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United States District Court, Northern District of Illinois, E.D

April 28, 1983


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


Melvin H. Sullivan ("Sullivan") has brought this 28 U.S.C. § 2254 ("Section 2254") habeas corpus proceeding against Pontiac Correctional Center Warden James A. Fairman and the Attorney General of Illinois. Respondents now move to dismiss Sullivan's amended habeas corpus petition. For the reasons stated in this memorandum opinion and order, respondents' motion is granted.


Sullivan was charged with the murder of Michael Grayson ("Grayson"), who was fatally shot at 2:30 a.m. March 18, 1979, in front of the Pepperbox Lounge (the "Pepperbox") in Chicago. At the bench trial the State's principal witness was Elnora Barnes ("Barnes"), a prostitute who had spent most evenings during the two weeks preceding the slaying with Sullivan at the Westlane Hotel. Barnes's version of events directly implicated Sullivan in the crime:

Late in the evening of March 17 Barnes went to the Pepperbox to find Sullivan. When she arrived she saw Sullivan and Grayson talking and drinking together. Sullivan (who had red hair and a beard) was wearing a long, grey coat. At some point she also noticed Sullivan still had the gun she had seen him hide in his pants that morning.

Some time after 1 a.m. Barnes left the tavern with Sullivan, Grayson and two other individuals named Cynthia and Cary. Outside the bar Sullivan confided to Barnes his plans to rob Grayson. As Barnes then crossed the street she heard a shot. Turning around, she saw Grayson collapse near Sullivan and Cary. Barnes then ran to her hotel room. When Sullivan arrived there about 30 minutes later, Barnes asked him what was wrong. Sullivan responded, "I just killed a nigger" at the corner. (Report of Proceedings ("R.") 57).

To buttress Barnes's account the State called two other witnesses, Pepperbox employee Sam Titus ("Titus") and Pepperbox patron Willie Davis ("Davis"). Titus testified he saw Sullivan at the lounge that night. However, he also acknowledged he neither witnessed the actual shooting nor recalled when Sullivan arrived or left the bar. Davis' testimony was more incriminating. Just before the killing occurred, Davis went outside the Pepperbox for some fresh air. At that time he heard the shot and saw two women running away. Davis also saw a person in a long grey coat fleeing the scene, but he could not identify that individual's sex. Davis recalled seeing Sullivan in the Pepperbox both after midnight and earlier in the evening.

Sullivan called three witnesses to establish an alibi defense: Sullivan himself, his aunt Kathleen Sullivan and his cousin Linda Lee Sullivan. Sullivan testified he left the Pepperbox by himself shortly before midnight. He walked two blocks to his aunt's home, where he was living, and rang the doorbell. His aunt looked out the upstairs window, saw Sullivan at the front steps and tossed him the door key. Sullivan then opened the door and went to bed. Sullivan also testified his intimate relationship with Barnes had degenerated into one of bitter animosity. Though he admitted seeing Barnes the morning of March 18, Sullivan insisted he had not seen her at the Pepperbox that previous evening.

Sullivan's aunt largely corroborated his story. According to her Sullivan came home at 1:00 a.m. on March 18, let himself in the door (after she threw down the key) and went directly to bed. Sullivan's cousin's testimony was of little assistance, for she was sound asleep when Sullivan supposedly came home.

After those defense witnesses testified, Sullivan's appointed counsel moved for a continuance to enable him to interview certain witnesses listed by the State in its discovery response as well as some other unidentified witnesses. That motion was denied. After closing arguments the court found Sullivan guilty and sentenced him to a 20-year term.

After retaining private counsel, Sullivan moved for a new trial on the basis of newly discovered evidence. That new evidence consisted of affidavits from the five occurrence witnesses identified in the State's response to discovery. In substance each affidavit indicated Sullivan was not the assailant. That motion too was denied, this time because the exculpatory evidence could have been discovered before trial had Sullivan (or more accurately his counsel) been diligent.

