In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 15-2888
DARRYL J. SUTTON,
                                                 Petitioner-Appellee,

                                 v.

RANDY PFISTER, Warden, Stateville Correctional Center,
                                       Respondent-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
         No. 09 C 8035 — Sharon Johnson Coleman, Judge.
                     ____________________

     ARGUED MAY 26, 2016 — DECIDED AUGUST 24, 2016
                     ____________________

   Before WOOD, Chief Judge, and MANION and HAMILTON,
Circuit Judges.
     WOOD, Chief Judge. Daryl Sutton is serving a sentence in an
Illinois prison for aggravated criminal sexual assault. He con-
tends, in this habeas corpus proceeding under 28 U.S.C. § 2254,
that the evidence connecting him with that crime was ob-
tained by the state through a conceded violation of the Fourth
Amendment in a different case—specifically, a court order un-
supported by probable cause, requiring him to furnish a
2                                                   No. 15-2888

blood sample for DNA testing. The district court ruled that
the writ should issue, but we conclude that it erred in doing
so, because the blood (and thus the DNA) would inevitably
have been produced under a state law that provided legal au-
thority for collecting the sample. We therefore reverse.
                                 I
    Sutton has been convicted of violent crimes in multiple
separate prosecutions by the state of Illinois. Two of these con-
victions are relevant here: his 1991 conviction for attempted
aggravated criminal sexual assault against A. Rac (the Rac
prosecution), and his 1997 conviction for aggravated criminal
sexual assault against P. Lally (the Lally prosecution). The
facts relevant to this appeal (even if not the facts of those
crimes) are largely uncontested: the state concedes that it un-
lawfully collected a sample of Sutton’s blood during the Rac
prosecution and then used that blood sample in the Lally
prosecution. Sutton’s petition relates to the Lally conviction.
    In March 1991, Rac was the victim of an attempted sexual
assault in the alleyway behind her apartment building. Sutton
was arrested and charged with the crime. On April 3, 1991,
Sutton appeared at a preliminary hearing before Cook
County Circuit Court Judge James F. Henry. Judge Henry
granted the prosecutor’s request to order that Sutton submit
a blood sample as a condition of his bond, over Sutton’s ob-
jection. But Sutton was not released on bond at that time, and
therefore the ordered sample was never taken.
   On May 7, 1991, during a pre-trial hearing before a differ-
ent judge, Judge Richard LaCien, the prosecution noted that
the blood sample had not been taken and asked for an oppor-
tunity to “redraft” Judge Henry’s order and have Judge
No. 15-2888                                                  3

LaCien sign it. Judge LaCien permitted the prosecution to do
so and signed the order over Sutton’s objection. The order
stated:
   It is hereby ordered pursuant to chpt 110A § 413 that
   the defendant submit a blood specimen and saliva
   sample as well as head and hair (pubic) samples. The
   defendant shall be taken to Cermak Hospital as soon
   as is practicable pursuant to this order.
The statute to which he referred, Ill. Rev. Stat., ch. 110A
¶ 413(a)(vii) (1991), allows a court to order a blood or other
tissue sample “subject to constitutional limitations.” This or-
der, unlike the previous one, was not conditioned on Sutton’s
release on bond. Three months later, the state took Sutton’s
blood sample pursuant to the order and sent it to the state po-
lice lab and the FBI lab.
    At a jury trial in November 1991, Sutton was convicted on
all counts and sentenced to ten years in prison. The prosecu-
tion presented no forensic evidence. Although an Illinois stat-
ute in effect at the time specified that any persons convicted
of sex offenses “shall … be required to submit samples of
blood and saliva,” the court did not order Sutton to provide
another sample. Ill. Rev. Stat. ch. 38, ¶ 1005-4-3(A) (1991).
    On to the Lally proceedings. In 1990, Lally was the victim
of a home invasion and sexual assault. The assault took place
during the intruder’s break-in into the home of another per-
son, who ultimately testified as a witness. Both the witness
and Lally were present in the home. The intruder tied up the
witness, sexually assaulted Lally, and stole money from both
of them. Following the attack, Lally permitted medical per-
sonnel to assemble a rape kit. At that time, Sutton was not a
4                                                 No. 15-2888

