                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 02-3452
BRIAN MIRANDA,
                                        Petitioner-Appellant,
                             v.

BLAIR J. LEIBACH,
                                       Respondent-Appellee.

                       ____________
           Appeal from the United States District Court
                 for the Central District of Illinois.
       No. 01 C 2024—Michael P. McCuskey, Chief Judge.
                       ____________
  ARGUED FEBRUARY 10, 2004—DECIDED JANUARY 20, 2005
                    ____________




  Before RIPPLE, ROVNER, and WOOD, Circuit Judges.
  ROVNER, Circuit Judge. A jury convicted Brian Miranda
of first-degree murder, and the trial court sentenced him to
serve 30 years in prison. After exhausting his state court
remedies, Miranda petitioned for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The district court denied his
petition. We affirm.


                              I.
 In the early evening of October 13, 1993, 15-year-old
Michael Ryan was killed on the northwest side of Chicago
2                                                No. 02-3452

by a gunshot to the back of his head. On the following day,
having learned that 16-year-old Frank Perez had been seen
in the vicinity of the shooting and that Ryan had been
having trouble with a boy named Frankie, police officers
went to the Perez apartment to speak with him.
  When the officers arrived at around 2:30 in the afternoon,
Frank Perez was watching television along with Michael
Chavez and Brian Miranda (ages 15 and 17, respectively) in
the living room of the residence. Perez was summoned to
the kitchen, where the rear entrance to the second-floor
apartment was located. What happened next was disputed.
  According to police officers, Perez, followed by Miranda
and Chavez, voluntarily stepped outside of the apartment
at the officers’ request to answer questions about the shoot-
ing. After Chavez revealed to one of the officers that it was
Perez who shot Ryan, Perez was arrested, handcuffed, and
taken to a police station. Miranda and Chavez were not
arrested, but voluntarily accompanied the police to the
station for further questioning.
  Miranda, Perez, and Chavez told a different story. They
testified that as soon as Perez entered the kitchen, the
police, who had entered the apartment without permission,
handcuffed him on the spot. Officers then entered the living
room with guns drawn, ordered Miranda and Chavez
against the wall, frisked them, and handcuffed both of them.
All three were then taken to the police station in handcuffs.
  Miranda and Chavez were questioned separately at the
station. Again, the circumstances surrounding that ques-
tioning were disputed. Police officers testified that neither
Miranda nor Chavez was under arrest at that time, and
that both young men voluntarily cooperated with the ques-
tioning. By contrast, Miranda testified that on arrival at the
station, he was taken to a windowless holding room and
handcuffed to a ring on a wall. Chavez testified that al-
though his handcuffs were removed on arrival at the
No. 02-3452                                                      3

station, he did not feel free to leave the station and, in fact,
was not released until the following day, after he testified
before a grand jury.
  At approximately 3:30 that afternoon, Chavez told a
detective during questioning that Miranda had supplied the
gun that Perez had used to shoot Ryan. Armed with this
information, police resumed questioning of Miranda.
  Upon being confronted with Chavez’s statement at around
4:00 p.m., Miranda confessed his involvement in the shoot-
ing and led police to the gun that Perez had used to kill
Ryan. Shortly before 8:00 p.m., after the gun had been re-
covered, Miranda gave a formal statement under question-
ing by an Assistant State’s Attorney and after being ap-
prised, on the record, of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966). That state-
ment was transcribed by a court reporter and signed by
Miranda.1
  Miranda was charged with first-degree murder pursuant
to an accountability theory. Under Illinois law, one person
is legally accountable for a crime committed by another
when, before or during the offense, he aids (or tries to aid)
the planning or commission of the crime with the intent
to facilitate or promote the commission of the crime. 720
ILCS 5/5-2(c); see Huynh v. Bowen, 374 F.3d 546, 548-49
(7th Cir. 2004); McFowler v. Jaimet, 349 F.3d 436, 439 (7th
Cir. 2003).


1
   The record indicates that once Miranda was confronted with
Chavez’s statement, he gave a total of three statements acknowl-
edging that he had supplied Perez with the gun that Perez used
to kill Ryan, the last of these being Miranda’s formal, court-re-
ported statement. It appears that all three statements were sim-
ilar if not identical in their substance. For convenience, we shall
therefore refer to these statements collectively as Miranda’s post-
arrest statements or his confession.
4                                               No. 02-3452

   Prior to trial, Miranda moved to quash his arrest and to
suppress any and all statements (including the court-re-
ported confession) that authorities had elicited from him
pursuant to the arrest. It was Miranda’s contention that
police had arrested him at the Perez residence, well before
they had any information linking him to the shooting and
thus without probable cause. The trial judge conducted an
evidentiary hearing at which Miranda, Perez, Chavez, three
of the police officers who were present at the Perez res-
idence, and a number of other individuals testified. At the
conclusion of that hearing, the judge found that Miranda
had been arrested without probable cause at the Perez res-
idence. G2-3. The focus of the proceeding then turned to
whether, as the State argued, Miranda’s statements at the
police station were sufficiently attenuated from his arrest
as to demonstrate that those statements were the product
of free will rather than the illegal arrest. See Brown v.
Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2261-62
(1975). After entertaining further argument on that point,
the trial judge concluded that Chavez’s statement impli-
cating Miranda in the crime was a sufficient intervening
cause of Miranda’s confession so as to purge the taint of the
illegal arrest and render Miranda’s confession voluntary
and admissible at trial. C7, M38.
  Miranda was tried before a jury. The State’s evidence at
trial revealed that Miranda, Perez, Chavez and Ryan had all
belonged to a street gang known as the Imperial Gangsters.
Perez headed the small, local section of that gang. Ryan and
another member, Sean Joyce, had decided to withdraw from
the gang, but neither had undergone what gang members
referred to as a “violation,” which entailed a three-minute
beating from head to toe by the entire gang and was
considered a prerequisite to a member being allowed to
depart the gang. As a result, the gang had issued what
members referred to as an S.O.S. or “smash on sight” order
against Ryan and Joyce. Apparently, it was that order that
No. 02-3452                                                5