Next Sullivan (at that point represented by the state appellate defender) appealed his conviction. Three of the four issues presented for review concerned the five proposed witnesses:

    1. whether the trial court erred in denying the
  post-trial motion without at least convening an
  evidentiary hearing;

    2. whether the trial court erred in denying the
  motion for continuance; and

    3. whether trial counsel's failure to interview
  those witnesses or secure their presence for
  trial denied Sullivan effective assistance of
  counsel, as guaranteed by the Sixth

Unpersuaded by any of Sullivan's arguments, the Illinois Appellate Court affirmed his conviction. People v. Sullivan, 95 Ill. App.3d 571, 51 Ill.Dec. 60, 420 N.E.2d 474 (1st Dist. 1981). Leave to appeal was denied by the Illinois Supreme Court.

Sullivan did not pursue any state remedies under the Illinois Post-Conviction Act (the "Act"), Ill.Rev.Stat. ch. 38, §§ 122-1 to 122-7. Instead he instituted this habeas corpus proceeding pro se. This Court obtained appointed counsel to represent him.

Motion To Dismiss

Counsel filed an amended petition to refine Sullivan's claims, asserting:

    1. Two trial court actions infringed Sullivan's
  due process rights: denial of the motion for new
  trial without holding an evidentiary hearing, and
  denial of the motion for continuance.

    2. Trial counsel's failure to interview and
  call the five occurrence witnesses violated
  Sullivan's Sixth Amendment right to counsel.

Defendants advance three grounds for dismissal:

    1. Because both claims could be presented in a
  state post-conviction proceeding, Sullivan has
  not exhausted available state remedies, as
  required by Section 2254(b).

    2. Sullivan's failure to raise his due process
  claims on direct appeal was a procedural default
  that bars habeas review under the cause-prejudice
  standard of Wainwright v. Sykes, 433 U.S. 72, 97
  S.Ct. 2497, 53 L.Ed.2d 594 (1977).

    3. Trial counsel's inaction did not impair
  Sullivan's Sixth Amendment rights.

These contentions will be examined in turn.

1. Exhaustion of State Remedies

Defendants' exhaustion argument is untenable. True enough, Sullivan could file a post-conviction petition under the Act, which confers standing on "[a]ny person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States." Ill.Rev.Stat. ch. 38, § 122-1. But Illinois doctrines of res judicata and waiver would preclude post-conviction review of either habeas claim on the merits. People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970) held those concepts foreclosed consideration of any issues that were or could have been presented on direct appeal from a conviction. And it is well settled in this Circuit that "a petition for a writ of habeas corpus should be dismissed for failure to exhaust this [post-conviction] remedy `only if there is direct precedent indicating that under the particular circumstances of a prisoner's case the waiver [and res judicata] doctrine[s] will be relaxed.'" Perry v. Fairman, 702 F.2d 119, 121 (7th Cir. 1983), quoting United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1386 (7th Cir. 1974) (first bracket added; second and third brackets in original).

Here res judicata and waiver squarely apply:

    1. Sullivan's ineffective assistance claim was
  considered and rejected by the Illinois Appellate
  Court, bringing res judicata considerations into

    2. Sullivan's due process claim implicates
  waiver notions, for it could have been but was
  not mentioned on direct appeal.*fn2 See infra at

Moreover there is no "direct precedent" suggesting an Illinois court would ignore those threshold obstacles if Sullivan sought post-conviction relief:

    1. Illinois' "non-record evidence" exception to
  the waiver and res judicata doctrines is
  unavailing, for both habeas claims rely
  exclusively on evidence contained in the
  appellate record. See United States ex rel.
  Williams v. Israel, 556 F.2d 865, 866 (7th Cir.
  1977) (claims "based in substantial part on
  evidence outside the record" are not waived for
  purposes of the Act). Sullivan's current Sixth
  Amendment claim is coextensive in factual terms
  with the ineffective counsel contentions previously
  raised on direct appeal. As for Sullivan's due
  process claim, that draws on the same factual
  matrix that bounded two other arguments posed to
  the Illinois Appellate Court — that the trial
  court abused its discretion in denying Sullivan's
  motions for a new trial and a continuance.

    2. Illinois' "fundamental fairness" exception
  to the waiver rule is deemed inapposite, for none
  of the handful of cases invoking that concept
  involve circumstances "substantially the same as"
  Sullivan's situation. See Brantley, 502 F.2d at

Accordingly Sullivan has exhausted all available state remedies as to both habeas claims.

2. Applicability of Wainwright v. Sykes

Exhaustion only begins, rather than ends, the inquiry. Under Wainwright's "waiver" doctrine, a state prisoner who fails to comply with state procedural requirements for judicial review of an issue cannot assert that issue in a federal habeas proceeding unless he demonstrates just cause for and prejudice from his procedural lapse.