suspect, and neither Lally nor the other witness was able de-
finitively to identify any suspect from the police photos or
lineup. The other witness initially identified someone else as
the assailant based on a photo display, but could not identify
that person in a subsequent lineup.
   After the Rac prosecution, there was a break in the Lally
case: the FBI lab matched Sutton’s DNA (derived from the Rac
blood sample) with physical evidence supplied by Lally. The
witness was able to identify Sutton as the attacker, although
Lally could not. Based on this new evidence, Sutton was
charged for the attack.
    Before trial, Sutton moved to suppress the DNA evidence
connecting him to the Lally crime on the ground that the
blood sample had been taken in violation of the Fourth
Amendment. At an evidentiary hearing, Sutton presented the
transcript of the proceeding before Judge LaCien. Sutton also
questioned John Haskins, the prosecutor responsible for post-
conviction proceedings in the Rac case. Haskins testified that
Sutton’s blood had “no evidentiary value” in the Rac case, be-
cause that case did not include any “testimony about …
blood[,] … semen or any fluid,” nor was any DNA testing
done. Although a sweatshirt with bloodstains was collected
at the scene, it was not used in the Rac case nor was any evi-
dence related to the sweatshirt presented to Judge LaCien be-
fore he signed the order. The Lally judge responded, “I don’t
know what evidence the State and defense had at the time
they requested that order for the blood drawing,” but “I
would assume that either good reasons were given to Judge
LaCien for signing that order or no objection was made at the
time.”
No. 15-2888                                                   5

    The court ignored the Rac transcript, which showed ex-
actly which reasons were given to Judge LaCien before he
signed the order. It admitted the DNA evidence, and Sutton
was convicted of all counts in the Lally case. He was sen-
tenced to concurrent 18-year sentences for home invasion and
armed robbery, and a consecutive 15-year sentence for aggra-
vated criminal sexual assault.
    Sutton’s appeals from that judgment were unsuccessful.
The Illinois Court of Appeals rejected his argument that the
blood sample was inadmissible. The Court of Appeals stated,
erroneously, that Sutton failed to provide it with a transcript,
and therefore it “presume[d] that Judge LaCien acted cor-
rectly in ordering defendant to permit the taking of his blood
and hair and that probable cause justified the order.” In fact,
Sutton did provide a transcript, as the state now concedes.
The court ruled in the alternative that Haskins’s testimony
supported probable cause because of the bloody sweatshirt.
The Illinois Supreme Court denied leave to appeal.
   Sutton did not fare any better during state post-conviction
review. He argued that his appellate counsel was ineffective
because he failed to provide the transcript of the hearing be-
fore Judge LaCien to the Court of Appeals. The trial court de-
nied his petition. The Court of Appeals acknowledged that it
had been mistaken on direct review—Sutton did, in fact, pro-
vide the transcript—but nonetheless affirmed its prior alter-
nate holding, stating that the “manifest weight of the evidence
indicated that the order was based on a finding of probable
cause.” (The Court of Appeals granted limited relief on other
grounds not relevant here). The Illinois Supreme Court again
denied leave to appeal.
6                                                     No. 15-2888

    Sutton then filed his petition seeking habeas corpus relief
under 28 U.S.C. § 2254. He alleged that he received ineffective
assistance of appellate counsel in violation of his Sixth
Amendment rights, because his counsel did not include or
properly cite to the transcript during direct review. Rather
than focusing on the Sixth Amendment argument, however,
the district court, citing a 1994 district court case, decided that
it could “consider a properly preserved constitutional claim
underlying a habeas petitioner’s claim of ineffective assis-
tance of counsel.” It thus turned directly to Sutton’s underly-
ing Fourth Amendment claim. It held that although a federal
court cannot generally grant habeas corpus relief on the basis
of a Fourth Amendment claim under Stone v. Powell, 

