The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Presently before this Court is respondent's motion for
summary judgment on Feliciano's petition.*fn2 The petition is
based on two interrelated grounds: (1) that Feliciano was
convicted on the basis of an involuntary confession and (2)
that he was denied effective assistance of counsel because his
attorney at trial did not move to suppress the allegedly
coerced confession. The crucial question for our purposes is
whether Feliciano during his pretrial interrogation in fact
invoked his fifth amendment right to remain silent. For this
reason, the Court conducted an evidentiary hearing to fully
explore all the pertinent facts surrounding Feliciano's
Having carefully considered all the relevant evidence,
including that adduced at the evidentiary hearing, the Court
finds that Feliciano did not invoke his right to remain
silent, and that the assistant state's attorney who
interrogated the petitioner did not abuse his fifth amendment
privileges. Respondent's motion for summary judgment,
therefore, will be granted.
Miguel Feliciano and Ray Rogers were convicted in separate
trials of the murder and robbery of Sarah Schuster, an elderly
resident of Chicago, and the burglary of her apartment. The
substance of Feliciano's confession was that on the evening of
the murder Feliciano and Rogers entered Mrs. Schuster's
apartment on the pretense of helping her fix a broken door
lock. Once in the apartment, Rogers forced Mrs. Schuster onto
a bed and directed Feliciano to tie her feet while Rogers
bound her hands and gagged her. While Rogers searched the
bedroom for money, Feliciano went into the apartment hallway.
Attempting to hurry Rogers, Feliciano told him he was going to
their car and would only wait fifteen minutes. Rogers came to
the car within that time and both men proceeded to Feliciano's
apartment where they divided the money Rogers had found in
Mrs. Schuster's apartment. Feliciano's share of the loot was
approximately $120. Mrs. Schuster died of asphyxiation caused
by the gagging.
At approximately 3:00 a.m. on September 15, 1977, Feliciano
was arrested at his home and taken to a police station for
questioning. He was given Miranda warnings both upon arrest and
again at the police station. At approximately 4:00 a.m.,
Feliciano spoke "off the record" with Cook County Assistant
State's Attorney Jeffrey Singer. He told Singer of his
participation in the Schuster robbery and agreed to take police
to a location where Rogers could be found. After he directed
the police to Rogers, Feliciano was returned to the police
station, where Singer requested that Feliciano tell him again
about the robbery, only this time it would be "on the record."
Feliciano agreed and a court reporter was summoned.
The transcribed questioning of Feliciano began at 6:05 a.m.
Singer commenced by again giving the Miranda warnings to
Feliciano. Accordingly, Singer advised Feliciano of his right
to remain silent, of the government's right to use his
statements against him, of his right to have an attorney
present and of his right to have an attorney appointed for him.
Singer's warnings, however, did not include a specific
statement that Feliciano could terminate the questioning at any
time. Immediately after these
warnings, the following conversation took place:
[Singer] Q. Knowing these rights that I have so
advised you of, do you still wish to answer
inquiries that I will pose to you?
Q. Do you wish to answer any of the questions
that I will pose to you?
A. Oh, I'll answer all the ...