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U.S. EX REL. ALLEN v. HARDY

January 14, 1983

UNITED STATES OF AMERICA EX REL. EARL ALLEN, PETITIONER,
v.
DR. STEPHEN L. HARDY, RESPONDENT



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

MEMORANDUM OPINION AND ORDER

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.

Facts

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
   doubt.
     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
   jury.

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


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