In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1627
JOHN E BERT,
Petitioner-Appellant,
v.
D ONALD G AETZ, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03 C 1553—Joan Humphrey Lefkow, Judge.
A RGUED M ARCH 30, 2010—D ECIDED JUNE 23, 2010
Before P OSNER, R OVNER, and T INDER, Circuit Judges.
T INDER, Circuit Judge. A jury in Cook County, Illinois,
convicted John Ebert of murder and armed robbery. On
direct appeal, the Illinois Appellate Court overturned
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Donald Gaetz, the current warden of the Menard Correctional
Center, is automatically substituted for former warden
Donald A. Hulick.
2 No. 09-1627
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 con-
victions; 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 neigh-
bor, 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 apart-
ment Svec shared with another elderly man, Albert
Jevorutsky. At the festival, Svec paid for everyone’s
food and drinks with money from his recently cashed
retirement check.
No. 09-1627 3
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 down-
stairs 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.
4 No. 09-1627
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 im-
mediately 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
No. 09-1627 5
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 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 boy-
friend—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 fre-
quented, 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 inter-
view room alone. On May 2, 1992, an assistant state’s
attorney and a detective came in to interview him, and
6 No. 09-1627
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 apart-
ment’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 con-
tinued searching Svec’s room and eventually found $900
in cash, which the trio divided evenly. Ebert then sug-
gested 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.
No. 09-1627 7
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 confes-
sion 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 distin-
guishable to be purged of the primary taint.”). English
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 state-
ments. He admitted on cross-examination that Michael’s
statements had not been completely consistent through-
out the investigation, but Ebert’s attorney did not
pursue the matter beyond eliciting that admission.
The trial court denied Ebert’s motion. (It also denied
English’s.) It found that by the time Ebert was under
arrest on May 1, 1992, the police had Esparza’s, Michael’s,
8 No. 09-1627
and Michelle’s statements, which it concluded provided
adequate probable cause to support the arrest. It had
no need to make a finding as to Ebert’s poisonous tree
claim.
Ebert proceeded to a jury trial. At Ebert’s trial, the
assistant state’s attorney who obtained his inculpatory
statement read it to the jury, and Sharon Brasher
testified for the state. The jury convicted Ebert of armed
robbery and murder, but Ebert got the convictions
reversed on ineffective assistance of counsel grounds.
His counsel had asked the judge in open court, on the
second day of trial, for permission to amend Ebert’s
answer to include an alibi defense. The defense that
Ebert’s counsel had already begun presenting to the
jury, compulsion, was wholly inconsistent with an alibi
defense (in addition to being legally unavailable to
refute murder charges). Indeed, when counsel asked to
add the alibi defense, he had already told the jury that
Ebert had been present at the crime scene and was “com-
pelled” to participate in the criminal acts because he
was afraid Maynard would kill him if he didn’t. The trial
court allowed the amendment over the state’s objection,
and Ebert’s counsel thereafter presented a single-
witness alibi defense.
The appellate court determined that Ebert’s counsel’s
trial preparation was “questionable” and found the mid-
trial change of tactics, precipitated by Sharon Brasher’s
testimony that the murders happened sometime before
3:00 a.m., “objectively unreasonable.” It explicitly criticized
counsel’s apparent failure to question the Brashers about
No. 09-1627 9
the timeline of the crime. The appellate court also con-
cluded that Ebert had been prejudiced by his counsel’s
actions. It stated that the “evidence against defendant at
trial was not so overwhelming as to render counsel’s
deficient performance innocuous,” and noted specifically
that “no evidence of Michael’s statements regarding
Maynard’s implication of the defendant or Esparza’s
statements concerning the conversation in the basement
apartment were introduced at trial.”
Ebert also argued to the appellate court that his motion
to quash and suppress should have been granted. The
appellate court articulated the familiar “totality of the
circumstances” probable cause standard, see Illinois v.
