedroom door was broken, and Sharon testified that English retrieved a pillowcase full of coins from a nearby Taco Bell a few days after the murders.

B. Procedural Background

The state charged Ebert, English, and Maynard with armed robbery and murder. Before his trial, Ebert moved to quash his arrest on the grounds that the police lacked probable cause to arrest him, and to suppress his confession as fruit of the poisonous tree. See United States v. Swift, 220 F.3d 502, 507 (7th Cir.2000) (" Evidence which is obtained was the result of an illegal arrest is fruit of the poisonous tree and it must be excluded unless the government can show that it was obtained as a result not of the illegality, but rather by means sufficiently distinguishable to be purged of the primary taint." ). English

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made a similar motion, and the trial court held a joint hearing at which both Ebert and English testified. (Ebert and English were tried separately. English was acquitted after a bench trial.) The trial court also heard testimony from two police detectives who had worked on the case. The first detective provided hearsay testimony about Esparza's statement-he relayed that another officer told him what Esparza had said. This testimony was largely corroborated by the nonhearsay testimony of the second detective, who had actually interviewed Esparza. The second detective also testified about Michael's statements. He admitted on cross-examination that Michael's statements had not been completely consistent throughout the investigation, but...

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