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

No. 01-4002
WILLIAM G. CABRERA,
                                                Petitioner-Appellee,
                                  v.

CHARLES L. HINSLEY, WARDEN,
                                            Respondent-Appellant.
                           ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 97 C 2990—Joan H. Lefkow, Judge.
                           ____________
     ARGUED JANUARY 9, 2003—DECIDED MARCH 31, 2003
                     ____________


    Before RIPPLE, ROVNER, and EVANS, Circuit Judges.
  EVANS, Circuit Judge.       The district court granted
William G. Cabrera’s petition, pursuant to 28 U.S.C. § 2254,
for a writ of habeas corpus as to convictions in the circuit
court of Cook County, Illinois, for burglary, robbery, and
murder. The State appeals.
  The present petition concerns convictions in 1983, as a
result of which Cabrera received sentences of 60 years



  Our docket was modified on January 6, 2003, to reflect that
Warden Charles L. Hinsley, and not Warden George C. Welborn,
now has custody of Mr. Cabrera.
2                                               No. 01-4002

imprisonment for murder and 14 years each for robbery
and burglary, the latter two reduced to 7 years by the Illi-
nois Appellate Court. People v. Cabrera, 480 N.E.2d 1170
(Ill. App. 1985). All sentences run concurrently. In addi-
tion, Cabrera is serving a natural life sentence for an
unrelated murder conviction. Because of the separate
murder conviction, the relief in this case was conditioned
on “the invalidation of the other, presumptively lawful,
sentences authorizing his continued confinement.”
  The evidence at trial showed that on the night of Febru-
ary 10, 1981, the office of the Assyrian National Founda-
tion in Chicago was broken into, money was stolen, and
Yoel A. Keena, a 74-year-old man staying as a guest at
the Foundation, was killed by strangulation and battery
with a blunt instrument. At the crime scene, detectives
found a receipt for traveler’s checks issued in Keena’s name.
Later, the detectives learned that the checks were used
to purchase clothing at a store in Chicago the next day.
They questioned Derrick Moore, the assistant sales man-
ager of the store, and learned that three men had come
into the store at about 8 p.m. on February 11. A man later
identified as Ruben Lopez, using Keena’s traveler’s checks,
purchased a red jacket, a white shirt with a Popeye logo,
and a necktie. Moore saw the men go into another store
and emerge with more merchandise. On February 23,
Moore looked through police mug shots and identified a
photograph of Cabrera as one of the men with Lopez
when he cashed the check. The police arrested Cabrera
at his home without a warrant, and a search of his home
at the time of his arrest came up dry. Cabrera waived his
Miranda rights, however, and gave a series of contradic-
tory statements.
  With the consent of his mother and sister, the police
searched Lopez’s apartment, where a shirt with a Popeye
logo was found. They also found an identification card
that Moore (the fellow from the store) said Lopez used in
No. 01-4002                                             3

cashing the traveler’s checks. Later the red jacket was
found as well.
  On February 26 Cabrera made another statement, telling
the detectives that he and Lopez had entered the Founda-
tion through a broken window. Lopez told Cabrera to
search the front of the building. Cabrera found a metal
cash box, which he pried open. He took the $40 which was
in the box. While Cabrera was in the front office, Lopez
went to the back, where he found Keena. Cabrera saw
Lopez strike Keena twice. Cabrera then searched Keena’s
pockets, where he found the traveler’s checks. Lopez took
the checks and Cabrera kept the $40. After making this
statement, Cabrera consented to a search of his apart-
ment, where the police found two pairs of pants Lopez
had bought for him. Cabrera was convicted of murder,
robbery, and burglary.
  After exhausting his state court remedies, Cabrera filed
the present petition, which included the two claims before
us: whether probable cause existed for Cabrera’s war-
rantless arrest (which led to several incriminating state-
ments) and whether the prosecution proved beyond a
reasonable doubt that he was guilty of burglary. The Illi-
nois courts found that probable cause existed for the
arrest and that the evidence supported the burglary
conviction. As we said, the district court conditionally
granted the writ.
  Section 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act (AEDPA) under which this
petition was brought, provides that habeas relief may not
be granted unless the state court proceeding
   (1) resulted in a decision that was contrary to, or
   involved an unreasonable application of, clearly estab-
   lished Federal law, as determined by the Supreme
   Court of the United States; or
4                                               No. 01-4002

