United States District Court, Northern District of Illinois, E.D
February 2, 1982
UNITED STATES OF AMERICA EX REL. ALEXANDER MCLAREN, PETITIONER,
JAMES W. FAIRMAN, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Alexander McLaren ("McLaren"), an inmate at Pontiac
Correctional Center ("Pontiac"), has brought this 28 U.S.C. § 2254
("Section 2254") habeas corpus action
against Pontiac Warden James W. Fairman.*fn1 McLaren claims
his Illinois state court conviction and sentencing violated his
federal constitutional rights*fn2 in four respects:
(1) McLaren was represented by ineffective trial
and appellate counsel, in violation of his Sixth
Amendment right to assistance of counsel.
(2) Because the state failed to prove McLaren
guilty beyond a reasonable doubt, the conviction
violated his due process rights.
(3) McLaren's 20 to 30 year sentence was so
excessive as to be "cruel and unusual punishment"
under the Eighth Amendment.
(4) Presumably as another due process claim, the
trial court erred in allowing two defense
witnesses to invoke their Fifth Amendment
privileges against self-incrimination.
Fairman has moved to dismiss all claims or for summary
Though that motion is inapt at least in part,
McLaren's petition is denied for the reasons stated in this
memorandum opinion and order.
People v. McLaren, 77 Ill. App.3d 368, 32 Ill.Dec. 838,
395 N.E.2d 1219 (1st Dist. 1979) states the facts in some detail.
McLaren was convicted of murdering James Martinez outside a
tavern on Chicago's near southwest side in the early morning
hours of June 2, 1974. McLaren and several cronies had seen
Martinez and another young man walking down the street, and
McLaren used a gun voluntarily given to him by one of his
cronies (either Juan Perea or Jorge Roman) to shoot and kill
Martinez. Although the Appellate Court said, "The evidence
indicates that the slaying was motivated primarily by racial
hatred," 77 Ill. App.3d at 375, 32 Ill.Dec. at 37, 395 N.E.2d
at 1224, McLaren's purpose is unclear from the facts stated in
McLaren's ineffective assistance of counsel contention is
predicated on the failure to (1) call certain key witnesses,
(2) raise pertinent facts from a preliminary hearing and (3)
file timely appeals. Those claims cannot be asserted here
because McLaren has not exhausted available state remedies
under the Illinois Post-Conviction Act (the "Act"),
Ill.Rev.Stat. ch. 38, §§ 122-1 to 122-7.
People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970) held that
a judgment on direct appeal from an Illinois state court
conviction is (1) res judicata as to all issues presented to
the reviewing court and (2) a waiver as to all issues that
could have been but were not raised on appeal. McLaren did
appeal his conviction but did not raise the ineffective
assistance claim. Ordinarily the waiver branch of James would
mean the Act was unavailable, so federal habeas would lie.
Here however that result does not obtain for two reasons:
(1) United States ex rel. Williams v. Israel,
556 F.2d 865, 866 (7th Cir. 1977) suggests that under
Illinois law an ineffective counsel claim "based in
substantial part on evidence outside the record" is
never waived for purposes of the Act. McLaren does
rely on non-record evidence.
(2) McLaren was represented by the same lawyer
at both the state trial and appellate levels.
Under those circumstances People v. McClain,
15 Ill. App.3d 929, 933, 305 N.E.2d 423, 426 (1st
Dist. 1973) should permit McLaren to invoke
the Act.*fn4 See United States ex rel. Williams v.
Brantley, 502 F.2d 1383, 1386 n. 3 (7th Cir. 1974);
United States ex rel. Bonner v. Warden, 422 F. Supp. 11,
15 (N.D.Ill. 1976).
Because McLaren may pursue his rights under the Act, he has not
exhausted his state remedies under Section 2254(c).
This opinion nonetheless turns to McLaren's three remaining
claims, for they were raised in the Illinois Appellate Court,
thus satisfying the exhaustion requirement. Under Ware v.
Gagnon, 659 F.2d 809, 811 (7th Cir. 1981), a district court
"should reach the merits of the exhausted claims where the
unexhausted claims are unrelated or frivolous." Unlike the
Sixth Amendment contention, McLaren's other assertions may be
decided on the state record without further factual
development. Moreover the operative facts of those assertions
differ materially from those underpinning the right to counsel
One McLaren contention is that the conviction was so lacking
in rational evidentiary support as to render it violative of
due process. As to such a claim Jackson v. Virginia,
443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)
teaches the standard this Court must apply:
But this inquiry does not require a court to "ask
itself whether it believes that the evidence at the
trial established guilt beyond a reasonable doubt."