culminated in Ryan’s death. Two months earlier, Ryan’s
mother had heard Perez threaten Ryan’s life. On the even-
ing of the shooting, Perez and Chavez went to Miranda’s
house, where Miranda supplied Perez with a .38-caliber
automatic revolver that he had obtained from another gang
member. Perez told Miranda that he needed the gun in
order to “take care of business” with Ryan and Joyce. The
three of them then rode their bikes around the neighbor-
hood looking for Ryan and Joyce. They found Ryan at a
nearby J.J. Peppers convenience store. After some discus-
sion between Perez and Ryan, Ryan left the store with the
others, ostensibly to take Perez to meet with Joyce. Ryan
and Perez rode together on Perez’s bike, with Ryan at the
handles and Perez behind him. As the group bicycled to the
meeting with Joyce, Perez took the gun that Miranda had
given him from his pocket and shot Ryan in the head. Ryan
fell to the ground; the others fled. Miranda and Perez rode
their bikes to Perez’s house, where Perez returned the
revolver to Miranda, along with a sawed-off shotgun. After
cleaning the revolver, Miranda hid the guns in his bedroom,
where they remained until he led the police to them the
next day.
  Miranda’s court-reported confession was published to
the jury during the trial. P237-P249. In that statement,
Miranda acknowledged, among other things, that he had
given the revolver to Perez at Perez’s request, that Perez
told him he needed a gun in order to “take care of business,”
that he understood Perez to mean that he wanted to kill
someone, that Perez told him it was either Ryan or Joyce
that he meant to kill, that he accompanied Perez on the
night of the shooting knowing this was Perez’s intent, that
he witnessed the shooting, that Perez used the gun he had
given to him to kill Ryan, and that he hid that gun in his
bedroom following the shooting.
  Miranda testified in his own defense and repudiated cer-
tain aspects of his court-reported statement. He denied, for
6                                               No. 02-3452

example, that Perez told him on the night of the shooting
that he was going to “take care of business” or that he was
going to shoot anyone. He asserted that he had accompa-
nied Perez on Perez’s order. He denied seeing Perez take
the gun out of his pocket to shoot Ryan. But he acknowl-
edged having given the gun to Perez and then hiding that
gun and the shotgun in his bedroom following the shooting.
He testified that he and Ryan were good friends who had
known each other since they were three years old.
  The jury convicted Miranda of first-degree murder. The
trial judge later sentenced Miranda to a prison term of 30
years. Miranda filed a written motion for a new trial, R03,
which the trial judge denied. Omitted from the boilerplate
arguments made in that motion was any challenge to the
judge’s attenuation ruling.
  Miranda appealed his conviction to the Illinois Appellate
Court, arguing that the trial court had erred in finding that
his confession was sufficiently attenuated from his illegal
arrest to be considered voluntary and admissible at trial.
Miranda conceded, however, that he had not properly
preserved the issue for appeal by raising it in his motion for
a new trial. R. 9 Ex. A at 12; id. Ex. C at 3. In view of the
omission, Miranda asked the appellate court to review this
issue for plain error. R. 9 Ex. A at 12; id. Ex. C at 3.
Miranda contended that the trial court, in holding that
Chavez’s inculpatory statement was a sufficient intervening
cause of his confession, had overlooked the fact that
Chavez’s statement was the fruit of Chavez’s own illegal
arrest; consequently Chavez’s statement could not serve to
purge the taint of Miranda’s illegal arrest from Miranda’s
confession. R. 9 Ex. A at 14 & id. Ex. C at 6-7, citing, inter
alia, People v. Avery, 534 N.E.2d 1296, 1302 (Ill. App. Ct.
1989).
   The appellate court affirmed Miranda’s conviction. People
v. Miranda, No. 1-96-1381, Summary Order (Ill. App. Ct. 1st
No. 02-3452                                                   7

Dist. Aug. 29, 1997) (unpublished) (hereinafter, the “Sum-
mary Order”). In accord with Miranda’s request, the court
reviewed the trial court’s decision to admit his confession
into evidence for plain error. Id. at 1. The court acknowl-
edged Avery’s holding that the inculpatory statement of one
illegally arrested individual could not serve as a sufficient
intervening cause of another illegally arrested person’s
confession. Id. at 3, citing Avery, 534 N.E.2d at 1302. How-
ever, the court found this case factually distinguishable
from Avery:
       Unlike Avery, Chavez, a witness to the shooting, was
    not illegally arrested. His statement to the police not only
    provided them with probable cause to arrest defendant,
    but also was an intervening circumstance which dissi-
    pated the taint of the illegal arrest. The police officers
    here, moreover, did not engage in official misconduct,
    but acted on information collected from witnesses.
    Defendant, further, was given Miranda warnings prior
    to his confession. Although not much time elapsed be-
    tween defendant’s arrest and his subsequent confession,
    the key to whether the passage of time constitutes suf-
    ficient attenuation depends considerably upon whether
    any intervening circumstances occurred during the time
    period. As aforementioned, Chavez’s statement to the
    police was a sufficient intervening circumstance which
    served to dissipate the taint of defendant’s illegal
    arrest.
      For the foregoing reasons, the circuit court’s finding
    of sufficient attenuation to purge the taint of the illegal
    arrest was not manifestly erroneous. Accordingly, the
    defendant’s conviction and sentence are affirmed.
Summary Order at 4. The Illinois Supreme Court denied
Miranda’s petition for leave to appeal, and the United
States Supreme Court subsequently denied his petition for
a writ of certiorari.
8                                                  No. 02-3452