    (2) resulted in a decision that was based on an unrea-
    sonable determination of the facts in light of the
    evidence presented in the State court proceeding.
However, Cabrera’s claim regarding his arrest faces a
preliminary hurdle. Fourth Amendment claims are subject
to the strictures set out in Stone v. Powell, 428 U.S. 465
(1976). And those claims, we have recently said, are out-
side the scope of the statute:
    The AEDPA’s changes to § 2254(d) apply only to cases
    within the scope of § 2254(a) . . . and Stone is based on
    an interpretation of § 2254(a) that treats inaccurate
    administration of the exclusionary rule as outside the
    scope of that statute.
Hampton v. Wyant, 296 F.3d 560, 563 (7th Cir. 2002).
   Stone limited the role of the federal courts in evaluating
Fourth Amendment claims of state prisoners who, relying
on the exclusionary rule, contend that allegedly unconsti-
tutionally seized evidence should not have been used
against them. The Court noted that the exclusionary rule,
whose purpose is deterrence of illegal police conduct,
actually hampers the central purpose of a criminal trial,
which is determining the guilt or innocence of a defen-
dant. The Court reasoned that in the context of habeas
petitions, the benefit of the exclusionary rule is minimal
compared to the substantial societal costs of applying
it. Therefore, “where the State has provided an opportu-
nity for full and fair litigation of a Fourth Amendment
claim, a state prisoner may not be granted federal habeas
corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his
trial.” At 494. It sounds simple but has, in fact, caused
considerable consternation over what exactly “full and
No. 01-4002                                                      5

fair” means.1 The only help in Stone is a footnote to a prior
case: “Cf. Townsend v. Sain, 372 U.S. 293 (1963).” And
of course the value, generally, of “Cf.” citations is often
only revealed in the eye of the beholder.
  Recently, we have waded again into the debate in an
attempt to clarify some of our earlier cases. Our tradi-
tional formulation was that a petitioner had a full and
fair opportunity to litigate if
    (1) he has clearly informed the state court of the factual
    basis for that claim and has argued that those facts
    constitute a violation of his fourth amendment rights
    and (2) the state court has carefully and thoroughly
    analyzed the facts and (3) applied the proper constitu-
    tional case law to the facts.
Pierson v. O’Leary, 959 F.2d 1385, 1391 (7th Cir. 1992).
This test spawned many arguments, including one that
the litigation was “full and fair” only if the state court
decided the issue correctly. This erroneous interpreta-
tion of Stone was pretty clearly sent packing by our deci-
sion last year in Hampton. In Hampton we observed that
the Pierson approach nullifies the holding of Stone and
leads to collateral relief whenever the search violates the
fourth amendment. Even an egregious error would not by
itself justify habeas relief:
    [A] blunder, no matter how obvious, matters only in
    conjunction with other circumstances that imply re-


1
   See, e.g., Janecka v. Cockrel, 301 F.3d 316 (5th Cir. 2002);
Sanna C. DiPaolo, 265 F.3d 1 (1st Cir. 2001); Machacek v.
Hofbauer, 213 F.3d 947 (6th Cir. 2000); Ortiz-Sandoval v. Gomez,
81 F.3d 891 (9th Cir. 1996); Willett v.Lockhart, 37 F.3d 1265 (8th
Cir. 1994); Capellan v. Riley, 975 F.2d 67 (2d Cir. 1992); Boggs
v. Bair, 892 F.2d 1193 (4th Cir. 1989); U.S. ex rel. Petillo v. New
Jersey, 562 F.2d 903 (3d Cir. 1977).
6                                                No. 01-4002

    fusal by the state judiciary to take seriously its obliga-
    tion to adjudicate claims under the fourth amendment.
296 F.3d at 564.
  Unsatisfied by this formulation, the State wants us to
take this opportunity to further clarify the standard. The
concern is that Hampton’s focus continues to be on the
quality of the hearing. The State says that a focus on the
quality of the hearing cannot be what Stone envisioned;
rather, the exception must turn on whether the State
provides a mechanism under which to litigate a Fourth
Amendment claim. If it does, Stone precludes habeas
review.
  Unlike the State, we do not read Hampton as implying
federal courts must examine in any significant detail the
quality of the hearing. Quality, after all, is a word which
can lead us right back to confusion as to whether the
state judge had to arrive at the right decision in order for
the hearing to pass muster. But it is true that Hampton
stops just short of what the State urges. Hampton means
that even if the State provides a mechanism under which
to litigate a claim, Stone would not block habeas review if
the mechanism was in some way a sham. For instance,
Stone would not block habeas review if the judge had his
mind closed to the necessity of a hearing, or was bribed,
or decided, as Hampton says, that probable cause is not
required in Illinois, or was sleepwalking (another example
from Hampton), or in some other obvious way subverted
the hearing. Hampton does not mean, however, that fed-
eral courts will examine whether the judge seemed to
have done some quality preparation for the hearing or
had a perfect understanding of the fine points of search
and seizure law. Absent a subversion of the hearing proc-
ess, we will not examine whether the judge got the deci-
sion right. But we continue to believe that we would be
wrong to close our eyes entirely to possible abuses and to
No. 01-4002                                                 7

