Monica Cosby v. MARY SIGLER , Warden, Dwight Correctional Center,Œ

ΠMary Sigler, the current warden of the Dwight Correctional
Center, has been substituted for Alyssa B. Williams as respondent
pursuant to Fed. R. App. P. 43(c).
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3331
M ONICA C OSBY ,
Petitioner-Appellant,
v.
M ARY S IGLER , Warden, Dwight
Correctional Center,Œ
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 2077—Blanche M. Manning, Judge.
____________
A RGUED N OVEMBER 8, 2005—D ECIDED J ANUARY 18, 2006
____________
Before BAUER , M ANION , and E VANS , Circuit Judges.
M ANION , Circuit Judge. Monica Cosby was convicted in
Illinois state court of first-degree murder for helping her
boyfriend kill his mother and conceal her body. After
pursuing a direct appeal and seeking collateral relief in the
Illinois courts, Cosby filed a petition for a writ of habeas

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2 No. 04-3331
corpus in federal court. The district court denied the
petition. Cosby appeals. We affirm.
I.
The gruesome facts of this case challenge the imagination.
Monica Cosby began living with her boyfriend, Kmuel (or
Kevin) King shortly after Halloween in 1995. They shared
an apartment that Cosby thought was Kmuel’s, but it
actually belonged to Kmuel’s mother, Bobbie Jean King.
Cosby’s three children, ages seven, four, and one at the time,
who had been staying with Cosby’s parents, joined her there
shortly before Thanksgiving. Kmuel’s mother soon returned
to reside in the apartment with her own infant son. This
combination left three adults and four young children in the
one-bedroom, one-bathroom apartment. Bobbie relin-
quished use of the bedroom and slept in another area on the
floor next to her own infant’s crib.
Not surprisingly, tensions peaked around Christmas
because Bobbie, who was not a Christian, did not want
a Christmas tree in her home. Bobbie was already highly
irritated by the overcrowded conditions imposed upon
her apartment. Although Cosby testified that Bobbie
never objected to the additional residents, other evidence
suggested that Bobbie insisted that Cosby and her chil-
dren leave. Regardless, Cosby testified that she planned
to leave anyway because of a breakdown in her relationship
with Kmuel shortly after Christmas.
What happened next is gleaned primarily from Cosby’s
testimony at trial. In the early hours of December 27, 1995,
Cosby and Kmuel ingested alcohol and marijuana at a
gathering in another apartment. After they returned, Bobbie
was upset due to their late arrival. Cosby testified that

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No. 04-3331 3
Kmuel and his mother began to argue, while Cosby ate cake
with her children in the kitchen and listened to the radio.
Kmuel then entered the kitchen and informed Cosby that he
had just killed his mother, doing it “for [her].”
Cosby and Kmuel then went to the bathroom, where
they viewed the body. Blood from Bobbie’s beaten head
covered the floor. At Kmuel’s request, Cosby fetched a
plastic bag. Although in a statement to the police Cosby
stated that she placed the bag over Bobbie’s head, at
trial she testified that Kmuel did it. Kmuel tied an elec-
trical cord around the bag. Together, they maneuvered the
body into the bathtub, placing plastic bags of laundry
over her. They also bound Bobbie’s arms and legs. Cosby
and Kmuel then engaged in sexual relations on the living
room floor while the children were asleep in the bedroom.
The next morning the body remained in the bathtub, even
as the children used the bathroom. Several times during the
day, while Cosby was present in the apartment, Bobbie’s
daughter came looking for Bobbie. The police also visited to
investigate the disappearance. In the wake of these inqui-
ries, Cosby and Kmuel decided to relocate and ultimately
dispose of the body. They placed the victim in a shopping
cart piled with laundry bags, laundry detergent, and fabric
softener. They then moved the shopping cart to a neighbor’s
closet, claiming that they needed a place to store some dirty
laundry. Cosby later led a friend to the body. The police
were alerted and arrested both Cosby and Kmuel on the
evening of December 27, 1995.
Cosby’s mother arranged for an attorney, a family
friend who did not practice criminal law, to visit her at the
police station that night. The attorney conferred with Cosby
for approximately forty-five minutes. As the attorney
departed at 12:45 a.m., he advised the officers that Cosby

