Frank Bailey, Jr. v. Jack R. Duckworth

BAUER, Circuit Judge.

This appeal raises the issue of whether a claim considered for the first time on a petition for rehearing in a state appellate court has been fully and fairly litigated in the state courts. We hold that it has not. Accordingly, we reverse and remand.

Petitioner Frank Bailey, Jr. and his brother Hank were charged with numerous counts of first and second degree burglary. At trial they moved to suppress the evidence seized from Hank Bailey’s home, contending that the warrant was not supported by probable cause. This evidence constituted a significant portion of the state’s…