say simply that Stone applies if the State allows motions
to suppress evidence to be brought, never mind that a
particular judge undermined the process in some disturb-
ing way. In short, “full and fair” guarantees the right to
present one’s case, but it does not guarantee a correct
result.
   We also note in passing that Cabrera’s case is an ex-
ample of Stone’s concern with limiting the exclusionary
rule to its intended purpose of deterring police miscon-
duct. Cabrera’s crime was committed 22 years ago, in 1981;
he was convicted in 1983. One could certainly argue that
the deterrent effect of overturning his 19-year-old convic-
tion is outweighed by the damage to society which could
flow from reopening the suppression hearing issues which
were resolved so long ago. Viewed from this perspective,
our case illustrates what Stone was talking about when
it said that the exclusionary rule “if applied indiscrimi-
nately . . . may well have the opposite effect of generating
disrespect for the law and administration of justice.” At 491.
  Applying the Hampton standard to this case, we find
that Cabrera had a full and fair opportunity to litigate
his claim that his arrest was illegal. He raised the issue
in a suppression hearing prior to trial; the Illinois Appel-
late Court, Cabrera, 480 N.E.2d 1170, and the Illinois
Supreme Court, People v. Cabrera, 508 N.E.2d 708 (1987),
also considered the issue. There is no indication that
these courts were careless of Cabrera’s right to present
his claim. Cabrera contends that the fact that the basis
of the decision changed from one court to another shows
that the determinations did not meet the test for a full
and fair hearing. Particularly, he points out that the Illi-
nois Supreme Court assumed that the police were aware
of his criminal record, a finding he says the evidence did
not support. Whether there was anything in the record
which would allow the inference that the police knew of
8                                              No. 01-4002

his record is subject to debate. What is clear, however,
is that a finding that there was, even if erroneous, does
not support a piercing of Stone to send a federal court
sifting through the evidence to see whether the Illinois
courts were, in its view, correct in determining that proba-
ble cause existed.
  The other issue before us—whether the evidence is
sufficient to sustain the burglary conviction—is within
the ambit of § 2254(a) and (d), which means that habeas
relief may be granted only if the state court proceeding
resulted in a decision which was contrary to, or an unrea-
sonable application of, established federal law as deter-
mined by the Supreme Court, or was based on an unreason-
able determination of the facts.
  Before we launch into an analysis of this issue, we ad-
mit some bewilderment about being asked to evaluate
the burglary conviction because, on the surface at least,
it would seem to be an exercise in futility. We under-
stand that the Supreme Court determined in Benton v.
Maryland, 395 U.S. 784 (1969), that a habeas petition is
not made moot by the existence of a concurrent sentence
(which would mean that release from custody is not pos-
sible even were the petition granted). But here, Cabrera
has three other concurrent sentences—two murder con-
victions and a robbery conviction. If he had prevailed on
his Fourth Amendment argument in this petition, one of
the murder convictions, the robbery conviction, and the
burglary conviction would all have been set aside. If
that had happened, only one conviction would have stood
between him and freedom, making it reasonable to con-
sider the Fourth Amendment claim in the current petition.
But it is also true that if he had prevailed on his claim
that his arrest was invalid, there would be no reason to
discuss the burglary conviction separately. And now that
he has failed (before us) on the Fourth Amendment claim,
No. 01-4002                                                 9

it is hard to see, in the real world, how setting aside his
burglary conviction does him any good. No doubt he has
served his time. His was a 7-year sentence imposed 20
years ago. And the possibility of realistic collateral conse-
quences from the burglary conviction are remote at best
and probably, more accurately, nonexistent.
  What we find even more bewildering is what the State
has to gain by resisting this claim. The claim is highly fact-
specific, and granting the writ in this case seems unlikely
to change the course of Illinois law.
  To explain: In Illinois, burglary is defined as knowingly
entering a building “with the intent to commit therein a
felony or theft.” The information (the charging document
in Illinois) alleged that Cabrera “committed the offense
of burglary in that he, without authority, knowingly en-
tered into a building, to wit: the dwelling of Yoel Keena
with the intent to commit the offense of robbery therein.”
Robbery, then, is the felony that Cabrera is charged with
intending to commit when he entered the building. The
problem is that the building was not a residential building
and there was no evidence that Cabrera and Lopez knew
Keena or anyone else was living there when they broke
in. Therefore, Cabrera’s argument is that he could not
have had the intention to commit robbery when he en-
tered the building, and without that intention, he cannot
be guilty of burglary as it was charged. During the trial,
the prosecutor asked that the jury be instructed that
Cabrera could be convicted of burglary if he intended to
enter the building with the intent to commit robbery or
theft. The judge refused—we can’t understand why—and
the jury was instructed that a person commits burglary
when he enters a building to commit robbery. The jury
was instructed that robbery was the taking of property
from a person or the presence of another by the use of
force or threatened force. The jury convicted Cabrera of
burglary (as well as robbery and murder).
10                                              No. 01-4002

