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United States v. Pate

January 15, 1969

UNITED STATES EX REL. BILLY LEE GLENN, PETITIONER-APPELLANT,
v.
FRANK J. PATE, WARDEN, ET AL., RESPONDENT-APPELLEE



Castle, Chief Judge, Major, Senior Circuit Judge, and Fairchild, Circuit Judge.

Author: Major

MAJOR, Senior Circuit Judge.

The petition in this proceeding for writ of habeas corpus was dismissed December 20, 1967, by the District Court for the Northern District of Illinois, without a hearing. From this order of dismissal petitioner appeals.

Petitioner was charged by indictment in the County of Rock Island, Illinois, with the offense of "unlawful use of weapons," in violation of Sec. 24-1(a) (4), Chap. 38, Ill.Rev.Stats., 1961. The offense charged carried a penalty of a fine not to exceed $500.00, or imprisonment in a penal institution other than the penitentiary not to exceed one year, or both. He was tried by a jury and found guilty. After the jury verdict, the State invoked the Illinois Habitual Criminal Act (Chap. 38 -- Criminal Law and Procedure, Sec. 603.1 et seq.)*fn1, and the Court imposed a sentence of not less than one or more than ten years in the Illinois State Penitentiary, where petitioner is now confined.

Petitioner in numerous courts and proceedings has challenged the legality of his commitment, including an appeal to the Illinois Supreme Court, which affirmed the judgment against him. People v. Glenn, 35 Ill.2d 483, 221 N.E.2d 241. We need not review such proceedings because no question is raised here but that he exhausted his State Court remedies. Neither is there any jurisdictional question.

Petitioner makes two contentions, which succinctly stated are: (1) that the Habitual Criminal Act was not applicable, and (2) in any event, that it was applied in such a manner as to deprive petitioner of due process under the Fourteenth Amendment.

The first issue is based primarily on the argument that petitioner was indicted and convicted of a misdemeanor and the Court was without authority to impose sentence on a felony charge. This argument involves an interpretation of the Habitual Criminal Act, which provides that an offense punishable only as a misdemeanor may be punishable as a felony if the defendant has been previously convicted of a felony. We need not labor this point because it involves an interpretation or construction of the Illinois Act and has been determined adversely to petitioner's contention by the Illinois Supreme Court. See People v. Glenn, supra, and People v. Ostrand, 35 Ill.2d 520, 221 N.E.2d 499.

A more serious issue emerges from petitioner's contention that he was denied due process at the proceeding when the Court imposed sentence. Petitioner alleges with reference to that proceeding that he and his counsel were brought before the Court at the time the verdict of the jury was returned, and immediately and without previous notice to petitioner, the State offered into the evidence records of two former convictions, which the Court admitted. Petitioner's counsel announced that he was not prepared for a hearing on that phase of the matter and requested a continuance. The Court abruptly denied the request and imposed sentence.

Petitioner in connection with his petition sets forth what purports to be a portion of the transcript of the proceeding which took place at the time sentence was imposed:

"The Court: Let the record show that the jury has returned a verdict finding the defendant, Billy Lee Glenn, guilty of Unlawful Use of Weapons in manner and form as charged in the indictment."

Mr. Denger (for the State) read Section 603.3 of Chapter 38 of the Illinois Revised Statutes, subsequently quoted. Thereupon, the record of the former convictions was admitted, with the following colloquy:

"The Court: All right, he is so informed.

Mr. Denger: Will you also have the girl type up just a written notice to the court to be filed at this time, that we are going to present former ...


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