  Miranda subsequently filed a pro se petition for post-
conviction relief in the Circuit Court of Cook County. R. 9
Ex. I. In that petition, he again challenged the admission of
his confession into evidence. The trial court summarily
dismissed the petition without conducting an evidentiary
hearing. Although Miranda appealed from the dismissal of
his post-conviction petition, he did not pursue the admis-
sion of his confession any further.
   Having exhausted his state court remedies, Miranda filed
a pro se petition for a writ of habeas corpus in the district
court. The district court denied the petition in an unpub-
lished order. R. 17.
  At the outset, the court noted that a habeas petitioner
ordinarily cannot pursue a Fourth Amendment challenge to
his conviction in federal court so long as he had a full and
fair opportunity to litigate the claim in state court. Id. at 3,
citing Stone v. Powell, 428 U.S. 465, 482, 96 S. Ct. 3037,
3046 (1976). Miranda contended he was denied this oppor-
tunity in that the Illinois Appellate Court disposed of his
Fourth Amendment claim based on a key factual deter-
mination (that Chavez was not under arrest) which lacked
fair support in the evidentiary record. The district court
found itself unable to resolve this contention definitively
because the parties had not submitted the complete record
of the trial court proceedings on Miranda’s motion to quash
his arrest and suppress his post-arrest statements. How-
ever, on the limited record before it, the court agreed with
Miranda that there seemed to be a lack of record support for
the notion that Chavez was not under arrest: the trial judge
appeared to have found that Chavez, like Miranda, was
handcuffed at the Perez residence, and Chavez himself had
testified both that he was handcuffed at the apartment and
that, despite the subsequent removal of the handcuffs at the
police station, he did not feel free to leave until the following
day, after he had testified before the grand jury. The court
therefore assumed that Miranda had been deprived of a full
and fair opportunity to litigate his Fourth Amendment
No. 02-3452                                                 9

claim in the Illinois courts and that federal habeas review
of that claim was permitted. R. 17 at 3-6.
  The court rejected the State’s argument that Miranda had
committed a procedural default that blocked review of this
claim in habeas corpus. Miranda had failed to pursue the
Fourth Amendment issue in his post-trial motion for a new
trial and the Illinois Appellate Court, in view of that
default, had reviewed the issue solely for plain error. None-
theless, the district court determined that Illinois courts do
not follow a consistent practice with respect to issues
omitted from post-trial motions. Specifically, Illinois cases
reflect an inconsistency as to whether an exception for con-
stitutional issues will permit review of such issues when
they were raised at trial but not in a post-trial motion.
Given the lack of uniformity vis-à-vis that exception, the
district court concluded that the procedural default was not
well enough established in Illinois law as to constitute an
adequate and independent basis for the Illinois Appellate
Court’s decision. Therefore, federal review of the Fourth
Amendment claim was not barred by the procedural default.
R. 17 at 6-8.
  Nonetheless, the district court concluded that habeas
relief was foreclosed to Miranda on another ground. The
premise of Miranda’s Fourth Amendment claim was that
because Chavez was under arrest without probable cause
when he made the statement inculpating Miranda, his
statement could not serve as a sufficient intervening cause
of Miranda’s confession that purged the taint of Miranda’s
own unlawful arrest. However, the district court found no
binding authority holding that only legally obtained evi-
dence can constitute a sufficient basis for breaking the
chain of causation between a defendant’s illegal arrest and
his post-arrest confession. A holding to that effect would
amount to a new rule of constitutional law, and Teague v.
Lane, 489 U.S. 288, 109 S. Ct. 1060 (1989), precludes habeas
relief based on a new constitutional rule. R. 17 at 8-9.
10                                                No. 02-3452

  The district court denied Miranda’s request for a certifi-
cate of appealability. R. 23; see 28 U.S.C. § 2253(c)(1)(A);
Fed. R. App. P. 22(b)(1). We later issued such a certificate
and appointed counsel for Miranda.


                              II.
A. Procedural Default
   We review de novo a district court’s determination as to
procedural default. Page v. Frank, 343 F.3d 901, 905 (7th
Cir. 2003). When the last state court to issue an opinion on
a petitioner’s federal claim has resolved that claim on an
adequate and independent state ground, federal habeas re-
view of the claim is foreclosed. E.g., Lambrix v. Singeltary,
520 U.S. 518, 523, 117 S. Ct. 1517, 1522 (1997) (coll. cases).
Typically this occurs when the petitioner failed to comply
with a state procedural rule and the state court relied on
that procedural default to refrain from reaching the merits
of the federal claim. See Coleman v. Thompson, 501 U.S.
722, 729-30, 111 S. Ct. 2546, 2554 (1991) (coll. cases). A
state ground is deemed “independent” for this purpose “only
if the state court actually relied on a state rule sufficient to
justify its decision.” Prihoda v. McCaughtry, 910 F.2d 1379,
1382 (7th Cir. 1990). The adequacy of the state ground is a
question of federal law, Lee v. Kemna, 534 U.S. 362, 375,
122 S. Ct. 877, 885 (2002); the ground is considered “ade-
quate” only if the state court applies the rule “in a consis-
tent and principled way,” Prihoda, 910 F.2d at 1383. The
adequate and independent state ground doctrine is subject
to equitable exceptions. If the petitioner can demonstrate
cause for his failure to comply with the state rule and
prejudice resulting from the default, or alternatively that a
miscarriage of justice will occur if he is not granted relief,
then a federal court may reach the merits of his claim
notwithstanding the adequate and independent basis for
the state court ruling. Harris v. Reed, 489 U.S. 255, 262,
No. 02-3452                                                     11

109 S. Ct. 1038, 1043 (1989).
  In this case, there is no dispute as to the independence of
the ground on which the Illinois Appellate Court disposed
of Miranda’s Fourth Amendment claim. Illinois law requires
a convicted defendant to include any and all claims of error
in a post-trial motion for a new trial. 725 ILCS 5/116-1;
People v. Enoch, 522 N.E.2d 1124, 1129-30 (Ill. 1988).2 The
failure to comply with this requirement amounts to a waiver
of the claim. Id. (coll. cases).3 The Illinois Appellate Court,
noting that Miranda had not pursued this issue in his post-
trial motion, limited its review of this claim to one for plain
error, pursuant to Illinois Supreme Court Rule 615(a). R. 17
at 1. Rule 615(a), in relevant part, provides that “[p]lain