  Cabrera’s constitutional claim in the present petition is
that the evidence of his intent to commit robbery was
insufficient to sustain the burglary conviction. In fact, he
says it was nonexistent.
  The district court granted the petition with regard to
this claim, saying that the decision of the state court was
“either ‘contrary to’ Jackson [v. Virginia, 443 U.S. 307
(1979)], or, if we assume that its standard was functionally
equivalent to Jackson’s, it was an unreasonable applica-
tion of it.”
  The Jackson standard is that a petitioner is “entitled to
habeas corpus relief if it is found that upon the record
evidence adduced at the trial no rational trier of fact
could have found proof of guilt beyond a reasonable doubt.”
At 324. The Illinois Supreme Court said that the deter-
mination of the jury “will not be disturbed on review
unless the evidence is so improbable as to cast reason-
able doubt on the guilt of the defendant.” 508 N.E.2d at
716. Is the latter “contrary to” the former? Cabrera does
not explain in any detail how the two are meaningfully
different. The Illinois court was using the right burden of
proof even though the phrase from Jackson was not par-
roted. We do not see this standard as contrary to Jackson.
   So the question becomes whether the determination by
the Illinois Supreme Court that the evidence was sufficient
to sustain the burglary conviction is an unreasonable
determination of the facts. The Illinois courts recognize
that evidence of intent is usually not direct. For that
reason, it may be proved circumstantially by inferences
reasonably drawn from the circumstances of the defen-
dant’s conduct. People v. McKinney, 631 N.E.2d 1281
(Ill. App. 1994). Those circumstances include “the time,
place and manner of entry into the premises, the defen-
dant’s activity within the premises, and any alternative
explanations offered for his presence.” People v. Richardson,
470 N.E.2d 1024, 1027 (1984).
No. 01-4002                                              11

  The application of this principle can be seen in People v.
Zuniga, 425 N.E.2d 1094 (Ill. App. 1981). The defendant
entered a church basement through a broken window. A
priest noticed the broken window and entered the church,
where he encountered the defendant. The defendant struck
the priest with a metal rod and demanded his money.
Zuniga made the argument which Cabrera makes
here—that he did not enter the church with the intent to
commit robbery—and the court found that the requisite
intent could be inferred by what happened inside the
church. The issue was one for the jury.
  On the other hand, intent could not be inferred from the
defendant’s actions in People v. Toolate, 461 N.E.2d 987
(1984). Toolate was charged with burglary with intent
to commit a felony—in this case rape. The sole issue
was whether he intended to commit rape when he know-
ingly and without authority entered a woman’s home.
Because he did nothing inside the home that pointed
toward rape, the court found the evidence insufficient:
    Strange as Toolate’s behavior was, the record contains
    no evidence whatever that he used force against or that
    he intended to have sexual intercourse with Debbie
    Sue. The best evidence that Toolate did not intend
    to engage in sexual activity by force is that there was
    no force and no threat of force, no sexual activity and
    no threats, promises, or suggestion of any kind. The
    defendant had no weapon. He did not harm or threaten
    to harm either Debbie Sue or the children. There was
    no sexual contact here. Presumably Debbie Sue was
    clad in no more than night-clothes, but the record is
    silent on this point. Whatever she was or was not
    wearing, Toolate did not ask her to undress, and did
    not attempt to undress her. He was fully clothed,
    including a jacket, and he did not remove any of his
    own clothing. He did not caress or fondle her, or be-
    gin any sexual activity.
At 989.
12                                             No. 01-4002

  In Cabrera’s case, on the other hand, there is unquestion-
ably evidence of robbery. From that, a jury could reasonably
conclude that Cabrera and Lopez entered the building
with the intent to commit any number of offenses, includ-
ing robbery.
  On this issue, we decide only whether the Illinois Su-
preme Court decision was based on an unreasonable
determination of the facts in light of the evidence pre-
sented at trial. We cannot say it was. Therefore, the
decision of the district court is REVERSED and the case
is REMANDED to the district court for entry of an order
denying Cabrera’s petition for a writ of habeas corpus.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—3-31-03
