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United States District Court, Northern District of Illinois, Eastern Division

January 14, 1983


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


Earl Allen ("Allen") asserts four grounds for relief in his pro se petition*fn1 for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent Dr. Stephen Hardy ("Hardy") has moved for summary judgment. For the reasons stated in this memorandum opinion and order, Hardy's motion is granted as to two of Allen's claims. Allen and Hardy have suggested, and this Court holds, ruling should be deferred on Hardy's motion as to Allen's two other claims pending the Illinois Supreme Court's decision in the appeal of People v. Payne, 106 Ill. App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (1st Dist. 1982). Those claims relate to the selection and racial composition of the jury that convicted Allen.


Allen is now confined in the Psychiatrist Unit of the Menard
Correctional Center, having been convicted of two murders and sentenced
to two concurrent 100 to 300-year prison terms. On direct appeal his
conviction was affirmed, People v. Allen, 96 Ill. App.3d 871,  52
Ill.Dec. 419, 422 N.E.2d 100 (1st Dist. 1981).

Allen argued on appeal (96 Ill.App.3d at 871-72, 52 Ill.Dec. at 420, 422 N.E.2d at 101):

     1. [H]e was denied his constitutional rights to an
   impartial jury where the State exercised its
   peremptory challenges to exclude blacks and Latinos
   from the jury.*fn2

     2. [H]e was prejudiced by the prosecutor's
   comment during closing argument.

On the authority of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) the Appellate Court rejected Allen's first contention, finding he had not shown the State systematically excluded blacks and Latinos from juries, 96 Ill.App.3d at 875-76, 878, 52 Ill.Dec. at 423, 425, 422 N.E.2d at 104, 106. Allen's second contention was rejected because he had not been prejudiced by the prosecutor's reference in closing argument to excluded evidence that may have suggested Allen had a prior and unrelated conviction, 96 Ill.App.3d at 878-79, 52 Ill. Dec. at 425, 422 N.E.2d at 106.

Allen's Petition ¶ 11 asserts:

     1. He was not proved guilty beyond a reasonable

     2. He was denied his right to trial by an impartial
   jury because of the prosecutors use of their
   peremptory challenges.

     3. He was prejudiced by a prosecutor's comment
   during closing argument.

     4. He was [unlawfully] convicted by an all-white

His first and third grounds will be dealt with first, followed by a concurrent discussion of the second and fourth.

Proof Beyond a Reasonable Doubt

Allen unquestionably did not raise on direct appeal whether he was proved guilty beyond a reasonable doubt. That failure constituted a waiver under Illinois law. People v. James, 46 Ill.2d 71, 268 N.E.2d 5 (1970). Hardy argues (Mem. 3-4) Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), as interpreted and extended by our Court of Appeals in United States ex rel. Williams v. Franzen, 687 F.2d 944, 950 (7th Cir. 1982), therefore bars Allen from raising the reasonable doubt issue in this habeas proceeding. Wainwright and Williams require a showing of cause for and prejudice resulting from failure to appeal an issue, and Allen assertedly has not made those showings.*fn3

Allen responds (Ans. Mem. 5) the Appellate Court did adjudicate the issue and specifically found "the evidence establishing defendant's guilt was overwhelming." 96 Ill.App.3d at 879, 52 Ill.Dec. at 425, 422 N.E.2d at 106. In turn, Hardy retorts (R. Mem. 3) the court's comment was in the context of its handling Allen's closing-argu| ment-prejudice claim and does not reflect an adjudication on the merits.

[1] When a state court actually rules on the merits of an issue "waived" by failure to raise the issue on appeal, Wainwright's cause-prejudice standard need not be met to obtain habeas review. See Williams, 687 F.2d at 951. Here the Illinois Appellate Court specifically noted Allen did "not contest the sufficiency of the evidence against him," but it went on to pronounce that evidence "overwhelming" upon "[a] careful review of the record." 96 Ill.App.3d at 879, 52 Ill.Dec. at 425, 422 N.E.2d at 106. That certainly has the ring of a beyond-a-reasonable-doubt determination, perhaps enough to avoid Wainwright.

But such avoidance would give Allen cold comfort. It is unnecessary to decide whether the Appellate Court's "overwhelming" label fits the evidence. What controls here is that the evidence is at least sufficient to meet the constitutional standard of Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979) (footnote omitted):

   We hold that in a challenge to a state criminal
   conviction brought under 28 U.S.C. § 2254
   — if the settled procedural prerequisites for
   such a claim have otherwise been satisfied —
   the applicant is entitled to habeas corpus relief if
   it is found that upon the record evidence adduced at
   the trial no rational trier of fact could have found
   proof of guilt beyond a reasonable doubt.

