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UNITED STATES EX REL. MCLAREN v. FAIRMAN

February 2, 1982

UNITED STATES OF AMERICA EX REL. ALEXANDER MCLAREN, PETITIONER,
v.
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 judgment.*fn3 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 the opinion.

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. ...

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