The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the motion of respondent Petrelli to
dismiss the instant petition. Petitioner had been convicted of
murder at a bench trial in the Circuit Court of Cook County on
October 26, 1966, and was sentenced from 14 to 20 years in the
penitentiary. This conviction was affirmed by the Illinois
Appellate Court. While the appeal was pending, petitioner filed
a petition under Section 72 of the Illinois Civil Practice Act.
Later, a petition for relief under the Post-Conviction Hearing
Act was filed. The Circuit Court consolidated the two petitions
for hearing and entered an order denying the prayer of the two
petitions. The Illinois Supreme Court affirmed.
On March 7, 1966, a group of boys 15 or 16 years of age had
gone to the apartment of Emmett Tate to visit his stepdaughter,
Wanda Jean Gray. Tate arrived
and ordered the boys to leave. They did so, but one of the boys
went back to the apartment to get his coat. When he came out, he
told the other boys that Wanda's step-father was beating her.
Some of the boys, including the petitioner, went back to the
apartment and told Tate to stop beating the girl. A fight ensued,
some one fired a shot, and Tate was killed. Wanda at first told
the police that a boy named Sutton had fired the shot. At the
petitioner's trial, however, she testified that she was on the
floor when the boys re-entered the apartment and that Sutton was
not one of the boys who returned. She testified further that she
saw the petitioner shoot Tate.
At the petitioner's trial, after the defense rested, the court
made the following comment:
All right. I have a reasonable doubt as to whether
or not this defendant fired the fatal shot. However,
I have no reasonable doubt, backed by his own words
and the testimony of his witnesses, . . . that there
was a man, the deceased in this case, who was in his
own home, who ordered them to leave, that they did
leave, and that he began to chastise his own
daughter. According to the defendant, some one said,
"He's beating her. Let's stop it." He said "Okay."
And then he, after having been told by that man to
leave his home, re-entered the home in a concert of
action with several others. The record is quite
confusing as to who was there, but I know from the
evidence the defendant was there, acting in an
unlawful manner. So whether he fired the shot or
Sutton fired the shot is immaterial. (Emphasis
At the hearing on the post-conviction petitions, Wanda Jean
indicated that she had not told the truth at the trial when she
testified that the petitioner had fired the shot. At the
conclusion of the hearing, the judge (who had also presided at
petitioner's trial) commented, "I feel that the search for truth
here discloses that he is guilty and that no substantial
constitutional right was violated. If there was perjury, she was
a perjurious witness, and I didn't base my decision on her
As grounds for the instant petition, Bracey alleges: (1) that
there was a lack of evidence as to the group's shared intent to
commit an unlawful act; (2) that the conviction was based on
defense evidence; (3) that the Court did not believe the State's
principal witness; (4) that conviction based on the defense
evidence placed the burden of proof on the defendant; (5) that
conviction on the basis of the evidence introduced amounted to an
unconstitutional application of the Illinois "accountability"
statute. Neither ground four nor five had been previously
presented to any court. The respondent has moved to dismiss the
petition alleging: (1) since grounds four and five have not as
yet been ruled on by the Illinois courts, the petitioner cannot
now raise them in federal court and (2) that the basis of the
petition is sufficiency of evidence, which is an inappropriate
basis for habeas corpus relief.
I. Grounds 4 and 5: Exhaustion of State Remedies
Petitioner states that he has not heretofore raised the claims
presented in 4 and 5 because these claims were overlooked by
counsel who aided him in the state courts. It has been well
settled that a state prisoner must normally exhaust available
state judicial remedies before a federal court will entertain his
petition for habeas corpus. 28 U.S.C. § 2254(b) and (c). In Fay
v. Noia, 372 U.S. 391, 435, 83 S.Ct. 822, 847, 9 L.Ed.2d 837
(1962), the Supreme Court clarified the scope of the exhaustion
We hold that § 2254 is limited in its application to
failure to exhaust state remedies still open to the
habeas applicant at the time he files his application
in federal court.
Petitioner has failed to raise grounds 4 and 5 on appeal or in
hearing. Therefore, the Illinois Post-Conviction Hearing Act,
Ill.Rev.Stat. Chap. 38, Sec. 122-1 (1967), is no longer a
meaningful remedy to him. The waiver petition, Section 122-3,
provides that any claim of denial of constitutional rights not
raised in the original or amended petition is waived. This waiver
provision has been upheld literally, People v. Orr, 10 Ill.2d 95,
139 N.E.2d 212 (1956), cert. denied, 358 U.S. 869, 79 S.Ct. 102,
3 L.Ed.2d 101 (1958); People v. Lewis, 2 Ill.2d 328,
118 N.E.2d 259 (1954), except where the defendant sought to raise issues in
the initial petition but was not permitted to do so by counsel.
People v. Agnello, 35 Ill.2d 611, 221 N.E.2d 658 (1967); People
v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456 (1965). No such special
circumstances are disclosed in the instant petition. It may be
assumed, then, that petitioner will be foreclosed from raising
any new grounds for relief in the Illinois state courts. No
further state remedy is available. As a result, petitioner may be
said to have exhausted the state remedies open to him at the time
of filing as Noia requires. This Court may now hear these claims
notwithstanding that the petitioner has waived*fn1 them under
the Illinois Post-Conviction Hearing Act. Note, "Federal Habeas
Corpus" Its Uncertain Effects on Illinois Law," 59 Northwestern
Law Review 696, 713 (1964); and see Cotner v. Henry, 394 F.2d 873
(7th Cir. 1968) (a petitioner barred by Indiana statute from
appealing his conviction had exhausted state remedies within the
language of 28 U.S.C. § 2254).
II. Essential Claim that of Sufficiency of Evidence
We find persuasive, however, the argument of the respondent
that since petitioner's theory for habeas corpus essentially
rests on the sufficiency and weight of the evidence, it must be
dismissed. It has long been the law that the writ of habeas
corpus cannot be used to test the sufficiency of evidence.
Summerville v. Cook, 438 F.2d 1196 (5th Cir. 1971); Fernandez v.
Klinger, 346 F.2d 210 (9th Cir. 1965); United States ex rel.
Saunders v. Myers, 276 F.2d 790 (3rd Cir. 1960). We find the
petitioner's response that he alleges the absence rather than
sufficiency of evidence to be a distinction without a difference.
In any case, petitioner would substitute our opinion for that
of the trial judge as to questions of credibility of witnesses,
weight of evidence, and reasonable doubt as to guilt. This
District Court, in habeas ...