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April 6, 1983


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


Petitioner Leroy Broadnax is serving an extended term of fourteen years at Stateville Correctional Center following his conviction for robbery. Petitioner took a direct appeal of his conviction to the Illinois Appellate Court, Second District, on two grounds: (1) that he was denied effective assistance of trial counsel because counsel failed to present any evidence in support of pretrial motions challenging the constitutionality of the composition of the grand and petit juries involved in his trial; and (2) that his extended term sentence of fourteen years was excessive and should be reduced. The Illinois Appellate Court affirmed his conviction and the Illinois Supreme Court denied him leave to appeal.

Broadnax now petitions this court for issuance of a writ of habeas corpus on seven grounds: (1) denial of a fair and impartial trial because the grand and petit jury selection processes consistently discriminate against black, Latino, and poor defendants by excluding blacks and others from the jury selection process; (2) denial of effective assistance of counsel because trial counsel failed to prepare a complete defense; (3) and (4) denial of a fair trial because of perjury by the arresting officers before the grand jury and at trial; (5) the unconstitutionality of his extended term sentence; (6) denial of redress of grievances because the Illinois Supreme Court denied petitioner leave to appeal; and (7) denial of constitutional protection from cruel and unusual punishment because the petitioner is imprisoned in a segregated prison.

Respondents move to dismiss the petition on the following grounds: (1) the issues involving the jury selection process and the perjury by the arresting officers were not argued on direct appeal to the Illinois Appellate Court, and thus were waived for purposes of habeas corpus review under the principle of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); (2) the petitioner failed to exhaust an available state remedy concerning the claim of ineffective assistance of counsel; (3) the extended term sentence imposed on Broadnax is constitutional; (4) the Illinois Supreme Court's denial of leave to appeal was within its proper discretion to review appeals; and (5) petitioner has improperly pleaded the claim of cruel and unusual punishment in his imprisonment. For the reasons discussed below, the petition is dismissed.

I. General Principles of Habeas Corpus

While the writ of habeas corpus has been, and continues to be, the "symbol and guardian of individual liberty," Peyton v. Rowe, 391 U.S. 54, 59, 88 S.Ct. 1549, 1552, 20 L.Ed.2d 426 (1968), its use has long been guided by two doctrines: (1) the principle of waiver, which directs the federal judge to deny habeas corpus relief if the ground upon which that relief is sought has been "waived" by the petitioner; and (2) the principle of exhaustion, which requires dismissal of the habeas petition if the state remedies available to the petitioner have not been "exhausted".

A. The Principle of Waiver

One of the basic assumptions underlying our system of law is that a defendant can choose to avoid presenting a defense or argument which is in fact available to him. However, as the Supreme Court noted in Fay v. Noia, 372 U.S. at 438, 83 S.Ct. at 848: ". . . habeas corpus has traditionally been regarded as governed by equitable principles. . . . Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks." The principle of waiver in habeas corpus law simply holds that if the avoidance of or failure to present a defense at trial is construed as some kind of forfeiture or abandonment of that defense, then such avoidance or failure constitutes a waiver of that defense and habeas relief is unavailable.

The original standard for conduct constituting waiver in habeas proceedings was drawn from the classic definition of waiver in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938): "an intentional relinquishment or abandonment of a known right or privilege." Thus, the court in Fay v. Noia held that

  [i]f a habeas applicant . . . understandingly and
  knowingly forewent the privilege of seeking to
  vindicate his federal claims in the state courts,
  whether for strategic, tactical, or any other reasons
  that can fairly be described as the deliberate
  by-passing of state procedures, then it is open to
  the federal court on habeas to deny him all
  relief. . . .

372 U.S. at 439, 83 S.Ct. at 849. The failure to raise on appeal an issue in the state courts would allow the federal court to consider the issue waived, provided the failure was shown to be a "deliberate bypass" of the state courts.

The deliberate bypass standard of Fay, however, soon began to give way to a new standard which required the petitioner to explain the failure to appeal or present the defense. In Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973), the petitioner sought to challenge the composition of the grand jury which indicted him, arguing that the failure to make the challenge before trial, as required by Fed.R.Crim.P. 12(b)(2), was not a deliberate bypass of the proper procedure for making such challenges. The Supreme Court rejected the petitioner's argument, setting aside the deliberate bypass rule in favor of the standard set by the language of Rule 12 itself that failure to challenge jury composition prior to trial is a waiver of the issue absent a showing of cause for failing to raise the issue in a timely manner. 411 U.S. at 242, 93 S.Ct. at 1582-83. Further, the Davis Court required a showing of actual prejudice from the statutory waiver before relief from that waiver is granted. 411 U.S. at 245, 93 S.Ct. at 1584.

The court extended this "cause and prejudice" standard to state procedures governing challenges to grand jury composition in Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and further narrowed the language of Fay v. Noia in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Sykes, the habeas petitioner failed to comply with Florida's "contemporaneous objection" rule, which required a defendant to move to suppress evidence prior to trial or else waive the evidentiary objection for purposes of a state appeal. Finding the language of Fay "sweeping" and likely to encourage "sandbagging" on the part of defense lawyers, 433 U.S. at 87, 89, 97 S.Ct. at 2506, 2507, the Sykes Court adopted the cause and prejudice standard of Davis and Francis. This preference for the cause and prejudice standard in cases involving procedural defaults during trial was reinforced in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). In both cases the petitioners on habeas challenged jury instructions that they did not object to during the trial. In both cases the cause and prejudice standard was applied to the failures to object.

Despite this preference for the cause and prejudice standard the Supreme Court has not made it clear that it is applicable to issues raised on habeas that were not raised on direct appeal in the state courts.*fn1 However, the Seventh Circuit, in Norris v. United States, 687 F.2d 899 (7th Cir. 1982), applied the cause and prejudice standard to failures to appeal by federal prisoners, and extended Norris to failures to appeal by state prisoners in United States, ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir. 1983). Thus, in the Seventh Circuit at least, if a habeas petitioner seeks relief on an issue that he did not object to during trial, or that he failed to raise in his direct appeal, that issue will be considered waived for purposes of habeas review, unless the petitioner can show cause excusing his failure to object or appeal and actual prejudice from the error he alleges took place at trial.

B. The Principle of Exhaustion

The principle of exhaustion is almost a century old. First articulated in Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1866), the principle is now embodied in the federal habeas corpus statute, 28 U.S.C. § 2254(b) and (c).*fn2 The language of the statute makes it clear that until a state prisoner has attempted all possible state remedies to cure his alleged constitutional injury, federal habeas relief is not available. The justification for this requirement lies in principles of comity or respect for the sovereignty of state courts: "It would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct an unconstitutional violation. . . ." Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1949). Comity teaches the federal court that it "should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass on the matter." Id. Applied to federal habeas proceedings, comity requires the federal courts to defer to the state court system and give that system the first chance to correct its alleged constitutional improprieties. If some avenue of state relief is still open to a habeas petitioner the federal court must dismiss the petition and let the petitioner pursue his remaining state remedies. ...

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