(1976), Sutton’s situation falls within the narrow excep-
tion for cases where the petitioner did not have a full and fair
hearing on his Fourth Amendment claim in state court. On the
merits, it found a constitutional violation warranting the issu-
ance of the writ. Because Sutton is currently serving a life sen-
tence for an unrelated conviction, it stayed the writ until Sut-
ton is no longer in custody under any other sentence.
    The district court then denied the state’s motion to alter or
amend the judgment. In that motion, the state argued that it
would inevitably have discovered Sutton’s DNA because of
the state law requiring that persons convicted of certain sex-
ual crimes provide a blood sample. The Fourth Amendment
exclusionary rule, it said, thus did not bar admission of the
DNA evidence in the Lally case anyway. The district court re-
jected that argument, and the state appeals.
No. 15-2888                                                      7

                                II
                                A
    Because the district court specified that it was not issuing
the writ immediately, we must first confirm that appellate ju-
risdiction exists. (The district court had jurisdiction under 28
U.S.C. §§ 1331, 2241, and 2254.) The district court’s order dis-
posed of all claims; all that remains to be done is the execution
of the judgment—issuing the writ after Sutton’s release. That
is the type of loose end that does not destroy finality for pur-
poses of appeal. See Budinich v. Becton Dickinson & Co., 

, 199 (1988). And in this case, because it is the state
that brings the appeal, no certificate of appealability is re-
quired. FED. R. APP. P. 22(b)(3). Our jurisdiction is therefore se-
cure. See 28 U.S.C. §§ 1291 and 2253.
                                B
    Before turning to the merits, we must say a word about the
district court’s decision to reach through Sutton’s Sixth
Amendment ineffective-assistance-of-counsel claim to ad-
dress the merits of the underlying Fourth Amendment claim.
See generally Kimmelman v. Morrison, 

(1986) (dis-
cussing the relation between a Fourth Amendment claim and
a Sixth Amendment ineffective-assistance-of-counsel claim
based on counsel’s litigation of the underlying Fourth
Amendment claim). In its filings in the district court, the state
failed to present the argument that Sutton’s Fourth Amend-
ment claim was not properly before the district court. But see
Powell, 

. (The state has briefed Powell in this court.
We consider it to the extent we find necessary, but the state
lost the chance to try to nip this case in the bud on that basis.)
8                                                   No. 15-2888

We therefore proceed on the assumption that Sutton’s Fourth
Amendment claim was properly before the district court.
                               C
    This brings us to the main event: Sutton’s Fourth Amend-
ment claim. The first question is whether any relief is availa-
ble to him, in light of the strictures in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). AEDPA author-
izes collateral relief only when a petitioner is “in custody in
violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Where a state court has decided
an issue on the merits, we may grant relief only if that decision
was “contrary to, or involved an unreasonable application of
clearly established Federal law” as determined by the Su-
preme Court. 

For alleged Fourth Amendment
violations, enforceable through the exclusionary rule, this al-
ready-high bar gets raised even further: relief is not available
except in extremely narrow circumstances. See Powell, 

.
     In Powell, the Supreme Court held that a federal court gen-
erally cannot grant habeas corpus relief based on a state court’s
failure to suppress evidence collected in violation of the
Fourth Amendment. 

This is because the exclusion-
ary rule is a “means of effectuating the rights secured by the
Fourth Amendment” by deterring police misconduct, rather
than a personal constitutional right of the defendant. See 

486; see also Reed v. Farley, 

, 347–48 (1994)
(plurality opinion). In the case of collateral proceedings, that
deterrent effect is so weak that it is outweighed by the harm
of excluding probative evidence. See 

–
88, 493.
No. 15-2888                                                     9

    The Court recognized one narrow exception to the Powell
rule: a petitioner may litigate his Fourth Amendment exclu-
sionary rule claim on collateral review if he was not “afforded
the opportunity for full and fair consideration of his search-
and-seizure claim at trial and on direct review.” 