Gates, 462 U.S. 213, 231 (1983), and proceeded to
scrutinize the “essentially two pieces of information
which the state argued established probable cause to
arrest” Ebert: the statements from Michael Brasher and
Delores Esparza. The appellate court noted that probable
cause to arrest can rest upon information that would not
be admissible at trial, such as hearsay, if the information
is supported by some indicia of reliability. The appel-
late court found such indicia of reliability in Michael’s
statements, and noted that the police also had Esparza’s
statement when they arrested Ebert. The court concluded
that Esparza’s statement, “when viewed in combination
with the other information known to police, supports,
at least minimally, a reasonable belief that the defendant
was involved in the murder,” and further concluded
that the trial court’s probable cause finding was not
“manifestly erroneous.” The Illinois Supreme Court de-
clined to grant Ebert leave to appeal the probable cause
issue.
10 No. 09-1627
Ebert went to trial again in 1998. His new counsel did not
refile or otherwise seek to relitigate Ebert’s motion to
quash and suppress. He did, however, present a better-
developed alibi defense: he found three unrelated wit-
nesses who all testified that Ebert had been at Jeannette’s
Place from about 10:00 p.m. until about 3:45 a.m. on
the night of the murders. The exculpatory timeline
posited by Ebert’s witnesses dovetailed with that
proposed by Sharon Brasher, who again testified that
Maynard returned home covered in blood sometime
between 2:30 and 3:00 a.m, and that of Michael Brasher,
who testified that Maynard and English tried to get
upstairs at around 2:00 a.m. (It was also consistent with
Ebert’s inculpatory statement, however, which was
again read to the jury.) Ebert’s counsel highlighted the
dearth of physical evidence against Ebert—the police
had been unable to match Ebert’s finger or palmprints
to the few prints found at the crime scene—and drew the
jury’s attention to discrepancies between Ebert’s state-
ment and the other evidence. He also called Ebert’s sister
to testify that she frequently gave him money in an ap-
parent attempt to undermine any motive Ebert might
have had to commit robbery. The jury nevertheless
found Ebert guilty of armed robbery and murder, and
the court, as required by statute, sentenced him to
natural life imprisonment, to be served concurrently with
a thirty-year term for the robbery.
Ebert’s counsel filed a post-trial motion for a new trial in
which he accused himself of providing ineffective assis-
tance because he failed to relitigate Ebert’s motion to
quash and suppress. Counsel alleged that he had in his
No. 09-1627 11
possession but did not take any action with respect to
two statements purportedly made by Delores Esparza
soon after the hearing on Ebert’s motion to quash and
suppress.1 In the first statement, which was hand-
written but signed by Esparza and an assistant public
defender, Esparza claimed that the conversation she
had overheard involved Ebert, Maynard, Sharon Brasher,
and, instead of English, Michael Brasher. She noted
that she had confirmed the participants’ identities with
Sharon. Esparza also changed the time at which she
heard the conversation, from the afternoon to about
4:00 a.m., but she maintained that the conversation con-
tained a statement about pigs bleeding when their
throats are cut. The second statement Ebert’s counsel
attributed to Esparza was an unsigned typed memorial
of an unidentified person’s “interview with Delores
Esparza on Monday, March 23, 1993.” In this statement,
which was riddled with typographical errors and misspel-
lings, Esparza again placed the conversation around 4:00
or 4:30 a.m., and again stated that the four participants
were Ebert, Maynard, and Sharon and Michael Brasher.
She further stated that she heard discussion about pigs’
1
It is not clear how or when counsel procured these statements,
which were purportedly taken by two other assistant public
defenders and were the subject of a motion in limine at
James Maynard’s trial. (The motion was denied, and the state
did not call Esparza to testify at that trial, either.) All we
know is that counsel got them sometime before Ebert’s
second trial because he indicated in the post-trial motion that
he had shared them with the state in advance of trial.
12 No. 09-1627
throats bleeding when they are slit, but, according to
the statement’s final line, “[s]he did not hear or tell the
police that she heard any conversation regarding
robbery or murder.”