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4 No. 04-3331
was invoking her right to remain silent. Cosby also asserted
this right. The officers returned about two hours later,
informed her of her Miranda rights, and confronted Cosby
with statements made by Kmuel. Cosby made two state-
ments, one at 3:00 a.m. and another, after again being
informed of her Miranda rights, at 9:00 a.m. The two state-
ments each recounted the preceding events in substantially
identical detail, except that in the 9:00 a.m. statement, Cosby
stated that she placed the bag over the victim’s head. Cosby
was subsequently charged with first-degree murder and
concealment of a homicidal death.
Cosby’s trial counsel prepared a motion to suppress the
statements, but filed it with an incorrect case number.
The motion was never re-filed or decided by the court. At
the bench trial, the prosecution offered the 9:00 a.m. state-
ment, but not the 3:00 a.m. statement, into evidence. Cosby’s
counsel did not object. Instead, Cosby’s counsel pursued a
defense that was consistent with the statements: a mistake-
of-fact defense. He argued that Cosby believed Bobbie to be
dead when she or Kmuel placed the bag over Bobbie’s head
and bound her limbs. Since Cosby believed the victim was
dead, counsel argued, she could not be guilty of first-degree
murder. At the bench trial, the medical examiner testified
that Bobbie was still alive when the bag and bindings were
secured. She died as a result of strangulation, with blunt
force trauma to the head as a major contributing factor.
Cosby testified and, contrary to her earlier statement,
claimed that Kmuel placed the bag over Bobbie’s head. The
judge found Cosby to be incredible and found her guilty on
both counts.
After her direct appeal and state collateral proceed-
ings, Cosby filed a petition for a writ of habeas corpus in
federal district court pursuant to 28 U.S.C. § 2254. In her

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No. 04-3331 5
petition, she asserted her actual innocence and claimed
ineffective assistance of counsel, as well as violations of
her right to remain silent, her right to counsel, and her right
to due process. The district court denied the petition, but
granted a certificate of appealability. This appeal followed.
II.
At the outset, we note that the district court only certified
one issue for appeal: whether Cosby’s “counsel was ineffec-
tive for failing to seek suppression of her statement because
it was taken in violation of her right to counsel and her right
to remain silent.” Before this court, Cosby briefed claims
regarding her right to counsel and her right to remain silent
as independent issues. If a petitioner “includ[es] issues in its
briefs that were not specified in the certificate,” we construe
this as a request “to amend a certificate to include addi-
tional issues.” Ouska v. Cahill-Masching, 246 F.3d 1036, 1045
(7th Cir. 2001) (citations omitted). As discussed below,
Cosby fails to make a “substantial showing of the denial of
a constitutional right” regarding her right to counsel or her
right to remain silent. 28 U.S.C. § 2253(c)(2). We therefore
decline to amend the certificate and address these claims
only in the context of her counsel’s alleged ineffectiveness.
We review the district court’s denial of the petition for a
writ of habeas corpus de novo. Balsewicz v. Kingston, 425
F.3d 1029, 1031 (7th Cir. 2005) (citation omitted). Habeas
corpus relief is warranted only if the state court adjudication
“ ’[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 upon an
unreasonable determination of the facts in light of the

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6 No. 04-3331
evidence presented in the State court proceeding.’ ” Id.
(quoting 28 U.S.C. § 2254(d)).
Cosby argues that her trial counsel was ineffective and
that the state court’s determination to the contrary was an
unreasonable application of Strickland v. Washington, 466
U.S. 668 (1984). To demonstrate ineffective assistance of
counsel under the familiar standard of Strickland, Cosby
“must show that [her] counsel’s performance was deficient
and that the deficient performance prejudiced [her] de-
fense.” Martin v. Grosshans, 424 F.3d 588, 590 (7th Cir. 2005)
(citing Strickland, 466 U.S. at 687). As noted, Cosby claims
that the 9:00 a.m. statement was inadmissible and her
counsel’s failure to suppress it constituted ineffective
assistance. To address this claim, the Appellate Court of
Illinois began by examining whether there was a reasonable
probability that the motion to suppress would have been
granted. See A.M. v. Butler, 360 F.3d 787, 795 (7th Cir. 2004)
(“If there was no underlying constitutional violation, a
motion to suppress would have been futile and counsel
could not be viewed as ineffective for failing to present such
a motion.” (citation omitted)).
In considering the potential for suppression based on an
alleged violation of the right to remain silent, the Illinois
court relied on Michigan v. Mosley, 423 U.S. 96 (1975). Under
Mosley, if a suspect invokes the right to remain silent, the
authorities must scrupulously honor the suspect’s right to
cut off questioning, but may resume questioning in certain
circumstances. See United States v. Schwensow, 151 F.3d 650,
658 (7th Cir. 1998) (citing Mosley, 423 U.S. at 102-05). In
Mosley, the Supreme Court identified several factors rele-
vant to considering whether questioning may resume after
an individual invokes the right to silence: “the amount of
time that lapsed between interrogations; the scope of the

