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
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. ...