The trial court denied Ebert’s post-trial motion. Ebert
then pursued an ineffective assistance of counsel claim on
direct appeal. Echoing the claims his counsel made in the
post-trial motion, Ebert contended that counsel’s failure
to seek to quash his arrest and suppress his statement
before the second trial constituted ineffective assistance.
Ebert further argued that his counsel should have
more fully investigated the new statements allegedly
made by Esparza. The appellate court considered the
two new Esparza statements, and, applying the familiar
test articulated in Strickland v. Washington, 466 U.S. 668,
687 (1984), speculated that Ebert’s counsel “may well
have made a tactical decision that further investigation
would be fruitless, given the other evidence of probable
cause.” The appellate court much more explicitly con-
cluded that Ebert could not satisfy the prejudice prong of
Strickland. It found that there was no “reasonable prob-
ability that the final result in this case would have been
different had defense counsel investigated further and
made a motion to suppress.” It noted that it was
applying the probable cause conclusions it had
announced when it heard Ebert’s case previously,
because the facts had not substantially changed. (This is
the “law of the case” doctrine, the purposes of which are
“to further consistency, to avoid constantly revisiting
rulings, and to conserve judicial resources.” Sharp Elecs.
Corp. v. Metro. Life Ins. Co., 578 F.3d 505, 510 (7th Cir.
No. 09-1627 13
2009).) The appellate court found that Esparza’s new
statements did not negate the detectives’ testimony that
she originally told them she overheard a conversation
about a murder. It also found that there were no new
developments with respect to Michael’s statements, and
reiterated that Michael’s and Esparza’s statements pro-
vided an adequate basis for probable cause. The Illinois
Supreme Court denied leave to appeal the ruling.
After exhausting his direct appeals, Ebert sought and
was denied postconviction relief from the Illinois courts.
He then turned to the federal courts, where he filed a
multi-ground petition for a writ of habeas corpus. The
district court denied Ebert’s petition on all grounds. With
respect to his ineffective assistance claim, it rested its
conclusion on our holding in Holman v. Page, 95 F.3d 481,
492 (7th Cir. 1996): that, under the Strickland standard
for ineffective assistance, “no prejudice exists when evi-
dence gathered in violation of the Fourth Amendment is
erroneously admitted at trial.” After we granted Ebert
a certificate of appealability, we overruled Holman, see
Owens v. United States, 387 F.3d 607 (7th Cir. 2004), and
remanded Ebert’s case to the district court for recon-
sideration of his ineffective assistance of counsel claim.
The district court dutifully reexamined the claim. It
concluded that “it is far from clear that Ebert’s motion to
suppress would have been granted had trial counsel
interviewed Esparza and renewed the motion to
suppress his confession.” The district court considered
the information the police had at the time they
arrested Ebert, and determined that “[e]ven if Esparza
14 No. 09-1627
had repudiated her statement to the police, the totality
of the circumstances at the time of Ebert’s arrest” was
sufficient to establish probable cause. The district court
ultimately found “little reason to believe that a renewed
Fourth Amendment challenge would have been meritori-
ous such that the Illinois Appellate Court’s conclusion
to the contrary could be considered erroneous, or beyond
that, ‘well outside the boundaries of permissible differ-
ences of opinion.’ ” (quoting Hardaway v. Young, 302 F.3d
757, 762 (7th Cir. 2002)). Ebert disagreed and sought a
certificate of appealability on the ineffective assistance
issue. The district court granted his request, and we now
consider his arguments.
II. Discussion
We review the district court’s denial of a petition for
habeas corpus de novo. Smith v. McKee, 598 F.3d 374, 381
(7th Cir. 2010). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), we conduct our
review with a great deal of deference to the Illinois courts
that previously evaluated Ebert’s claim. Bin-Yisrayl v. Buss,
540 F.3d 542, 546 (7th Cir. 2008) (“[U]nder post-AEDPA
habeas law, we defer to a great extent to the decisions of
the state courts, and review these decisions for reason-
ableness only.”). We may grant habeas relief only if the
Illinois courts’ adjudication of Ebert’s claim “was con-
trary to, or involved an unreasonable application of clearly
established Federal law as determined by the Supreme
Court of the United States,” or “was based on an unrea-
sonable determination of the facts in light of the evi-
No. 09-1627 15
dence presented.” 28 U.S.C. § 2254(d). Unreasonableness
is a high bar in this context: “[a] state court’s decision
is ‘unreasonable’ within the meaning of § 2254(d)(1) only
if it is ‘so erroneous as to be objectively unreasonable’ and
‘well outside the boundaries of permissible differences
of opinion.’ ” Bennett v. Gaetz, 592 F.3d 786, 790 (7th Cir.
