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U.S. EX REL. ALLEN v. HARDY
January 14, 1983
UNITED STATES OF AMERICA EX REL. EARL ALLEN, PETITIONER,
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.
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
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 ...
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