2
  The Illinois Supreme Court in Enoch reiterated the reasons for
the requirement that a defendant preserve by way of a post-trial
motion any issues that he wishes to pursue on appeal:
    Failure to raise issues in the trial court denies that court the
    opportunity to grant a new trial, if warranted. This casts a
    needless burden of preparing and processing appeals upon
    appellate counsel for the defense, the prosecution, and upon
    the court of review. Without a post-trial motion limiting the
    consideration to errors considered significant, the appeal is
    open-ended. Appellate counsel may comb the record for every
    semblance of error and raise issues on appeal whether or not
    trial counsel considered them of any importance.
522 N.E.2d at 1130 (quoting People v. Caballero, 464 N.E.2d 223,
227 (Ill. 1984)).
3
   We are using “waiver,” which is the term the Illinois cases typ-
ically use, in the broadest sense, to signify a forfeiture of the
claim. See United States v. Richardson, 238 F.3d 837, 841 (7th Cir.
2001). True waiver entails the intentional relinquishment of a
known right, which is not normally established by the mere
failure to comply with a procedural requirement such as the filing
of a post-trial motion. See Lewis v. Sternes, 390 F.3d 1019, 1029
(7th Cir. 2004).
12                                               No. 02-3452

errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the trial
court.” As we have previously recognized, an Illinois court
does not reach the merits of a claim simply by reviewing it
for plain error. See, e.g., Neal v. Gramley, 99 F.3d 841, 844
(7th Cir. 1996); see also Rodriguez v. McAdory, 318 F.3d
733, 735 (7th Cir. 2003) (coll. cases). Consequently, the
plain-error analysis engaged in by the appellate court did
not cure Miranda’s default. Id.
  The dispute instead focuses on whether the waiver rule
was an adequate ground for the Illinois Appellate Court’s
decision not to reach the merits of his Fourth Amendment
claim. Miranda contends, and the district court agreed, that
the waiver rule is not adequate because the Illinois courts
do not apply the rule in a consistent way. Their quarrel is
not with the basic proposition that an issue must be raised
in post-trial motion in order to be preserved for appeal. As
we recognized in White v. Peters, 990 F.2d 338, 340 (7th Cir.
1993), that requirement has had a statutory basis since at
least 1963 and has been repeatedly recognized and applied
in Illinois cases. The concern, rather, is with the appellate
court’s unwillingness to apply an exception to the rule that
the Illinois Supreme Court identified in Enoch. Although
Enoch reaffirmed the obligation to preserve an issue by way
of a post-trial motion, it also recognized three exceptions to
this requirement, one of which is relevant here. Enoch
indicated that the failure to include a constitutional claim
in a post-trial motion will not constitute a waiver of that
claim if the defendant raised the issue at trial and the issue
is one that could be raised on post-conviction review. 522
N.E.2d at 1132; see also People v. McCallister, 737 N.E.2d
196, 214-15 (Ill. 2000) (applying exception to reach eviden-
tiary ruling in capital case not raised in post-trial motion
“because it concerns defendant’s due process right to
present a defense and because the claim was raised by the
defense at trial”).
No. 02-3452                                                 13

  However, as the district court recognized, the Illinois ap-
pellate courts are divided as to whether the constitutional-
issue exception applies in non-capital cases. Enoch itself
was a capital case, and the Illinois Supreme Court set forth
the exceptions to the waiver rule while discussing the
breadth of its review in cases where the death penalty had
been imposed. 522 N.E.2d at 1131-32. In People v. Alexander,
the Illinois Appellate Court for the First District (which em-
braces Cook County, where Miranda was tried) concluded
that Enoch’s exception for constitutional issues raised at
trial did not apply in cases where the death penalty had not
been imposed, but rather that such issues were reviewed for
plain error alone. 571 N.E.2d 1075, 1083 (Ill. App. Ct.
1991).
      We . . . hold that review of even a constitutional issue
    is waived by failure to properly preserve it in a post-
    trial motion, unless the error reasonably could have
    affected the verdict or if it would have resulted in a
    failure to afford the defendant due process of law. We
    believe that the holding in Enoch was clearly intended
    to govern direct reviews by the Illinois Supreme Court
    of “cases in which a sentence of death was imposed,”
    (Enoch, 122 Ill.2d 176 at 190, 119 Ill. Dec. 265, 522
    N.E.2d 1124; Ill. Const. 1970, art. VI sec. 4(b)), and that
    limiting our review to issues which could reasonably
    have affected the verdict still adequately ensures that
    serious injustices are corrected and that the integrity
    and reputation of the judicial process is preserved.
    People v. Young (1989), 128 Ill.2d [1] at 46, 131 Ill. Dec.
    78, 538 N.E.2d 453.
571 N.E.2d at 1083. The court acknowledged that “the
authorities are not in harmony on this issue,” and that a
number of cases in the First District had reached the merits
of constitutional issues not properly preserved by way of a
post-trial motion. Id. The court did not believe that its
holding was irreconcilable with those cases, however. It rea-
14                                                No. 02-3452

soned that the constitutional errors asserted in those cases
either were entirely without merit or were so serious as to
have either compelled a new trial or to have foreclosed a
trial altogether. Id.
   Unfortunately, the same division of authorities that
Alexander recognized and attempted to resolve has persisted
in the wake of that decision. Other appellate districts either
have expressly rejected Alexander’s holding or, without dis-
cussion of the conflict in authority, have reached the merits
of constitutional issues in non-capital cases notwithstand-
ing the fact that they were not preserved by way of post-
trial motions. See People v. Burnfield, 692 N.E.2d 412, 416
(Ill. App. Ct. 5th Dist. 1998) (expressly rejecting Alexander
and reviewing suppression issue notwithstanding defendant’s
failure to raise that issue in post-trial motion) (following
People v. Torres, 669 N.E.2d 1279, 1284 (Ill. App. Ct. 3d Dist.
1996) (acknowledging that failure to file post-trial motion
constituted “technical” waiver of suppression issue, but find-
ing that motion before or during trial sufficed to preserve
issue)); see also, e.g., People v. Moore, 804 N.E.2d 595, 598-99
(Ill. App. Ct. 4th Dist. 2003) (applying constitutional excep-
tion to reach due process and equal protection issues) (citing
People v. Cox, 693 N.E.2d 483, 485 (Ill. App. Ct. 4th Dist.
1998) (applying constitutional exception to suppression
issue)); People v. Komes, 749 N.E.2d 382, 386 (Ill. App. Ct.
2d Dist. 2001) (in a non-capital case, listing Enoch’s con-
stitutional exception as among exceptions to waiver rule
that might apply). Even within the First District, the cases
remain inconsistent in their discussion and application of
the waiver rule. Although we can find no published First
District decision that reaffirms and applies Alexander’s
holding, there are some decisions which, consistent with
Alexander (although not citing it), indicate that examination
of constitutional issues not properly preserved by way of,
inter alia, a post-trial motion is confined to plain-error re-
view. See People v. Dunn, 760 N.E.2d 511, 515-16 (Ill. App.
No. 02-3452                                                15

