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Martell Tillman v. Bradley J. Robert

May 17, 2013


The opinion of the court was delivered by: Judge Feinerman


Petitioner Martell Tillman, who is serving a 20-year sentence in Illinois state prison for unlawful use of a weapon by a felon, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Doc. 1. The Warden filed an answer. Doc. 16. Tillman did not file a reply. Tillman's petition is denied, and a certificate of appealability is denied as well.


The facts supporting Tillman's conviction, which were recounted by the Appellate Court of Illinois on direct appeal, People v. Tillman, No. 1-08-1232 (Ill. App. Mar. 15, 2010) (Doc. 17-1 at 8-20), have no bearing on the disposition of his habeas petition and will not be recounted in detail here. Tillman was convicted in a bench trial and sentenced to twenty years imprisonment. Doc. 17-1 at 4-5. On direct appeal, Tillman pressed four claims: (1) that the State had not proved him guilty beyond a reasonable doubt; (2) that his twenty-year prison sentence was excessive; (3) that his three-year mandatory supervised release term was excessive; and (4) that he should have received 408 days credit for pretrial detention rather than the 406 days he actually did receive. Doc. 17-1 at 21-56. The Appellate Court of Illinois affirmed the conviction and sentence, but ordered that Tillman's mittimus be amended to reflect 407 days of sentencing credit. Doc. 17-1 at 8-20. Tillman filed with the Supreme Court of Illinois a timely petition for leave to appeal ("PLA"), which pressed only two issues: (1) the same challenge to the three-year mandatory supervised release term that he raised in the appellate court; and (2) an argument that he should have received 408 days of sentencing credit rather than 407 days that the appellate court granted him. Doc. 17-3 at 3-37. The PLA was denied on March 30, 2011. People v. Tillman, 949 N.E.2d 664 (Ill. 2011).

Tillman filed a post-conviction petition in the state trial court on May 26, 2011. Doc. 17-6 at 2-7. The post-conviction petition raised four claims: (1) that the trial judge told Tillman's counsel that Tillman was supposed to be charged with domestic battery, not unlawful use of a weapon; (2) ineffective assistance of trial counsel; (3) that the weapon was not produced at trial; (4) that the trial transcript was altered; and (5) that the police planted the weapon on him. The ineffective assistance claim is embedded in the following passage of the petition:

I had ineffective counseloring which leadto me being convicted of unlawful use of a weapon, and the gun was never produced at trial, and they altered my [appeal] transcript so bad, until it was Denied. [I]f you will notice on my copy of transcript . you will see where it says Defendant is wrong, this is where the Judge was explaining to Anthony Ruffin [trial counsel] that I was suppose[d] to be charged with only a domestic.

Doc. 17-6 at 3. The state trial court dismissed the petition on July 29, 2011. Doc. 17-6 at 8-13. Tillman filed a notice of appeal on September 7, 2011. Doc. 17-5 at 1. The trial court refused to transmit Tillman's appeal to the state appellate court because it was untimely. Doc. 17-4 at 18. The trial court's order informed Tillman that he could seek leave to file a late notice of appeal, ibid., but Tillman apparently never did so.

Tillman also filed with the state trial court a habeas petition under 735 ILCS 10-102 et seq., which raised claims similar to those raised in his post-conviction petition. Doc. 17-4 at 1-13. The state trial court denied habeas relief in a written order dated December 16, 2011. Doc. 17-4 at 14-17. Tillman did not appeal.


Tillman filed this federal habeas petition on January 24, 2012. Doc. 1. The petition asserts four grounds for relief, which he labels as follows: (1) false arrest and imprisonment; (2) malicious prosecution; (3) emotional distress; and (4) ineffective assistance of counsel. Id. at 5-6. The claims are addressed in turn.

I. False Arrest and Imprisonment

Tillman's first claim, while labelled "False arrest and imprisonment," alleges that the police used excessive force in arresting him, misled him into believing that he had been arrested only for domestic battery, and "tried to get information out of [Tillman] about a crime which [he] knew nothing about." Doc. 1 at 5. This claim is not cognizable on federal habeas review because it pertains only to the manner in which the police effected Tillman's arrest; it does not argue that any evidence obtained as a result of the arrest should have been suppressed at trial.

The Kerr-Frisbie doctrine holds that "the manner in which a defendant is brought to trial does not affect the ability of the government to try him." Matta-Ballesteros v. Henman, 896 F.2d 255, 260 (7th Cir. 1990); see United States v. Crews, 445 U.S. 463, 474 (1980) ("An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. The exclusionary principle of Wong Sun and Silverthorne Lumber Co. delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. Respondent is not himself a suppressible 'fruit,' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly untainted by the police misconduct.") (citations omitted); United States v. Mitchell, 957 F.2d 465, 470 (7th Cir. 1992) ("Although the Second Circuit recognized an 'outrageous conduct' or 'shock-the-conscience' exception to the Kerr-Frisbie doctrine in United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974), we have declined to follow the exclusionary rule grounds of Toscanino and have questioned its continuing constitutional vitality."). Tillman does not allege that any evidence, apart from his own body, was gathered as a result of the manner of his arrest. It follows that his claim is not cognizable on habeas review. See Townsel v. Hathaway, 2010 WL 375668, at *4 ...

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