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UNITED STATES EX REL. FELICIANO v. LANE

September 15, 1982

UNITED STATES OF AMERICA EX REL. MIGUEL FELICIANO, PETITIONER,
v.
MICHAEL P. LANE, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Miguel Feliciano filed this petition for a writ of habeas corpus seeking review of his state conviction for murder, burglary and robbery. He was sentenced to 20 to 60 years on the murder charge and 6 to 20 years on the burglary and robbery charges, with the sentences to run concurrently.*fn1 Feliciano's conviction was affirmed by the Illinois Appellate Court, People v. Feliciano, 87 Ill. App.3d 1196, 47 Ill. Dec. 272, 414 N.E.2d 1388, consolidated (1st Dist. 1980), and the Illinois Supreme Court has denied leave to appeal. A writ of certiorari has been denied by the United States Supreme Court.

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 interrogation.

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.

I.

Facts of the Case

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?

[Feliciano] A. No.

    Q. Do you wish to answer any of the questions
  that I will pose to you?

A. Oh, I'll answer all the ...


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