The opinion of the court was delivered by: Foreman, District Judge:
Petitioner was convicted in a jury trial for the offenses of
burglary and rape. Petitioner appealed to the Illinois Appellate
Court, Fifth Appellate District which in 1970, affirmed the
conviction, but vacated the sentence of 25 to 50 years and
remanded for a hearing on aggravation and mitigation.
After reimposition of a 25 to 50 year sentence by the trial
court, an appeal was taken to the Illinois Appellate Court on the
sole issue of whether the sentence was excessive. That Court
reduced the sentence to a minimum of eight and a maximum of
twenty-five (25) years.
Petitioner's first claim is that the trial court did not have
jurisdiction to try him, because at the time of his trial he had
already been incarcerated for longer than the state statutory
maximum. See Illinois Revised Statutes, 1971, Chapter 38, Sec.
103-5. The only alleged vehicle for depriving the trial court of
its jurisdiction in this matter is the state statute. So, the
whole question is one of the interpretation of the state statute
and determining whether the trial court still had jurisdiction.
This issue is one of state law and does not rise to the level of
a federal question and, thus, is not cognizable for federal
habeas corpus relief. See 28 U.S.C. § 2254(a). See United
States ex rel. Little v. Twomey, 477 F.2d 767, 770 (7th Cir.
The Court does not feel that this delay violates the
constitutional guarantee of a speedy trial.
Petitioner also contends that his custody is unlawful and in
violation of the equal protection clause of the United States
Constitution in that the state's refusal to discharge or try
Petitioner within the maximum statutory period constituted an
invidious discrimination against Petitioner. The Court disagrees.
The fact that Petitioner was not tried within the same time
frames, as most other Illinois defendants does not automatically
mean that the Petitioner's rights under the Fourteenth Amendment
have been violated. It should be noted that part of this delay
was caused by Petitioner's counsel who requested a continuance.
There is no allegation that Petitioner was greatly prejudiced by
the brief delay. The Court does not feel that this was the type
of action covered by the equal protection clause.
The next contention advanced by Petitioner is that the failure
of Petitioner's attorney to request leave to appeal to the
Illinois Supreme Court regarding the issue of Petitioner's
incarceration beyond the 120-day statutory maximum constituted
ineffective assistance of counsel. The Seventh Circuit has held
that where it is not shown that the trial was a sham or mockery,
a petitioner is not entitled to habeas corpus relief by reason of
ineffective assistance of counsel. Sims v. Lane, 411 F.2d 661
(7th Cir., 1969). See also United States v. Garguilo,
324 F.2d 795 (2nd Cir., 1963). A lack of effective assistance of counsel
must be of such a kind as to shock the conscience of the Court
and make the proceedings a farce and a mockery of justice. There
must have been a total failure to present the cause of the
accused in any fundamental respect. United States ex rel.
Marcelin v. Mancusi, 462 F.2d 36, 42 (2nd Cir., 1972). This Court
feels that the failure of the trial counsel to appeal this matter
does not constitute ineffective counsel under the authority
Petitioner also claims that the identification of the
Petitioner by the victim was extremely suggestive, tainted, and
misleading. The victim was asleep during the morning of May 21,
1967, when she was awakened by an intruder. She testified that
she could tell from the luminous dial of her bedroom clock that
it was 5:00 A.M. Her intruder was standing over her with a knife
at her throat and told her to wake up. She testified
that there was a night light in the bathroom and there was a
street light outside the window. She also indicated that it was
dusk and that there was not bright light, but "it was just
beginning to get light in the wee hours of the morning." She
testified that she was able to see in the room. Then her
assailant forced her to go into the other bedroom and lie down on
the bed and he started kissing her stomach. Then he had
intercourse with her and penetration was accomplished. She
further testified that she did not consent. After the intruder
had departed she called the police and after their arrival she
described her assailant. Although it is not entirely clear it
appears that the only description which she provided the police
was that her assailant was a black man with a mustache who was
slightly taller than she was and wore dark glasses and had a
coat. She also testified she was five feet four inches. Later
that day, the police returned with what is sometimes referred to
in the transcript as a photograph, but what really appears to be
a sketch of a man. The victim testified that the "photograph" was
not something taken by a camera, but more of a sketch. The police
officers showed this sketch to the victim who answered that it
looked like her attacker, but that he had worn glasses. Then one
of the policemen drew glasses on the sketch and the victim
identified the man. Henry Odom was arrested that same day and a
lineup was conducted the following day. There were five black men
in the lineup, including the Petitioner, but only the Petitioner
wore glasses. Later at the trial the victim testified during
cross-examination that the glasses were the outstanding feature
about him. Only one or two of the others in the lineup had a
mustache. Apparently three of the four men other than the
Petitioner were six feet tall, while Petitioner claims that he
was only five feet five and one-half inches tall. One of the
other four did not have a beard because of his youth, although
the victim stated later at time of trial that the assailant had a
growth of beard one or two days old. The victim identified Odom
as her attacker, although witnesses admit that she was reluctant
to do so initially. Then Odom was brought into a room with the
victim and he was questioned after which time, the victim also
recognized Odom's voice as that of her attacker. She also
identified Odom at the time of trial.
Petitioner requests that a hearing be held for the issue of the
suggestiveness of the identification. At time of trial, counsel
for both sides appear to have thoroughly questioned all major
participants about the identification. Petitioner's request for a
hearing in this regard seems to have as its basis only that the
state court made the wrong decision. This Court feels that the
facts regarding the identification are sufficiently contained in
the trial transcript and that justice would not be served by
asking the same participants questions about an incident which
occurred 5½ years ago. Consequently, Petitioner's request for a
hearing in this matter is denied.
Petitioner was not represented by counsel during the lineup,
but he concedes that he was not entitled to such representation.
See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d
1199 (1967). Also see United States v. Wade, 388 U.S. 218, 87
S.Ct. 1926, 18 L. Ed.2d 1149 (1967). Gilbert v. California,
388 U.S. 263, 87 S.Ct. 1951, 18 L. Ed.2d 1178 (1967).
In the Gilbert and Wade decisions, the Supreme Court
discussed the dangers inherent in eyewitness identification. In a
subsequent decision, the Court indicated that the display of a
single individual's picture may cause misidentification.
"This danger will be increased if the police
display to the witness only the picture of a single
individual who generally resembles the person he saw,
or if they show him the pictures of several persons
among which the photograph of a single such
individual recurs or in some way is emphasized."
Simmons v. United States, 390 U.S. 377 at 383, 88
S.Ct. 967 at 971, 19 L. Ed.2d 1247.
The Court then indicated that an original misidentification
which could result from viewing a single photograph might ...