[2] Allen's counsel concedes as much (Ans. Mem. 6), as he must in light of the record. Two witnesses and a police officer testified to four statements by one victim naming Allen as the assailant before she died. 96 Ill.App.3d at 873-74, 52 Ill.Dec. at 421-22, 422 N.E.2d at 102-08. There is no genuine issue of fact material to the question whether the jury could rationally have concluded the evidence proved Allen guilty beyond a reasonable doubt. Because the constitutional requirement is met, compare Jackson, 443 U.S. at 325-26, 99 S.Ct. at 2792-93, Hardy is entitled to judgment on Allen's reasonable-doubt claim as a matter of law.

Prejudicial Prosecutorial Comment

[3] Closing argument by the prosecutor referred (over defense objection) to stricken testimony by a police officer indicating he had known Allen for ten years. 96 Ill. App.3d at 878-79, 52 Ill.Dec. at 425, 422 N.E.2d at 106. Allen claims the prosecutor's comment, possibly suggesting Allen's unrelated criminal past, prejudiced Allen and therefore entitles him to habeas relief.*fn4

But Allen can succeed on that claim only if he shows the prosecutor's comment rendered his trial so unfair as to amount to a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974). As the Appellate Court noted, the comment involved only an assertion the policeman knew Allen for ten years, not any direct assertion of Allen's past criminal record. 96 Ill.App.3d at 879, 52 Ill.Dec. at 425, 422 N.E.2d at 106. Again the total evidence, even with all inferences running in Allen's favor, establishes as a matter of law the prosecutor's comment did not render Allen's trial so "fundamentally unfair as to deny him due process." Donnelly, 416 U.S. at 645, 94 S.Ct. at 1872.*fn5 Hardy is entitled to summary judgment on this claim too.

Peremptory Challenges and Jury Composition

[4] Allen's counsel suggests (Ans. Mem. 2 n. 1) any claim arising from Allen's fourth ground (conviction by an all-white jury) is subsumed within his second ground (the prosecution's misuse of peremptory challenges). They might nonetheless be viewed as distinct analytically: Peremptory challenge misuse goes to the question of racial bias in the process of selecting individuals for a jury, while the jury's racial composition goes to the result of that process and asks whether the Constitution permits or mandates juries of certain demographic characteristics for certain defendants.

However, the two issues certainly tend to blend in practice and are often treated as two sides of the same coin. See, e.g., Apodaca v. Oregon, 406 U.S. 404, 413-14, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972); Easter v. Estelle, 609 F.2d 756, 759-60 (5th Cir. 1980). For this reason, and because Allen's petition ¶ 11(B) and (D) also meld the two issues, they will be treated together.*fn6

As already noted, the Appellate Court relied on the plurality opinion in Swain v. Alabama to deny Allen's appeal on the peremptory challenges issue. Since then, however, another panel of the same Illinois Appellate Court has rejected the notion Swain, an equal protection case, is controlling on the Sixth Amendment impartial jury issue. Payne, 106 Ill.App.3d at 1041-42, 62 Ill.Dec. at 750, 436 N.E.2d at 1052. And this dispute has continued. See People v. Gosberry, 109 Ill. App.3d 674, 675-76, 678-83, 65 Ill.Dec. 99, 100-101, 103-106, 440 N.E.2d 954, 955-56, 958-61 (1st Dist. 1982); People v. Teague, 108 Ill. App.3d 891, 895-97, 64 Ill.Dec. 401, 405-06, 439 N.E.2d 1066, 1070-71 (1st Dist. 1982). Obviously the Illinois Supreme Court has granted discretionary review of Payne (leave to appeal allowed, September Term 1982) to resolve the issue.

That prospect has led the parties to agree Allen's habeas claim ought to be held in abeyance. Ans. Mem. 5; R. Mem. 1. This Court concurs for two reasons:

     1. If the Illinois Supreme Court affirms Payne,
   Allen will likely have recourse to the Illinois
   Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38,
   §§ 122-1 to 122-7 (the "Act").*fn7

     2. If after the Illinois Supreme Court's resolution
   of Payne Allen is without a state court remedy, he
   may respond to Hardy's summary judgment motion by
   submitting documentary or other evidence on the
   systematic exclusion of minorities from Cook County
   juries. Such evidence is relevant to disposition of
   Hardy's motion under Swain itself. See 380 U.S. at
   223, 226-27, 85 S.Ct. at 837, 839.

Ruling is therefore deferred as to Allen's claims he was prejudiced by (1) the prosecutors' use of peremptory challenges and (2) his trial by an all-white jury.


There is no genuine issue of material fact, and Hardy is entitled to a judgment as a matter of law, as to Allen's claims (1) he was not proved guilty beyond a reasonable doubt and (2) he was prejudiced by the prosecutor's closing argument reference to stricken evidence. This Court defers ruling as to Allen's claims (1) he was denied his right to trial by an impartial jury by the prosecutors' use of their peremptory challenges and (2) he was convicted (unconstitutionally so) by an all-white jury.

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