2010) (quoting Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir.
2009)). We review the decision of the last Illinois court
that substantively considered Ebert’s claim, Gonzales v.
Mize, 565 F.3d 373, 379 (7th Cir. 2009), and we will presume
that court’s factual findings to be correct unless Ebert
rebuts that presumption with clear and convincing evi-
dence, Bin-Yisrayl, 540 F.3d at 546 (citing 28 U.S.C.
§ 2254(e)(1) and Miller-El v. Dretke, 545 U.S. 231, 240 (2005)).
The Supreme Court set forth the legal principles that
govern claims of ineffective assistance of counsel in
Strickland v. Washington, 466 U.S. 668 (1984). Under Strick-
land, a defendant must demonstrate both that his
counsel’s performance was deficient when measured
against prevailing standards of professional reasonable-
ness, and that the deficient performance prejudiced his
defense. Strickland, 466 U.S. at 689-92; Brown v. Finnan, 598
F.3d 416, 422 (7th Cir. 2010) (citing Wiggins v. Smith, 539
U.S. 510, 521 (2003)). When the ineffective assistance
claim is based on counsel’s failure to file a motion to
suppress, as it is here, the defendant must also prove
“that his Fourth Amendment claim is meritorious and
that there is a reasonable probability that the verdict
would have been different absent the excludable
evidence in order to demonstrate actual prejudice.”
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); see also
16 No. 09-1627
United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005).
These are at best difficult showings to make, particularly
since Strickland requires that we presume counsel “ren-
dered adequate assistance and made all significant deci-
sions in the exercise of reasonable professional judg-
ment,” Strickland, 466 U.S. at 690, and evaluate his perfor-
mance as a whole rather than focus on a single failing or
oversight, Peoples v. United States, 403 F.3d 844, 848 (7th
Cir. 2005). Ebert’s uphill slope is even steeper under
AEDPA, which adds an extra layer of deference to our
review. See Ellison v. Acevedo, 593 F.3d 625, 633 (7th Cir.
2010); Bin-Yisrayl, 540 F.3d at 546; Conner v. McBride, 375
F.3d 643, 657 (7th Cir. 2004) (“[W]e do not apply the
Strickland standards directly, but instead ask whether the
post-conviction court’s factual findings and conclu-
sions pass AEDPA muster.”).
Ebert argues, as he has consistently, that his counsel’s
performance was deficient because he did not sufficiently
investigate the new statements from Esparza and
relitigate the motion that was raised before Ebert’s first
trial.2 In evaluating counsel’s decision not to investigate
2
Ebert also contends that his counsel should have interviewed
Sharon and Michael Brasher before the second trial. He points
out that the first appellate court admonished his first counsel
for not interviewing Sharon, and leaps from there to the
conclusion that his second counsel therefore could not have
made a reasonable strategic decision not to interview and call
as witnesses Sharon and Michael. This particular factual basis
for the ineffective assistance claim is procedurally defaulted,
(continued...)
No. 09-1627 17
the new statements, the second appellate court concluded
the decision was a tactical one that it saw no reason to
second-guess. See Eckstein v. Kingston, 460 F.3d 844, 849
(7th Cir. 2006). The court came to this conclusion after
accurately recognizing Strickland as the governing prece-
dent. We therefore examine only whether the state court
applied Strickland unreasonably, which occurs only
when the state court’s application of “clearly estab-
lished Federal law” is wholly outside the boundaries of
permissible differences of opinion. Bennett, 592 F.3d at 790.