Woodby v. INS, 385 U.S.  at 282 [87 S.Ct. 483
at 486, 17 L.Ed.2d 362] (emphasis added). Instead,
the 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. See Johnson v. Louisiana, 406
U.S.  at 362 [92 S.Ct. 1620 at 1624, 32
L.Ed.2d 152]. This familiar standard gives full
play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. 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. The criterion thus impinges upon
"jury" discretion only to the extent necessary to
guarantee the fundamental protection of due process
Lorenzo Rendon, one of McLaren's cronies that night,
testified that McLaren asked for and obtained a gun from one of
the other men in the group, then shot Martinez. Corroboration
was provided by other witnesses, who testified that earlier
that evening McLaren had been seen with a gun, and that just
after the shooting McLaren was seen fleeing from the scene. It
is true that Rendon was impeached at trial by the fact that he
had told police at the murder scene a different story that did
not inculpate McLaren. But the trial judge as factfinder
observed Rendon's demeanor and credibility and chose to credit
his sworn testimony over the prior inconsistency. Certainly a
rational factfinder, viewing the evidence in the light most
favorable to the prosecution, could have found all the elements
of murder established beyond a reasonable doubt.
As for McLaren's Eighth Amendment claim, his chief contention
is that as a first offender he was sentenced to a term "grossly
disproportionate to the severity of his crime." But Rummel v.
Estelle, 445 U.S. 263, 271-72, 100 S.Ct. 1133, 1138-39, 63
L.Ed.2d 382 (1980) makes plain that "Outside the context of
capital punishment successful challenges to the proportionality
of particular sentences is exceedingly rare." Moreover,
delineating the sentences for particular crimes is mainly a
matter of legislative prerogative (id. at 274, 100 S.Ct. at
When McLaren was sentenced murder in Illinois was punishable
by a minimum term of 14 years (unless the court regarded the
nature and circumstances of the offense and history of the
defendant as requiring a higher minimum). Ill.Rev.Stat. ch. 38,
§ 1005-8-1 (1977). Even giving effect to the possibility of
parole under Ill.Rev.Stat. ch. 38, § 1003-3-3, the shortest
sentence McLaren could have served for murder was seven years
(the corresponding figure based on his 20-year minimum sentence
is 10 years). When it is considered that McLaren murdered an
innocent 16 year old boy in an unprovoked attack, this Court
cannot characterize the six years above the minimum sentence
imposed by the trial judge (or three years, assuming early
parole) as "grossly disproportionate" to the severity of
Finally, McLaren argues trial court error in permitting Perea
and Roman to invoke their Fifth Amendment privileges as
witnesses. Evidence pointed to one of them handing the murder
weapon to McLaren. Each was subject to possible indictment as
an accomplice to murder at the time of McLaren's trial.
Moreover, when Roman took the stand he was under indictment for
another murder committed with the gun used by McLaren. Answers
to questions posed by McLaren's counsel could also have
implicated Roman in that other murder.*fn5
No witness may be forced to testify if that testimony
presents a real danger of criminal liability to himself. In re
Folding Carton Antitrust Litigation, 609 F.2d 867, 871 (7th
Cir. 1979) ("only where there is but a fanciful possibility of
prosecution . . . [is] . . . a claim of Fifth Amendment
privilege . . . not well taken"). Roman's and Perea's fear of
prosecution was anything but "fanciful." Indeed the state
prosecutor declined to grant them immunity at the request of
McLaren's counsel. Even were the trial judge in error in
allowing either to invoke the Fifth Amendment — which this
Court does not hold — that decision would not rise to the
level of denying McLaren due process.
This Court determines that no evidentiary hearing is required
(Rule 8(a) following Section 2254). McLaren's Sixth Amendment
claim is dismissed for failure to exhaust state remedies. As
for his remaining contentions, the situation is akin to that
under Fed.R.Civ.P. 56*fn6 where there is no genuine issue as
to any material fact and Fairman is entitled to judgment as a
matter of law. This Court denies McLaren's petition for a writ
of habeas corpus.