The
district court relied on this exception, noting that (1) the state
trial court in the Lally case “assume[d]” that there was prob-
able cause for the Rac court to issue a warrant without con-
sidering any evidence; (2) on direct review, the Illinois Court
of Appeals failed to recognize that Sutton provided the nec-
essary transcript; and (3) although on post-conviction review
the Illinois Court of Appeals recognized its error in not notic-
ing the transcript on direct review, it nevertheless found that
probable cause supported the Rac court’s order, even though
there was no evidence supporting this conclusion and ample
evidence to the contrary.
    We find it unnecessary to decide whether the facts identi-
fied by the district court suffice to bring Sutton’s case into the
Powell exception. The writ cannot issue if there was no Fourth
Amendment violation to begin with. The state courts found
that there was no such violation, and so we examine that find-
ing under AEDPA’s deferential rule.
                                D
   The state argues that the admission of Sutton’s DNA evi-
dence in the Lally trial did not violate the exclusionary rule
because it would inevitably have discovered that evidence re-
gardless of the unconstitutional search. Under the inevitable
discovery doctrine, “[i]f the prosecution can establish by a
preponderance of the evidence that the information ulti-
mately or inevitably would have been discovered by lawful
means … then the deterrence rationale [of the exclusionary
10                                                   No. 15-2888

rule] has so little basis that the evidence should be received.”
Nix v. Williams, 

, 444 (1984). The state must show
“both (1) that it had, or would have obtained, an independent,
legal justification for conducting a search that would have led
to the discovery of the evidence and (2) that it would have
conducted a lawful search absent the challenged conduct.”
United States v. Howard, 

, 663 (7th Cir. 2013) (in-
ternal quotation marks omitted). “[I]nevitable discovery in-
volves no speculative elements but focuses on the demon-
strated historical facts capable of ready verification or im-
peachment.” 

.
    This issue is properly before us, despite the fact that the
state first raised inevitable discovery in its motion to alter or
amend the judgment in the district court. See FED. R. CIV. P.
59(e). Ordinarily this would be too late in the day, but here
the district court actually considered the argument in its rul-
ing on the Rule 59(e) motion; as a result, we can consider it on
appeal. We review that ruling for abuse of discretion. Burritt
v. Ditlefsen, 

, 252 (7th Cir. 2015). A “district court
by definition abuses its discretion when it makes an error of
law.” Koon v. United States, 

, 100 (1996).
     The district court was skeptical that the inevitable discov-
ery doctrine could apply to an order to draw blood. While it
is true that the doctrine more typically is applied in situations
in which the police prematurely conduct a search before ob-
taining a warrant or before the search would become justified
by an exception to the warrant requirement, we see no reason,
and indeed AEDPA would not permit us on collateral review,
to create a new distinction between physically entering a lo-
cation and drawing blood. See, e.g., 

(applying doctrine when evidence found in an unlawful
No. 15-2888                                                      11

search would have been discovered minutes later in a lawful
search incident to arrest); United States v. Tejada, 

,
813 (7th Cir. 2008) (applying doctrine where a search of an
apartment incident to a lawful arrest revealed a travel bag
that the officers unlawfully searched, but “certainly” would
have been given a warrant to search had they applied for one).
The concept of a search applies equally to both. See Missouri
v. McNeely, 

, 1556 (2013) (confirming that taking
a blood sample is a search).
    Nix v. Williams, which was the first Supreme Court deci-
sion to provide an extensive analysis of the inevitable discov-
ery doctrine, supports this conclusion, and it is telling that it
also did not involve a straightforward search of a building or
place. There, the police questioned a homicide suspect in vio-
lation of his Sixth Amendment rights, leading the suspect to
reveal the location of the victim’s body. 

–
36. The Court denied habeas corpus relief because, although the
evidence was obtained illegally, the police already had begun
a search in the correct area and would have discovered the
body regardless of the suspect’s statements. 

The
Court explained that the purpose of the Fourth Amendment
exclusionary rule is to ensure that the state is not put in a better
position by virtue of its unlawful conduct; correspondingly,
the purpose of the inevitable discovery rule is to ensure that
the state is not put in a worse position than if the unlawful
conduct never took place. 

“[B]ecause the police
would have obtained that evidence if no misconduct had
taken place,” excluding it would not serve the purpose of the
exclusionary rule. 