Ct. 1st Dist. 2001) (reviewing waived perjury claim for plain
error because it “alleges a violation of substantial consti-
tutional rights”); People v. Bowman, 758 N.E.2d 408, 419
(Ill. App. Ct. 1st Dist. 2001) (reviewing waived question
regarding jury selection for plain error “because this issue
affects the constitutional right to a fair trial”). But other
cases have engaged in a complete merits review of issues
not preserved in a post-trial motion, relying on Enoch’s con-
stitutional exception. See People v. Falls, 625 N.E.2d 313,
317-19 (Ill. App. Ct. 1st Dist. 1993) (reviewing suppression
issues implicating constitutional rights notwithstanding
court’s presumption that defendant had not preserved them
via post-trial motion); People v. Williams, 599 N.E.2d 1033,
1035 (Ill. App. Ct. 1st Dist. 1992) (“Although we conclude
that the claim of an illegal arrest has been waived, we will
review it in the interest of judicial economy, as it involves
a constitutionally based issue.”).
  The ongoing inconsistency might be explained by the prin-
ciple, often recognized in Illinois cases, that waiver binds
the parties but not the courts. E.g., People v. Segoviano, 725
N.E.2d 1275, 1282 (Ill. 2000); People v. Farmer, 650 N.E.2d
1006, 1009 (Ill. 1995); see also People v. Terrell, 708 N.E.2d
309, 339 (Ill. 1998) (Freeman, C.J., concurring). Invocation
of that principle enables a court to “obtain[ ] a just result
and maintain[ ] a consistent body of precedent” notwith-
standing a defendant’s failure to preserve a claim of error.
Segoviano, 725 N.E.2d at 1282. Unfortunately, the uneven
application of the waiver rule and the exceptions to the rule
also makes it difficult, if not impossible, for litigants to
predict how the rule will be applied. Cf. Terrell, 708 N.E.2d
at 339 (Freeman, C.J., concurring) (criticizing majority’s
inconsistent application of waiver doctrine because, inter
alia, it “creates confusion for application of the doctrine in
future cases”).
  Despite the inconsistent treatment of the waiver rule in
the Illinois courts, Miranda faces an uphill slope in the
16                                                No. 02-3452

effort to demonstrate that the rule is not an adequate basis
for the appellate court’s decision to abstain from the merits
of his Fourth Amendment claim. We often describe a rule
that might fail the adequacy test as one that is invoked
“infrequently, unexpectedly, or freakishly.” Prihoda v.
McCaughtry, supra, 910 F.2d at 1383; see also Page v.
Frank, supra, 343 F.3d at 908-09; Thomas v. McCaughtry,
201 F.3d 995, 1000 (7th Cir. 2000); Tredway v. Farley, 35
F.3d 288, 295 (7th Cir. 1994); Lilly v. Gilmore, 988 F.2d
783, 785 (7th Cir. 1993); Bobo v. Kolb, 969 F.2d 391, 399
(7th Cir. 1992); cf. Lee v. Kemna, supra, 534 U.S. at 376,
122 S. Ct. at 885 (“Ordinarily, violation of ‘firmly established
and regularly followed’ state rules . . . will be adequate to
foreclose review of a federal claim.”) (quoting James v.
Kentucky, 466 U.S. 341, 348, 104 S. Ct. 1830, 1835 (1984)).
It would be difficult to characterize the rule deeming claims
waived if not included in a post-trial motion as such an
aberrant rule. We noted in Prihoda that a rule need not be
followed strictly in order for it to constitute an adequate
ground for the state court’s decision. 910 F.2d at 1384 (“A
state ground that is solidly established will be respected
even though not ‘strictly’ followed”). Whatever inconsis-
tencies there may be in the Illinois courts’ application of the
rule, invocation of the rule as a procedural bar could hardly
be described as surprising, particularly in the First District,
where Miranda was convicted. See Braun v. Powell, 227 F.3d
908, 912 (7th Cir. 2000) (state rule not adequate if prisoner
could not fairly have been deemed to be apprised of its
existence at the time she acted); Thomas, 201 F.3d at 1000-
01 (same); but see Rosa v. Peters, 36 F.3d 625, 633-34 (7th
Cir. 1994) (finding that defendant’s failure to make a record
of the racial composition of the jury in support of his Batson
claim was not an adequate ground for state court finding
that the claim was barred, in view of fact that Illinois courts
do not uniformly require such a record); see also Thomas,
201 F.3d at 1001 (suggesting that rule applied in “inconsis-
tent” way would not be adequate ground for state court’s
decision). Moreover, our own cases have cited the waiver
No. 02-3452                                                17

rule as an adequate and independent ground for the
decisions of Illinois courts. E.g., Rodriguez v. McAdory,
supra, 318 F.3d at 735; White v. Peters, supra, 990 F.2d at
340-41 & n.1; see also Aliwoli v. Gilmore, 127 F.3d 632, 634
(7th Cir. 1997) (“If a claim is found to be waived by an
Illinois appellate court, that constitutes an independent and
adequate state ground and we will not entertain that
claim.”).
  Indeed, in White, we rejected the notion that Illinois’
waiver rule was inadequate notwithstanding the petitioner’s
allegation that it was “frequently ignored” by the Illinois
courts. Id. at 340 n.1.
    We believe that the rule requiring that all issues for
    appeal be preserved in a written post-trial motion is
    solidly established in Illinois law. The rule has had a
    statutory source since at least 1963, see Ill. Rev. Stat.,
    ch. 38 ¶ 116-1, and the Illinois Supreme Court has re-
    peatedly held that issues not contained in a written
    post-trial motion are waived on appeal even though a
    timely objection was interposed at trial. See People v.
    Szabo, 113 Ill.2d 83, 100 Ill. Dec. 726, 730, 497 N.E.2d
    995, 999 (1986), cert. denied, 479 U.S. 1101, 107 S. Ct.
    1330, 94 L.Ed.2d 181 (1987); People v. Pickett, 54 Ill.2d
    280, 296 N.E.2d 856, 857 (1973). People v. Enoch [on
    which the Illinois Appellate Court had relied in finding
    White’s claim waived] could be considered unexpected
    only to the extent that it required compliance with the
    written motion rule in capital as well as non-capital
    cases. Consequently, we conclude that the procedural
    rule upon which the Illinois Appellate Court relied in
    refusing to consider White’s argument is “solidly es-
    tablished” and thus that White’s default under that rule
    bars relief in a federal habeas proceeding absent
    showings of both cause and prejudice.
990 F.2d at 340-41 (footnote omitted).
18                                               No. 02-3452