Here, this inquiry requires us to delve deeper than is
ordinarily required. The second appellate court rested
its finding that counsel’s decision was a legitimate
strategic one on its concomitant conclusion that the
other evidence of probable cause was adequate to
support Ebert’s arrest and would remain so even if
Esparza’s new statements had been pitted against it. That
finding, in turn, rested on the first appellate court’s deter-
mination that probable cause supported the arrest and
that the motion to quash was not denied erroneously.
This recursion runs us right into Ebert’s other primary
contention: that a motion to quash his arrest and
2
(...continued)
however, because Ebert did not fully present it to the state
courts, see Pole v. Randolph, 570 F.3d 922, 935 (7th Cir. 2009)
(citing Stevens v. McBride, 489 F.3d 883, 894 (7th Cir. 2007)). And
because this claim is defaulted, there is no need for us to
consider at length Ebert’s post-argument Fed. R. App. P. 28(j)
letter addressing it in the context of Bynum v. Lemmon, 560
F.3d 678, 684-85 (7th Cir. 2009).
18 No. 09-1627
suppress his confession would have been meritorious
because the courts relied on unreliable evidence to
find probable cause.
Police have probable cause to make an arrest when “the
facts and circumstances within their knowledge and
of which they had reasonably trustworthy information
were sufficient to warrant a prudent man in believing that
the petitioner had committed or was committing an
offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). Probable cause
“is a practical, nontechnical conception,” id. (quoting
Brinegar v. United States, 338 U.S. 160, 176 (1949)), and its
existence is determined using a “totality-of-the-circum-
stances approach,” Illinois v. Gates, 462 U.S. 213, 230-31
(1983). The police must consider the “‘veracity’ and ‘basis
of knowledge’ of persons supplying hearsay informa-
tion,” id. at 238, but those two considerations are com-
plementary: “a deficiency in one may be compensated
for, . . . by a strong showing as to the other,” id. at 233.
In short, “it does not take much to establish probable
cause. The officers must have more than a bare
suspicion that they have the right guy, but they need not
have enough evidence to support a conviction or even
to show that their belief is more likely true than false.”
Fox v. Hayes, 600 F.3d 819, 833 (7th Cir. 2010).
The first appellate court accurately laid out the applica-
ble law governing probable cause even though it did so
largely in terms of state rather than federal law. See Early
v. Packer, 537 U.S. 3, 8 (2002). It then stated that there
were “essentially two pieces of information which the
state argued established probable cause to arrest” Ebert:
the statement from Michael Brasher and the statement
No. 09-1627 19
from Delores Esparza. Ebert challenged both statements,
but the court found the statements sufficiently reliable
to support a finding of probable cause.
The court addressed Ebert’s concerns about the
reliability of Michael’s statements first. It reasoned that
Michael was not a police-paid confidential informant,
and noted that Ebert failed to provide evidence showing
that Michael’s connections to Sharon and Maynard under-
mined the heightened reliability that citizen informants
are often accorded. It went on to note that Michael’s
statements “implicated those that [Ebert] suggests
Michael would fabricate to protect and therefore bolstered
his reliability.” It recognized that the police’s admission
that Michael’s statements had not been entirely con-
sistent could call Michael’s credibility and reliability into
doubt, but found that Ebert’s failure to develop the
extent or even the character of the alleged inconsistencies
left it without a basis to conclude that Michael’s state-
ments were unreliable. See Spiegel v. Cortese, 196 F.3d
717, 725 (7th Cir. 1999) (noting that witnesses do not
have to be “unfailingly consistent to provide probable
cause”). These conclusions were not unreasonable deter-
minations of the facts in light of the evidence presented,
nor did they involve a contravention or unreasonable
application of federal law.
The court also addressed the reliability of Maynard’s
statement to Michael. (Michael relayed to the police that
Maynard told him in confidence that Ebert was one of
the three people involved in the murders.) It found no
reason to doubt the reliability of the statement made in
confidence to Michael. Ebert claims, however, that the
20 No. 09-1627
court erred in giving any weight to the Maynard-via-
Michael statement because “there was simply no ‘range
of details’ provided by Michael Brasher’s alleged state-
ment sufficient to justify the level of trustworthiness
necessary to a finding of probable cause particularly
when the source was James Maynard.” Appellant’s Br. 20.
