United States District Court, Northern District of Illinois, E.D
April 28, 1983
UNITED STATES OF AMERICA EX REL. MELVIN H. SULLIVAN, PETITIONER,
JAMES A. FAIRMAN AND ATTORNEY GENERAL OF ILLINOIS, RESPONDENTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
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
1. whether the trial court erred in denying the
post-trial motion without at least convening an
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
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
Motion To Dismiss
Counsel filed an amended petition to refine Sullivan's
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
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
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
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
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
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
Defendants are entitled to a judgment as a matter of law.
This action is dismissed with prejudice.