  To be sure, our opinion in White dealt not with any of the
exceptions to the waiver rule discussed in Enoch, but rather
with a purported practice in Illinois courts of allowing a
general oral motion for a new trial to substitute for a writ-
ten motion. See id. at 340. By contrast, here we are dealing
with an exception established by the Illinois Supreme Court
for constitutional issues, an exception that the Supreme
Court has not (yet) expressly limited to capital cases and
one that the state appellate courts have applied and con-
tinued to apply in non-capital cases. So, White does not
necessarily foreclose a determination that the waiver rule
is an inadequate ground for a state court’s decision as to a
constitutional claim that satisfies Enoch’s criteria for the
constitutional exception. Still, White does tend to negate the
notion that inconsistencies in the application of the waiver
rule will, in and of themselves, render the rule inadequate
for purposes of the procedural default inquiry. Id. at 340-41
& n.1; see also White v. Lane, 785 F. Supp. 768, 774-75
(N.D. Ill. 1992) (inconsistent appellate court practice
regarding exceptions to waiver rule did not render rule
inadequate), judgment aff’d, 990 F.2d 338.
  In our view, what dooms Miranda’s argument vis-à-vis
the adequacy of the waiver rule is his own concession before
the Illinois Appellate Court that he had waived the Fourth
Amendment claim. At bottom, Miranda’s contention is that
the appellate court should have reviewed that claim on the
merits pursuant to Enoch’s exception for constitutional
issues properly raised at trial and amenable to review in
post-conviction proceedings. But Miranda never asked the
appellate court to apply that exception. Of course, it is quite
possible that had he done so, the court nonetheless would
have refused to entertain the claim on its merits and
confined its review to one for plain error, consistent with
Alexander. On the other hand, the court might have granted
his request, consistent with cases in the First District and
other appellate districts that have invoked Enoch’s constitu-
No. 02-3452                                                 19

tional exception in non-capital cases. What is relevant for
our purposes is that the court was not asked to make that
choice. Miranda’s argument conceded that he had waived a
merits-based review of his claim and that, consequently, he
was entitled to no more than plain-error review. Miranda
stated as follows in his opening brief:
    The issue was not preserved in the defendant’s motion
    for a new trial. The defendant is asking this Court to
    review the error, pursuant to Illinois Supreme Court
    Rule 615(a), because [of] the magnitude of the alleged
    error. Plain errors or defects affecting substantial rights
    may be noticed although they were not brought to the
    attention of the trial court. . . .
R. 9 Ex. A at 12. Miranda’s reply brief reiterated the con-
cession. Id. Ex. C at 3. Thus, any doubt as to whether the
court would have applied the constitutional exception is
beside the point. Miranda cannot claim to be the surprised
victim of an infrequent, unexpected, or freakish application
of the waiver rule when he conceded waiver and did not
invoke any exception that would have permitted more than
plain-error review. His own briefs before the Illinois
Appellate Court reveal that he was not only aware of the
waiver rule but anticipated that the rule would preclude a
merits review of his Fourth Amendment claim. There cer-
tainly is no indication that the appellate court blind-sided
Miranda or invoked the waiver rule in an unprincipled or
discriminatory way. See Prihoda, 910 F.2d at 1383 (lack of
notice and consistency in application of state rule may show
that state is discriminating against federal right asserted).
On the contrary, the court handled his claim in precisely
the manner that Miranda contended that the court should,
limiting its review to one for plain error. Under these cir-
cumstances, Miranda is in no position to argue that the
waiver rule is not an adequate ground for the Illinois
Appellate Court’s decision. Cf. DeSilva v. DiLeonardi, 181
F.3d 865, 867 (7th Cir. 1999) (habeas petitioners had for-
20                                               No. 02-3452

feited argument that Article III judge was required to con-
duct extradition proceeding, when at time of extradition
hearing they contended the opposite).
  For these reasons, we conclude that the Illinois Appellate
Court’s disposition of Miranda’s Fourth Amendment claim
rests on an adequate and independent state ground, namely
that he waived the claim when he failed to assert it in a
post-trial motion for a new trial, as required by Illinois law.
Miranda has not argued that an equitable exception would
permit us to reach the merits of his claim notwithstanding
the procedural default. Consequently, federal review of this
claim is barred.
  However, in an abundance of caution, and recognizing the
inconsistency in Illinois cases as to the availability of
appellate review for constitutional claims not preserved in
post-trial motions, we have gone on to consider whether
Miranda enjoyed a full and fair opportunity to litigate his
Fourth Amendment claim in state court. Lest there be any
doubt, our analysis as to the full and fair opportunity rep-
resents an alternative basis for our decision.


B. Full and Fair Opportunity
  So long as a habeas petitioner enjoyed an “opportunity for
full and fair litigation of a Fourth Amendment claim” in
state court, federal habeas review of the claim is barred.
Stone v. Powell, supra, 428 U.S. at 481-82, 96 S. Ct. at 3046.
A petitioner has had the benefit of such an opportunity so
long as (1) he clearly apprised the state court of his Fourth
Amendment claim along with the factual basis for that
claim, (2) the state court carefully and thoroughly analyzed
the facts, and (3) the court applied the proper constitutional
case law to those facts. Pierson v. O’Leary, 959 F.2d 1385,
1391 (7th Cir. 1992); see also Cabrera v. Hinsley, 324 F.3d
527, 531-32 (7th Cir.), cert. denied, 540 U.S. 873, 124 S. Ct.
220 (2003); Hampton v. Wyant, 296 F.3d 560, 563-64 (7th
No. 02-3452                                                 21