Ebert is correct inasmuch as he contends that the
Supreme Court has recognized that a source whose
information contains a range of details is more reliable
than one whose does not. See Gates, 462 U.S. at 245-46. But
he misses the mark when he claims that Michael’s state-
ment was wholly devoid of reliability-enhancing detail.
Michael, whose identity was fully disclosed, told
the police that he saw Maynard and English try to
get upstairs on the night of the murders. Michelle inde-
pendently corroborated that detail. He also told the
police that he personally disposed of Maynard’s bloody
boots. Both of these details tend to place Maynard at
the crime scene and thus corroborate his statement to
Michael about who else was there, especially when
Maynard’s statement did not exculpate himself. The
fact that Maynard had testified to a grand jury that
English told him that he was the only perpetrator
does not undermine these details; Maynard made those
statements to divert police attention from himself, a step
he would not have needed to take when speaking
in confidence to his live-in girlfriend’s son. And when
considered in conjunction with the other information
from Michael—as the appellate court properly con-
sidered it—the statement contributes something rele-
vant, not determinative, to the totality of the circum-
stances analysis.
No. 09-1627 21
Ebert nonetheless challenges the appellate court’s mere
consideration of the Maynard-via-Michael statement, on
Confrontation Clause grounds. He cites Lee v. Illinois, 476
U.S. 530, 539-42 (1986), and Lilly v. Virginia, 527 U.S. 116,
131 (1999), for the proposition that the confession of an
accomplice is presumptively unreliable. This argument
doesn’t get Ebert very far, however, because the court
considered the statement at a suppression hearing, not
Ebert’s trial; the Confrontation Clause was not impli-
cated. See United States v. Harris, 403 U.S. 573, 584 (1971)
(noting that Confrontation Clause precedent “seems
inapposite to . . . proceedings under the Fourth Amend-
ment”). Additionally, Maynard’s statement to Michael
did not necessarily implicate himself; it was not a “con-
fession” like the ones in Lee and Lilly.
We are similarly unpersuaded by Ebert’s unsup-
ported claim that the first appellate court erred in its
consideration of Delores Esparza’s statement. The court
accurately characterized the police’s testimony about the
statement. It highlighted the “bled like stuffed pigs”
language, and it mentioned that the overheard conversa-
tion had revolved around the murders of two old men.
The court did not appear to place great weight on
Esparza’s statement, however, concluding only that it
“supports, at least minimally, a reasonable belief that
[Ebert] was involved in the murders.” This was not an
unreasonable conclusion for the appellate court to
draw, particularly in light of a different officer’s corrobo-
rating description of the bloody crime scene and the
unfortunate state of the victims, one of whom had his
throat slit like the “pigs” that were discussed in the
22 No. 09-1627
conversation Esparza overheard. Nor was it the result of
an unreasonable application or dereliction of federal
law. Probable cause “does not require evidence suf-
ficient to support a conviction, nor even evidence that it
is more likely than not that the suspect committed a
crime,” United States v. Carrillo, 269 F.3d 761, 766 (7th Cir.
2001) (quotation omitted), and “the amount of infor-
mation the police are required to gather before
establishing probable cause for an arrest is in inverse
proportion to the gravity of the crime and the threat of
its imminent repetition,” Mason v. Godinez, 47 F.3d 852, 856
(7th Cir. 1995). Given the gravity of the crimes here, the
probable cause bar was low; the first appellate court
did not err in concluding it had been cleared.
The second appellate court’s harkening back to this
objectively reasonable conclusion was also objectively
reasonable. It was not absolutely required to adhere to
its earlier holding, see Castro v. United States, 540 U.S. 375,
384 (2003); White v. United States, 371 F.3d 900, 902 (7th
Cir. 2004) (“And it’s not as if the law of the case doctrine
were a straitjacket that might cause a miscarriage of
justice.”), but it was certainly permitted to, see People v.