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No. 04-3331 7
second interrogation; whether new Miranda warnings were
given; and the degree to which police officers pursued
further interrogation once the suspect had invoked his right
to silence.” Id. (citing Mosley, 423 U.S. at 104-05); see also
United States v. Gillaum, 372 F.3d 848, 856 (7th Cir. 2004).
Applying these factors, the Illinois court noted that although
Cosby did invoke her right to remain silent, the police
scrupulously honored her right, ceasing questioning for
over two hours. The Illinois court also noted that the officers
gave Cosby fresh Miranda warnings before she made the
3:00 a.m. statement. The Illinois court determined that this
statement “would not have been subject to suppression.”
Furthermore, as the Illinois court noted, the 3:00 a.m.
statement was not admitted at trial; only the later 9:00 a.m.
statement was admitted. The Illinois court further deter-
mined that the 9:00 a.m. statement, which also occurred
after additional Miranda warnings, was similarly not a
violation of her right to remain silent.
This determination was not an unreasonable applica-
tion of Mosley. The Illinois court considered the proper
Supreme Court standard and applied the standard to the
facts of this case in a reasonable manner. Cosby appears
to argue that the application was unreasonable because
the state court did not consider additional facts, such as that
she was not provided with food or drink, was left chained
to a wall in an interview room, and was informed that she
would be charged based on Kmuel’s statement if she
remained silent. Nothing in the record suggests that Cosby
requested food or water. To the contrary, her statement
indicated that she was given water and “refused any other
food or drink.” Furthermore, her location in an interview
room and the confrontation with Kmuel’s statements does
not render the Illinois court’s determination an unreason-
able application of the law. Prior to making her statement,

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8 No. 04-3331
the police did not disturb Cosby for over two hours, and for
approximately forty-five minutes before that period, she
conferred with an attorney. She was also permitted to use
the bathroom accompanied by a female officer. Although
the police informed her of Kmuel’s statement, there is no
indication that questioning was resumed in an attempt to
“wear down” Cosby’s “will to remain silent.” Schwensow,
151 F.3d at 659. Notably, the assertion that she would be
charged if she remained silent was made in the presence of
the attorney who visited her, and she reasserted her right to
remain silent. Under the circumstances, the Illinois Appel-
late Court reasonably concluded that Cosby’s 9:00 a.m.
statement admitted at trial was not taken in violation of her
right to remain silent under Mosley.
Cosby also claims that her statement should be sup-
pressed because it was taken in violation of her right to
counsel. If a suspect invokes the right to counsel, “ ’the
interrogation must cease until an attorney is present’ ” or the
right is waived. Edwards v. Arizona, 451 U.S. 477, 482 (1981)
(citing Miranda v. Arizona, 384 U.S. 436, 474 (1966)); see also
Jackson v. Frank, 348 F.3d 658, 662-63 (7th Cir. 2003). The
Supreme Court has held that “[i]nvocation of the Miranda
right to counsel ‘requires, at a minimum, some statement
that can reasonably be construed to be an expression of a
desire for the assistance of an attorney.’ ” Davis v. United
States, 512 U.S. 452, 459 (1994) (quoting McNeil v. Wisconsin,
501 U.S. 171, 178 (1991)). The statement “must unambigu-
ously request counsel.” Id. at 459. Furthermore, “[u]nless the
suspect actually requests an attorney, questioning may
continue.” Id. at 462. This court has elaborated that an
“attorney’s involvement does not serve to automatically
invoke [a suspect’s] right to counsel under Miranda, for
McNeil [v. Wisconsin, 501 U.S. 171, 178 (1991)] still requires
that there be an expression of the suspect’s wish” for counsel.

