his conviction; (2) the prosecutor made certain improper
remarks to the jury in his closing argument regarding
petitioner's credibility; (3) the trial judge abused his
discretion in sentencing the petitioner; and (4) the trial
judge's abuse of discretion in sentencing petitioner was in
retaliation for petitioner's exercise of his right to a trial
and refusal to plead guilty. Respondents have moved for summary
judgment pursuant to Fed.R.Civ.P. 56.
The standard to be used in deciding a motion for summary
judgment is that the "party moving for summary judgment has the
burden of clearly establishing the nonexistence of any genuine
issue of fact that is material to a judgment in his favor."
Cedillo v. International Association of Bridge & Structural
Iron Workers, Local Union No. 1, 603 F.2d 7, 10 (7th Cir.
1979). All pleadings and supporting papers must be viewed in
the light most favorable to the party opposing the motion.
United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct.
993, 994, 8 L.Ed.2d 176 (1962); Stringer v. Rowe,
616 F.2d 993, 999 (7th Cir. 1980).
SUFFICIENCY OF THE EVIDENCE
Petitioner alleges that the evidence introduced at his trial
was insufficient to support his conviction for armed robbery
because it failed to establish a connection between the stolen
checks he admittedly cashed and those supposedly taken during
the robbery. However, the complainant, owner of the book and
magazine distributorship, identified petitioner several times
as one of the men who robbed him at gunpoint. Complainant
testified that on August 25, 1974, he identified a photograph
of petitioner out of eight photographs shown to him by the
police as one of the men who robbed him. Complainant also
testified that he identified petitioner in a lineup on December
16, 1974, as one of the men who robbed him. Complainant's
testimony as to the identification was corroborated by a
Chicago Police Investigator, Dan Rolewicz. Complainant also
identified petitioner at trial as one of the two men who robbed
him. He further testified that petitioner took cash, keys, and
a van from complainant's business.*fn2
Petitioner denied robbing complainant and testified that he
spent the morning of the robbery in an Unemployment
Compensation Office. Petitioner's testimony was corroborated by
an employee of the Unemployment Division who testified that
petitioner was in her office at the time of the robbery.
In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62
L.Ed.2d 126 (1979), a federal habeas corpus proceeding in which
the petitioner, convicted in state court, alleged he was
convicted on insufficient evidence, the Supreme Court held that
the due process clause of the fourteenth amendment protects a
defendant in a criminal case against conviction except upon
proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged. See also In re
Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
After Winship the critical inquiry on review of the
sufficiency of the evidence to support a criminal conviction
must be not simply to determine whether the jury was properly
instructed, but to determine whether the record evidence could
reasonably support a finding of guilt beyond a reasonable
doubt. . . . [T]he relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. . . . Once a
defendant has been found guilty of the crime charged, the
factfinder's role as weigher of the evidence is preserved
through a legal conclusion that upon judicial review all of
the evidence is to be considered in the light most favorable
to the prosecution. (emphasis in original) (citations omitted).
Jackson, supra, 443 U.S. at 318 19, 99 S.Ct. at 2789.
The applicant is entitled to habeas relief if it is found that
upon the record evidence adduced at trial no rational trier of
fact could have found proof of guilt beyond a reasonable doubt.
Jackson, supra, 443 U.S. at 324, 99 S.Ct. at 2792. This
standard must be applied with explicit reference to the
substantive elements of the criminal offense as defined by
state law. Jackson, supra, 443 U.S. at 324 n.16, 99 S.Ct. at
2792 n.16. Further, under the standard articulated in
Jackson, a federal court in a habeas corpus proceeding faced
with a record of historical facts that support conflicting
inferences must presume — even if it does not affirmatively
appear in the record — that the trier of fact resolved any such
conflicts in favor of the prosecution, and must defer to that
result. Jackson, supra, 443 U.S. at 326, 99 S.Ct. at 2793.
Applying the standard enunciated in Jackson, this Court must
presume that the jury in petitioner's trial resolved the
conflict between complainant's identification of petitioner as
the person who robbed him and petitioner's alibi defense that
he was at the Unemployment Compensation Office at the time of
the robbery, in favor of the prosecution. Viewing the evidence
in the light most favorable to the prosecution, this Court
finds that a trier of fact could reasonably have found that the
essential elements of the crime — robbery while armed with a
dangerous weapon*fn3 — were proved beyond a reasonable
doubt. Therefore, respondents' motion for summary judgment as
to the claim of insufficient evidence is granted. It is so
PROSECUTOR'S CLOSING ARGUMENT
Petitioner alleges that the prosecutor's closing argument to
the jury was improper in two respects. The first allegedly
improper remark concerned petitioner's dealings with the
Unemployment Office and his veracity in general. The
prosecutor, Mr. Raymond Garza, said:
Ladies and gentlemen, he also told you that he was reporting
all his income to the Unemployment Office. If you look at
these records there is a column, the third column, the third
column of these business records, which shows how much you
are making out on these side jobs, and when you look at those
columns, you will notice he reported only $186 worth of
income in three years. That's going to the Unemployment
Office, that's a cheat, that's a fraud, and that's the same
defense he has presented to you today.
Transcript at 207.