That waiver concept is fatal to Sullivan's due process count. In his motions for a new trial and continuance and his appeal from the denial of those motions, Sullivan never advanced a due process (or any other federal constitutional) justification, relying solely on state law.*fn3 That omission frustrates the comity notions that underlie the waiver doctrine (as well as the statutory exhaustion requirement), for the trial and appellate courts were deprived of a meaningful opportunity to cure any constitutional infirmity in Sullivan's trial. State courts cannot be expected to divine latent federal constitutional issues lurking within the factual foundations of asserted state law claims. Cf. Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (for exhaustion purposes, "petitioner must have made the same factual complaint to the state court . . . [and] his state court brief must have contained words, such as `under the due process clause' or `under the Constitution,' that expressly spell out the petitioner's reliance on the United States Constitution as his legal basis for relief"); Wilson v. Fogg, 571 F.2d 91, 92 (3d Cir. 1978) ("Where a petitioner has raised his claim in the state court solely as a violation of state statutes and not on the basis of an invasion of his federal constitutional rights, dismissal by the federal court is mandated" under the exhaustion doctrine).*fn4

By failing to present his due process claims to any state court, Sullivan has forfeited habeas review unless Wainwright's conjunctive requirements of cause and prejudice are met. See also United States ex rel. Spurlark v. Wolff, 699 F.2d 354, 357-61 (7th Cir. 1983) (extending Wainwright's cause-prejudice standard to failure-to-appeal cases). Sullivan has not even attempted to satisfy either branch of Wainwright. Accordingly Sullivan's procedural default bars this Court from assessing his due process claim.

3. Sixth Amendment Rights

Sullivan also fails on his ineffectiveness of counsel count. To prevail on that claim, Sullivan must prove the overall performance of trial counsel Mark Lieberman ("Lieberman") (1) fell short of "minimum professional standards" and (2) prejudiced the outcome of the trial. Wade v. Franzen, 678 F.2d 56, 58-59 (7th Cir. 1982).

Guzzardo v. Bengston, 643 F.2d 1300, 1305 (7th Cir. 1981) spells out the constitutional test:

  A minimum standard of professional representation
  does not mean representation free of questionable
  tactical decisions or even what hindsight might
  suggest were mistakes. It means representation
  without serious prejudicial blunders which have
  foreseeable adverse consequences.

Seizing on Wade's admonition that "the lawyer's handling of the defense be evaluated as a whole" (678 F.2d at 58, emphasis added), defendants claim whatever blunder Lieberman committed by failing to interview and call the five witnesses was "redeemed" by his otherwise flawless performance. Some of their observations are well-taken, for the trial transcript confirms:

    1. Lieberman effectively developed Sullivan's
  alibi defense.

    2. Lieberman performed commendably during
  opening and closing arguments and in
  cross-examining prosecution witnesses.

On the present record, however, this Court is hesitant to discount the extent to which Lieberman's failure to investigate witnesses infected the calibre of his overall representation. Even a single "blunder [can be] so egregious as to be inconsistent with the observance of minimum professional standards." Wade, 678 F.2d at 59. See also Hawkman v. Parratt, 661 F.2d 1161, 1168-69 (8th Cir. 1981) (to comport with Sixth Amendment standard of competency, counsel must independently interview witnesses before advising defendant to plead guilty); Hines v. Enomoto, 658 F.2d 667, 676 (9th Cir. 1981) ("failure to interview potential witnesses can constitute ineffective assistance of counsel"); Wilson v. Cowan, 578 F.2d 166, 168 (6th Cir. 1978) (counsel's failure to call witnesses who could have supported the only defense available rendered his representation constitutionally defective); United States ex rel. Cosey v. Wolff, 526 F. Supp. 788, 790-92 (N.D.Ill. 1981) (counsel's failure to produce a single witness when at least five were known to be available offended minimum professional standards), rev'd on other grounds, 682 F.2d 691 (7th Cir. 1982). And as Sullivan points out, the record (viewed in the light most favorable to him) contains enough evidence to create an inference that Lieberman's oversight rendered constitutional proportions:

