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Collins v. Atchinson

United States District Court, Seventh Circuit

January 16, 2014

Michael P. Atchinson, Warden, Respondent.


ELAINE E. BUCKLO, District Judge.

On August 24, 2005, petitioner Bernard Collins was convicted of first-degree murder. The trial court sentenced him to 45 years' imprisonment. Petitioner challenged his conviction without success in both direct appeals and post-conviction proceedings in the Illinois state courts. Petitioner, proceeding pro se, now seeks a writ of habeas corpus based on the following five claims: (1) that the police extracted a confession from him prior to issuing Miranda warnings in violation of the Fifth and Fourteenth amendments to the U.S. Constitution; (2) that his trial counsel's failure to cite Missouri v. Seibert, 542 U.S. 600 (2004), during his suppression hearing amounted to ineffective assistance of counsel; (3) that his appellate counsel was ineffective for not claiming that petitioner's Fifth and Fourteenth Amendment rights were violated during his custodial interrogation; (4) that his postconviction counsel failed to provide effective assistance when it misrepresented petitioner's arguments in the postconviction petition; and (5) that the prosecutor violated his due process rights by misconstruing petitioner's claims in the state's motion to dismiss his postconviction petition. For the reasons stated below, I deny his petition and decline to issue a certificate of appealability.


The following facts are taken from the Illinois Appellate Court's Rule 23 Order affirming petitioner's conviction and sentence on direct appeal, People v. Collins, No. 03-CF-2013, (Ill.App.Ct. March 29, 2007), Resp. Ans. [#11] at Ex. A. ( Collins I), that court's summary order affirming the motion to dismiss petitioner's postconviction petition, People v. Collins, No. 03-CF-2013, (Ill.App.Ct. Jun. 28, 2011), Resp. Ans. [#11] at Ex. F ( Collins II ), and the transcript of petitioner's trial, Resp. Ans. [#11] at Ex. N.

On September 27, 2003, petitioner showed up at the residence of Ms. Collins, his wife of more than eight years from whom he has been separated for six months. Petitioner, distraught about Ms. Collins' relationship with another man, began questioning Ms. Collins about that relationship from the front steps. Ms. Collins asked petitioner to leave. When he refused, Ms. Collins went outside to talk to him. After ten minutes, Ms. Collins asked her son who was in the house to call the police. Shortly thereafter, petitioner pulled out a gun and shot Ms. Collins nine times.

In his post-arrest interrogation with police officers, petitioner twice confessed to the murder; the first confession was not videotaped, but the second one was. Petitioner moved to suppress statements he made during the first half of his custodial interrogation, claiming that he was not warned of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). At the pretrial hearing, however, two officers testified that they had given petitioner his Miranda warnings before any questioning took place, and the trial court credited their version of events and denied the motion to suppress.

At trial, petitioner testified on his own behalf. Of the incident, he claimed that he "felt like he was watching [himself] do it and [he] couldn't stop.'" Collins I, at 9. Ms. Collins' son also testified that he saw petitioner pull the trigger and kill his mother. Ms. Collins' housemate at the time of the murder also testified that she saw petitioner and Ms. Collins arguing and that at Ms. Collins' request, she called 911 right before the first shot. A neighbor also testified that she saw petitioner "walking away [from the scene] with a gun in his hand, " and "saw him put it in his jacket pocket." Resp. Ans. [#11] at Ex. N at 454. A police officer also testified that she found "a revolver in [petitioner's] coat pocket" when she arrested him. Id. at 470.

Following deliberations, the jury found petitioner guilty of first degree murder, and the trial court sentenced him to 45 years' imprisonment.


Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may not grant a state prisoner habeas relief unless the decision of the highest state court to adjudicate petitioner's claims "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1)-(2).

Under AEDPA, a petitioner is also required to exhaust the remedies available to him in state court prior to seeking federal habeas relief. See 28 U.S.C. § 2254(b). This provision requires the petitioner to raise his claims "through one complete round of state-court review, either on direct appeal of his conviction or in post conviction proceedings." Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004).

Pre- Miranda Confession

Petitioner argues that his interrogation proceeded in two stages, but that he was given Miranda warnings only at the commencement of the second stage, after he had already made incriminating statements during the first stage. Petitioner urges that statements amounting to a confession of the murder should have been suppressed because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), since the police officers only issued the Miranda warnings after he had given a confession.

Respondent argues that this claim has not been presented for a full round of state court review, and thus having failed to "apprise the state courts that he intended to pursue it independently of his ineffective-assistance claims, " ...

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