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UNITED STATES EX REL. MCLAREN v. FAIRMAN
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
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
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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