Cir. 2002). The full and fair hearing requirement applies
not only at the trial-court level in state court but also on
direct review of the petitioner’s conviction. See Stone, 428
U.S. at 489, 96 S. Ct. at 3050 (“The question is whether
state prisoners—who have been afforded the opportunity for
full and fair consideration of their reliance on the ex-
clusionary rule . . . by the state courts at the trial level and
on direct review—may invoke their claim again on federal
habeas corpus review.”) (emphasis supplied); see also, e.g.,
Hampton, 296 F.3d at 563-64; Turentine v. Miller, 80 F.3d
222, 225-26 (7th Cir. 1996).
   Miranda contends that the Illinois Appellate Court de-
prived him of a full and fair opportunity to litigate his
Fourth Amendment claim in that it failed to carefully and
thoroughly analyze the facts. That failure, in Miranda’s view,
is evidenced by the appellate court’s determination, without
any explanation, that Chavez was not under arrest. Sum-
mary Order at 3. Whether an individual was seized by the
police is a highly fact-specific assessment that requires
consideration of the totality of the circumstances. United
States v. McCarthur, 6 F.3d 1270, 1275-76 (7th Cir. 1993).
We have indicated that when a state court’s Fourth Amend-
ment analysis turns on factual determinations that lack the
fair support of the record, we cannot say that the court
carefully and thoroughly analyzed the facts. Weber v.
Murphy, 15 F.3d 691, 694 (7th Cir. 1994); contra Willett v.
Lockhart, 37 F.3d 1265, 1270 (8th Cir. 1994) (en banc) (“We
conclude that under Stone a federal habeas court consider-
ing a state prisoner’s claim alleging a Fourth Amendment
violation should abstain from reviewing the state court rec-
ords to determine if the state court’s factual findings are
fairly supported by the record as a whole . . . .”); see also
Turentine, 80 F.3d at 225-26 (declining to overrule Weber in
light of Willett). Of course, we presume that a state court’s
factual determinations are correct. 28 U.S.C. § 2254(e)(1);
see Weber, 15 F.3d at 694-95. We have also made clear that
22                                               No. 02-3452

mistakes in a state court’s treatment of a petitioner’s Fourth
Amendment claim are not sufficient, in and of themselves,
to surmount the Stone bar. Turentine, 80 F.3d at 225-26; see
also Hampton, 296 F.3d at 563-64. Stone does not guarantee
a correct outcome on a Fourth Amendment claim but rather
an adequate opportunity to pursue the claim in the state
court system; thus, only if we are convinced that a habeas
petitioner was deprived of that opportunity may we reach
the merits of the claim. Cabrera, 324 F.3d at 531-32. An
“egregious error” in a state court’s Fourth Amendment
decision may suffice for this purpose, Turentine, 80 F.3d at
226, but not for the flaw it exposes in the state court’s
analysis but rather for what it reveals about the bona fides
of the state court’s handling of the Fourth Amendment claim,
Hampton, 296 F.3d at 564. As we explained in Hampton, “a
blunder, no matter how obvious, matters only in conjunction
with other circumstances that imply refusal by the state
judiciary to take seriously its obligation to adjudicate claims
under the fourth amendment.” Id. We shall assume,
without deciding, that if the Illinois Appellate Court’s deter-
mination that Chavez was not arrested lacked any basis in
the record, Miranda may have been deprived of a full and
fair opportunity to litigate his Fourth Amendment claim in
state court.
  We note at the outset that the state trial court never
made a definitive ruling as to whether and when Chavez
was arrested by the police. Chavez was never charged with
a crime, so he was not a party to the state court proceeding.
Nonetheless, the trial court did have occasion to consider
how Chavez was treated by the police in the course of re-
solving Miranda’s motion to quash and suppress. As the
district court pointed out, the trial judge stated that he
thought the police put handcuffs on Chavez; he then added
that he was “not sure” whether Chavez was one of the two
people in the living room of the Perez residence but that
“[t]he two [people] that were in the living room were placed
No. 02-3452                                                  23

into handcuffs.” M37; see R. 17 at 5. In its brief to the
Illinois Appellate Court, the State suggested that the trial
judge was referring to Perez and Miranda, not Chavez. R.
9 Ex. B at 43. But considered in context, the judge’s refer-
ence to the two young men in the living room could only
have meant Chavez and Miranda, for by the time police
officers entered the living room, Perez had already been
handcuffed in the kitchen. Moreover, as the district court
also pointed out, the police had no reason to treat Chavez
differently from Miranda at the Perez residence, as they
had no information at that point implicating anyone but
Perez in the crime. R. 17 at 5. It bears mentioning again
that the police denied having handcuffed or otherwise seized
either Miranda or Chavez at the Perez residence. But the
trial judge discredited that assertion as to Miranda, and he
appears to have likewise discredited it as to Chavez. It seems
altogether likely, then, that the judge would have found
that Chavez was arrested had he made an explicit finding
on that point.
   But if we take it as a given that Chavez, like Miranda,
was illegally arrested at the Perez residence, that does not
necessarily mean that he remained under arrest throughout
the ensuing period of his cooperation with the authorities.
An individual’s wrongful custody can, of course, be brought
to an end, and when such a termination occurs, it can serve
to break the causal link between the illegal arrest and his
subsequent statements to the police. 6 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment,
§ 11.4, text accompanying n.182 (4th ed. 2004)
(“[t]ermination of the illegal custody, as in Wong Sun [v.
United States, 371 U.S. 471, 83 S. Ct. 407 (1963)], qualifies
as an intervening circumstance” that may purge post-arrest
confession of taint of unlawful arrest); see also, e.g., State v.
Miller, 921 P.2d 1151, 1157-58 (Ariz. 1996); Hanna v. State,
591 A.2d 158, 165 (Del. 1991); Sanchez-Velasco v. State, 570
So.2d 908, 914 (Fla. 1990). It is possible, then, that the
24                                               No. 02-3452