Sutton, 908 N.E.2d 50, 58 (Ill. 2009) (“[T]he determination
of a question of law by an appellate court in the first
appeal may be binding on the court in a second appeal.”).
As the second appellate court cogently explained, none
of the well-established exceptions to the law of the case
doctrine applied. It pointed out that the facts underlying
the first appellate court’s probable cause evaluation
were not “so substantially different as to require a
different interpretation.” The court also took the crucial
No. 09-1627 23
next step: it considered whether the facts would have
substantially changed if defense counsel had further
investigated Esparza. It concluded that the new Esparza
statements, even if fully credited by the trial court,
would not have necessarily negated her earlier testimony
or in any way undermined Michael’s.
This conclusion is not unreasonable. Key portions of
the statements, namely the “pigs” language and the
presence of Ebert, are consistent across all three versions.
Moreover, the appellate court considered Esparza’s
initial statement minimally supportive of probable cause
only “when viewed in combination with the other infor-
mation known to police.” It would therefore be highly
unlikely that changes to the statement, or even a retrac-
tion thereof, would result in a significant reweighing of
the totality of the circumstances. Even if Esparza took
the stand at a new suppression hearing and recanted her
first statement to the police—the best-case scenario in
Ebert’s view—her testimony and dubious third “state-
ment” would be competing with testimony from police
officers the trial court already found credible. See Hinton
v. Uchtman, 395 F.3d 810, 820 (7th Cir. 2005). And the
court would still have the statements from Michael and
Michelle, as well as any other fruits of the investigation
preceding Ebert’s arrest, on which to reasonably rest
probable cause. Ebert thus cannot demonstrate that a
motion to suppress would have been meritorious, a
requisite for a successful ineffective assistance of counsel
claim in this situation regardless of the deficiency of
counsel’s performance. See Kimmelman, 477 U.S. at 382.
24 No. 09-1627
It is of no moment that the court neglected to give
weight to Ebert’s attorney’s assessment of his perform-
ance as constitutionally ineffective. See McAfee v. Thurmer,
589 F.3d 353, 356 (7th Cir. 2009) (noting that attorney
“reflection after the fact is irrelevant to the question of
ineffective assistance of counsel”); Chandler v. United
States, 218 F.3d 1305, 1315 n.16 (11th Cir. 2000) (en banc)
(“Because the standard is an objective one, that trial
counsel . . . admits that his performance was deficient
matters little.”). No more helpful are the cases to which
Ebert attempts to analogize his own. This is not a case in
which counsel failed to interview potential alibi wit-
nesses because he thought an alibi defense would be
futile, see Raygoza v. Hulick, 474 F.3d 958, 964-65 (7th Cir.
2007); to the contrary, Ebert’s second counsel presented
three alibi witnesses on his behalf. Nor is it one in which
counsel failed to order a potentially critical toxicology
report, see Harris v. Cotton, 365 F.3d 552 , 555-56 (7th Cir.
2004), or neglected to order a competency hearing, see
Burt v. Uchtman, 422 F.3d 557, 566-69 (7th Cir. 2005). The
Esparza statements that Ebert’s attorney allegedly—there
is nothing in the record one way or the other—failed to
investigate would not have afforded Ebert a reasonable
probability of a different result at trial. Contra Toliver v.
McCaughtry, 539 F.3d 766, 776 (7th Cir. 2008). Ebert simply
cannot satisfy the prejudice element of Strickland, and
the state courts were not acting contrary to or unrea-
sonably applying federal law when they reached that
conclusion.
No. 09-1627 25
III. Conclusion
The state court’s conclusion that the new statements
from Esparza did not negate its earlier finding of probable
cause to arrest Ebert was not “so erroneous as to be
objectively unreasonable,” and Ebert’s counsel was not
constitutionally remiss in failing to file what would have
been an unmeritorious motion to quash his arrest and
suppress his inculpatory statement. We therefore
A FFIRM the district court’s denial of Ebert’s petition for
a writ of habeas corpus.
6-23-10