This reasoning applies just as
readily to a blood test as it does to prematurely entering a
house or discovering evidence revealed during an unlawful
interrogation.
12                                                    No. 15-2888

    Since there is no categorical reason why the inevitable dis-
covery doctrine cannot apply to the Lally prosecution, we
must determine whether the state has shown by a preponder-
ance of the evidence that it would have obtained Sutton’s
blood sample lawfully in the absence of the unlawful order
from the Rac case. See 

to meet this burden, the
state points to an Illinois law in effect at the time that required
all persons convicted of certain sexual crimes (including those
of which Sutton was accused) to provide a blood sample. The
relevant statute, Ill. Rev. Stat. ch. 38, ¶ 1005-4-3(A) (1991),
stated that persons convicted of certain sexual offenses “shall
… be required to submit blood samples and saliva to the Illi-
nois State Police.” (The current version is codified at 730 ILCS
5/5-4-3 (2014)). The language in the statute is mandatory, alt-
hough it obviously was not followed to the letter in the Rac
case. The state, which has the burden of demonstrating that
the doctrine applies, has not explained why a new sample was
not collected after Sutton’s conviction: because the state al-
ready had one, or some other reason.
    There is a presumption that the police and the courts will
follow their routine procedures for issuing warrants. See, e.g.,
United States v. Marrocco, 

, 639 (7th Cir. 2009) (pre-
suming that police “undoubtedly would have followed rou-
tine, established steps resulting in the issuance of a warrant”);
United States v. Buchanan, 

, 1573 (7th Cir. 1990)
(similar). Principles of comity advise us to give the state court
system this same presumption of regularity. The law on the
books required the court to order Sutton to provide a blood
sample. This is enough, in our view, to show by a preponder-
ance of the evidence that, but for the fact the state already had
a sample from Sutton, it would have collected a sample. (Why
No. 15-2888                                                    13

engage in a pointless act?) The timing of the collection of Sut-
ton’s blood thus drops out of the case, and the DNA harvested
from the sample would inevitably have been discovered after
his conviction in the Rac case. The trial court in the Lally case
therefore could have admitted that DNA evidence pursuant
to the inevitable discovery doctrine, despite the assumed
Fourth Amendment violation in the Rac case. (This is not the
ground on which the state court relied, but we are not here to
grade its opinions, if its ultimate result was reasonable.)
     Thus, even if Sutton falls within the Powell exception, he is
not entitled to habeas corpus relief. Section 2254(a) permits a
federal court to grant the writ only when the petitioner is “in
custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran,

, 5 (2010) (legal errors that do not result in the peti-
tioner’s “custody” violating the Constitution or federal law,
such as errors of state law, cannot be remedied through the
writ); Hampton v. Wyant, 

, 562 (7th Cir. 2002) (pe-
titioner imprisoned based on “unlawfully seized evidence is
not ‘in custody in violation the Constitution’” because the
“seizure may have violated the Constitution but the custody
does not” (quoting 28 U.S.C. § 2254(a)). Here, even if the state
violated the Fourth Amendment in the Rac case, Sutton’s cus-
tody in the Lally case is not in violation of the Constitution,
and he is not entitled to the issuance of the writ.

                               III

   We have proceeded on the assumption, uncontested for
present purposes, that the Illinois trial court’s May 1991 order
authorizing the state to take Sutton’s blood sample was un-
lawful because at the time it was not supported by probable
14                                                  No. 15-2888

cause. Nevertheless, the Lally court was entitled to admit the
DNA evidence from that blood sample under the inevitable
discovery doctrine. We do not reach the question whether it
was proper for the district court to reach through Sutton’s
Sixth Amendment ineffective-assistance-of-counsel claim to
hear the underlying Fourth Amendment claim, nor do we de-
cide whether this case fits within the Powell exception permit-
ting a federal court to grant habeas corpus relief where the pe-
titioner did not have a full and fair opportunity to litigate his
Fourth Amendment claim on direct review. It is enough to
hold that even if Powell permits us to reach that issue, Sutton’s
“custody” in the Lally case is not in violation of the “Consti-
tution … of the United States” and his petition thus should
have been denied. We therefore REVERSE the district court’s
order granting Sutton’s petition for a writ of habeas corpus.