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No. 04-3331 9
United States v. McKinley, 84 F.3d 904, 910 (7th Cir. 1996). In
this case, Cosby never made a verbal statement requesting
an attorney. An attorney met with her at the police station,
but the attorney himself said nothing about Cosby’s right to
counsel, even when invoking her right to remain silent. The
simple fact that Cosby conferred with an attorney in these
circumstances is insufficient to constitute a statement
invoking her right to counsel. Id. Cosby does not claim that
she requested to speak with the attorney again, or indicated
that she was not comfortable with the interroga-
tion proceeding without counsel present. Therefore, there is
not a reasonable probability that a motion to suppress
on this ground would have succeeded.
Additionally, Cosby’s trial counsel considered the 9:00
a.m. statement helpful to the defense because it corrobo-
rated Cosby’s claim that she thought Bobbie was dead when
she assisted in bagging and binding her. Thus, electing not
to suppress the statement did not constitute deficient
performance, but sound trial strategy. Strickland, 466 U.S. at
689 (“Judicial scrutiny of counsel’s performance must be
highly deferential . . . . [T]he defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” (internal
quotation omitted)).
Cosby’s claim also fails the second part of the Strickland
test because she cannot demonstrate that her counsel’s
decision not to suppress the statement prejudiced her.
Cosby testified at trial, confirming almost all of the facts
admitted through her 9:00 a.m. statement, except for
insisting that Kmuel placed the bag over his mother’s
head. In her brief, Cosby argues that she would not have
testified if her statement had been suppressed, and that the
failure to suppress therefore prejudiced her. Cosby fur-
ther argues that the state bears the burden of showing that

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10 No. 04-3331
her testimony was not compelled by the admission of the
statement, citing Harrison v. United States, 392 U.S. 219, 224-
25 (1968). In Harrison, the defendant testified after his
illegally obtained confession was admitted into evidence. As
discussed above, Cosby’s 9:00 a.m. statement was not taken
in violation of her right to remain silent or her right to
counsel. Since her statement was not illegally obtained, and
therefore not improperly admitted, the state bears no such
burden. Furthermore, Cosby’s claim that she would not
have testified is not supported by the record. The only
statement in Cosby’s affidavit relating to her decision to
testify states, “[o]n the day I testified, [trial counsel] spent
about 15 minutes with me . . . reviewing what I would say,
and at the same time deciding whether I should testify at
all.” This is insufficient to demonstrate that Cosby felt
compelled to testify because her statement was admitted
into evidence. Thus, Cosby cannot show that she was
compelled to testify, and therefore prejudiced, by the failure
of her counsel to move for suppression. Finally, Cosby’s
defense was a mistake-of-fact: she thought the victim was
already dead when she became involved. She has main-
tained this defense in her habeas corpus petition before the
district court, as she argued for her actual innocence. Since
the statement corroborated this mistake-of-fact defense, it is
not evident that she was compelled to testify because of the
statement. Therefore, Cosby has failed to demonstrate that
she was prejudiced by the failure to suppress the statement.
Cosby also argues that her counsel’s choice of the mistake-
of-fact defense, and hence the decision not to suppress the
statement, was deficient because it rested on inadequate
investigation of the medical evidence. Cosby claims that her
counsel was surprised by the medical examiner’s testimony
that the victim was alive when she was bagged and bound.
Since she was alive, Cosby argues, this undermined the

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No. 04-3331 11
viability of a mistake-of-fact defense. The district court
separately addressed the issue of trial strategy and denied
a certificate of appealability on the issue of whether “trial
counsel should have reassessed his trial strategy after the
medical examiner testified that Bobbie was alive when
Cosby put the plastic bag over Bobbie’s head.” The district
court reasoned that Cosby’s “attack on her lawyer’s trial
strategy does not present a substantial constitutional
question because the state court’s resolution of this is a
correct and reasonable application of Strickland.” Again, we
construe the briefing of this issue as a request “to amend a
certificate [of appealability] to include additional issues.”
Ouska, 246 F.3d at 1045. We agree with the district court that
this issue does not present a substantial constitutional
question. 28 U.S.C. § 2253(c)(2). Cosby fails to show that
there is a substantial constitutional question arising from
her counsel’s allegedly inadequate investigation. In particu-
lar, Cosby fails to show that this omission affected the
outcome of the trial. We therefore decline to issue a certifi-
cate of appealability on this issue.
III.
The Appellate Court of Illinois’s denial of Cosby’s ineffec-
tive assistance of counsel claim based on the failure to
suppress her custodial statement that was admitted at trial
was not contrary to or an unreasonable application of
Supreme Court precedent. Accordingly, we A FFIRM the
judgment of the district court.

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12 No. 04-3331
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-18-06

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