Illinois Appellate Court, focusing on the time at which
Chavez made his post-arrest statement implicating
Miranda in the shooting, concluded that Chavez was no
longer under arrest at that point in time and that his state-
ment was untainted by his wrongful arrest. The court’s
statement (“Chavez was not illegally arrested”) is not time-
specific and so does not preclude this possibility. We realize
that the court’s statement could be interpreted differently
(e.g., to mean that Chavez was never arrested). However,
having in mind that our task under Stone is not to decide
whether the court made a mistake in assessing the facts,
but rather whether it committed an error so grave as to
indicate that the court “closed [its] ears and mind[ ] to argu-
ment,” Hampton, 296 F.3d at 564, we believe ourselves
obliged to entertain any reasonable construction of the ap-
pellate court’s opinion. Because it is plausible to construe
the court’s statement as meaning that Chavez was not under
wrongful arrest when he implicated Miranda, we proceed to
consider whether the evidence supported such a finding.
  For his part, the trial judge never reached the question of
whether Chavez remained in custody once he arrived at the
police station and underwent further questioning there.
However, an appellate court is empowered to make a fac-
tual determination, see Cereal Byproducts Co. v. Hall, 155
N.E.2d 14, 16 (Ill. 1958); Ill. Sup. Ct. R. 366(a)(4), and on
habeas review we must grant that determination the same
presumption of correctness as we would to a trial court’s
finding of fact. 28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449
U.S. 539, 546-47, 101 S. Ct. 764, 769 (1981); Mendiola v.
Schomig, 224 F.3d 589, 592 (7th Cir. 2000). Thus, so long as
there was an adequate evidentiary basis in the record for
finding that Chavez was not under arrest when he incul-
pated Miranda, we must defer to that finding and conclude
that the Illinois Appellate Court did not deprive Miranda of
a full and fair opportunity to pursue his Fourth Amendment
claim.
No. 02-3452                                               25

  The district court, in assessing the evidentiary basis for
the Illinois Appellate Court’s analysis, was disadvantaged
by the lack of a complete record of the proceedings in the
trial court on Miranda’s motion to suppress. Based on the
limited record before it and the parties’ arguments, the dis-
trict court assumed that Miranda did not have a full and
fair opportunity to litigate his Fourth Amendment claim in
the Illinois courts, as it was not clear to the court what
basis the appellate court might have had for finding that
Chavez was not arrested. R. 17 at 5-6. We asked the Illinois
Attorney General to supplement the record with a complete
transcript of the proceedings that the trial court conducted
on Miranda’s motion to quash his arrest and suppress his
post-arrest statements. On review of that transcript, we con-
clude that there is fair support in the record for a finding
that Chavez was not under arrest when he implicated
Miranda.
  There was testimony indicating that Chavez was not un-
der arrest at the time he told police that Miranda was the
source of the gun that Perez had used to shoot Ryan. Chavez
himself testified that he was handcuffed at the Perez res-
idence, A171, but that the cuffs were removed at the police
station, A175. Officer Frugoli, who was present at the Perez
residence when Perez was arrested, said that Chavez was
not in cuffs when he was taken to station, was not told he
was under arrest, and in fact was free to go. A83, A109-110,
A115. Detective Schak, who interviewed Chavez at the pol-
ice station, testified that Chavez was not in cuffs, was not
locked in the interview room, was not in custody, and had
come to the station voluntarily. A161-62. Assistant State’s
Attorney Studenroth, who took Chavez’s formal statement
that evening, testified that Chavez was not under arrest.
D7. In view of this testimony, the Illinois Appellate Court
was not without an evidentiary basis to find that Chavez
was no longer in custody by the time he gave the statement
that prompted Miranda to confess his involvement in the
26                                               No. 02-3452

shooting: multiple witnesses testified that Chavez was not
arrested and was not confined at the police station but
rather was voluntarily cooperating with the police, and even
Chavez agreed that the handcuffs were removed once he
arrived at the police station. Moreover, assuming, consis-
tent with this testimony, that Chavez’s illegal arrest had
been terminated upon or shortly after his arrival at the pol-
ice station, his subsequent statement inculpating Miranda
could plausibly be deemed the product of free will notwith-
standing the initial illegal arrest. See 6 LaFave, supra,
§ 11.4 n.182 (coll. cases).
   Certainly there was contrary evidence presented to the
trial court. Chavez not only testified that he was handcuffed
at the Perez home, but both he and his father gave testi-
mony indicating that he was not free to leave the police
station even after the handcuffs were removed. Chavez
testified that he was told he could go home after he gave his
formal statement to the Assistant State’s Attorney, A177, but
ultimately he was kept at the station overnight (in anti-
cipation of his grand jury testimony the following morning)
even after he gave that statement, A178. His father con-
firmed that Chavez was detained at the station overnight
against the family’s wishes. A189-91. It also bears noting
that at 15 years of age, Chavez might not have appreciated
his ability to leave the police station even if he was not
overtly coerced into staying. In view of this evidence, a court
reasonably could have concluded that Chavez remained un-
der arrest when he gave the statement implicating Miranda.
  However, the question before us is not whether (in our
view) the Illinois Appellate Court was right or wrong to find
that Chavez was not under arrest, but whether that finding
was so gravely mistaken, in view of the record evidence, as
to suggest that the Illinois Appellate Court was unwilling
to engage in a good faith review of Miranda’s Fourth
Amendment claim. See Cabrera v. Hinsley, supra, 324 F.3d
at 531-32; Hampton v. Wyant, supra, 296 F.3d at 563-64.
No. 02-3452                                              27

Because the court’s finding could be construed as one
focused on the point in time at which Chavez gave his
statement inculpating Miranda, and because there was at
least some evidentiary support for the court’s finding so
construed, we are bound to answer this question in the nega-
tive. Our inquiry is therefore at an end. Chavez had a full
and fair opportunity to litigate his Fourth Amendment
claim in state court, and thus, pursuant to Stone v. Powell,
further review of that claim in federal court is foreclosed.


                            III.
  Having concluded that the Illinois Appellate Court re-
solved Miranda’s Fourth Amendment claim on an adequate
procedural ground independent of the merits of that claim
and, alternatively, that Miranda had a full and fair oppor-
tunity to litigate his Fourth Amendment claim in state
court, we AFFIRM the district court’s judgment denying
Miranda’s petition for a writ of habeas corpus. We thank
Miranda’s appointed appellate counsel for their vigorous
advocacy on his behalf.


A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-20-05