    1. In response to discovery requests Lieberman
  received copies of police reports, attached to
  which were summaries of statements from various
  witnesses, including the five witnesses in
  question — Vernell Davis ("Davis"), Jedda
  Sullivan, Leroy Johnson ("Johnson"), June Brown

  ("Brown") and Arthur Malone ("Malone"). According
  to their statements, all five had seen the
  assailant at close range, and at least three of
  them believed they could make a positive
  identification.*fn5 Furthermore the Jedda
  Sullivan and Davis accounts somewhat conflicted
  with Barnes's version of events.*fn6 Finally the
  March 18 police report (based on the Brown and
  Malone interviews) described the offender as
  having a black (not red) afro. In short, the
  investigative materials arguably should have
  alerted Lieberman as to the exculpatory potential
  of testimony from the five witnesses.

    2. According to the Vernell Davis affidavit, he
  told Lieberman on or before February 6, 1980 (the
  date he had been subpoenaed to appear at
  Sullivan's trial) (a) he had been with Grayson
  continuously throughout the night of the
  shooting, (b) neither he nor Grayson went inside
  the Pepperbox that evening and (c) he was certain
  Sullivan was not the assailant.*fn7

Because all factual issues must be resolved against defendants at this juncture, this Court must presume Lieberman's lapse jeopardized Sullivan's Sixth Amendment rights.

Once again the analysis does not end with that conclusion. This Court must still determine whether any constitutional breach by Lieberman was a harmless error. On that score the Illinois Appellate Court said (95 Ill. App.3d at 575, 51 Ill.Dec. at 63-64, 420 N.E.2d at 477-78):

  Defendant's counsel attached five affidavits to
  his post-trial motion. Two affiants were walking
  with the deceased when the shooting occurred.
  Both stated to the police after the shooting that
  they did not get a good look at the offender.
  Hence the weight of their affidavits that
  defendant was not the offender would have been
  substantially reduced on cross-examination. Their
  affidavits also recited that deceased was not in
  the Pepperbox that night. We do not believe that
  such a collateral contradiction viewed against
  the testimony of all the State's witnesses would
  change the result of the trial in light of the
  overwhelming evidence against defendant.

  The affidavit of Leroy, a/k/a "Candy" Johnson, a
  male prostitute, stated that he was standing at
  the corner when the shooting occurred. It also
  recited that Johnson told police he could
  identify the assailant if he saw him again and
  that he attended high school with the assailant.
  In connection with the motion for a new trial, a
  photo of defendant was shown to Johnson and he
  stated that defendant was not the assailant. The
  affidavits of June Brown and Arthur Malone
  contain similar assertions. Although such
  testimony at trial certainly would have been
  favorable to defendant, it would not dictate a
  different result. In this regard, we think it
  highly significant that this was a trial without
  a jury. The trial court heard the testimony of
  Elnora Barnes not only as to what she viewed at
  the shooting but also as to defendant's
  admissions made to her before and after the
  killing. The trial court also heard defendant's
  alibi. The judge observed the demeanor of the
  witnesses, weighed their credibility, and
  believed Barnes. Moreover, the same judge
  considered the affidavits and heard in argument
  the substance of the affiants' testimony.
  Defendant premised his post-trial motion on

  ineffective assistance of counsel as well as on
  newly discovered evidence. After considering
  affiants' assertions, the same judge adhered to
  his ruling and denied the post-trial motion. We
  believe it is clear that had the trial court
  heard the testimony of affiants, the outcome
  would have been the same. Defendant has not shown
  the requisite prejudice stemming from the absence
  of affiants' testimony. Thus, the conduct of
  defendant's appointed counsel did not give rise
  to reversible error in the present case.

As for the factual aspects of that determination, Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981) makes the Appellate Court's holdings dispositive. And as for the legal conclusions, this Court is persuaded for the same reasons stated in the extended quotation. It too finds "highly significant" the trial court's adherence to its earlier determination of guilt after considering the affidavits of the five witnesses (and the potential value of observing their demeanor). After all, in that context the trial court's evaluation had effectively erased any impact of Lieberman's blunder.

Under such circumstances, "it still is clear beyond a reasonable doubt that [Sullivan] would have been convicted of [Grayson's] murder." Wade, 678 F.2d at 59. Thus the harmless error doctrine requires dismissal of Sullivan's ineffective assistance claim.


Defendants are entitled to a judgment as a matter of law. This action is dismissed with prejudice.

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