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UNITED STATES EX REL. SULLIVAN v. FAIRMAN

April 28, 1983

UNITED STATES OF AMERICA EX REL. MELVIN H. SULLIVAN, PETITIONER,
v.
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.

Background

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.

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
  Amendment.*fn1

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, ยงยง 122-1 to 122-7. Instead he instituted this habeas corpus proceeding pro se. ...


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