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UNITED STATES EX REL. PEEPLES v. GREER

June 14, 1983

UNITED STATES OF AMERICA, EX REL. PHILLIP PEEPLES, PETITIONER,
v.
JAMES GREER, ET AL., RESPONDENTS.



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

ORDER

This case raises the question of whether the due process clause of the Fourteenth Amendment prevents the imposition of an extended term of imprisonment under sentencing procedures which create a substantial risk that the term will be imposed in an arbitrary and capricious manner.

The petitioner, Phillip Peeples, is an indigent inmate at Menard Correctional Center. He has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The petitioner has exhausted his state remedies as required by 28 U.S.C. § 2254(b).

Peeples presents two claims in his petition. First, he argues that the state statute providing for the imposition of an extended sentence violates due process because the statute is vague and permits the arbitrary and capricious imposition of an extended sentence. Second, Peeples argues that the imposition of the extended sentence constitutes cruel and unusual punishment. The challenged statute provides that an extended term of imprisonment may be imposed by the court "[w]hen a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." Ill.Rev.Stat. ch. 38, § 1005-5-3.2(b)(2) (1979).

After considering the petition, the answer, the transcript of the petitioner's state court trial, and the applicable case law, the court concludes that the petition should be denied.

I.

At the time of the offense, the petitioner was employed as a part-time maintenance man at the school. He was classified as an educable mentally handicapped individual, with an I.Q. of approximately 66. He was observed about noontime in the maintenance room which is directly across from the library. A short time later he was again observed in the lunchroom. At that time, large wet stains were seen on his trousers. The petitioner explained the stains by saying that he had run into a small boy carrying red paint. Somewhat later another individual observed stains on the petitioner's socks and leg and, when asked about the stains, the petitioner said that the stains originated from a cut on his leg. No cut was found on the petitioner's leg. At about the same time, the body of the young librarian was discovered; the police were summoned; and the petitioner was arrested.

Expert evidence established that the rag found stuffed into the victim's mouth matched another rag found in the maintenance room. A razor blade found under the body of the victim had been fabricated by the same machine as other razor blades found in the maintenance room. Blood grouping tests showed that the blood on the petitioner's clothing could have come from the victim and was not the petitioner's blood. Pubic hair combings from the victim revealed hairs which could have come from the petitioner and pubic hair found in the petitioner's clothing matched those of the victim in every significant microscopic characteristic.

The petitioner's defense was that he was a person of good character. He also presented the testimony of a psychiatrist who said that the petitioner, who was eighteen, was retarded with the mental capacity of the average eleven and one-half year old. The psychiatrist equivocated in his testimony as to whether the petitioner could conform his conduct to the requirements of the law or appreciate the criminality of his conduct.

In rebuttal the state presented a clinical psychologist who testified that the defendant was retarded but not severely. The psychologist further testified that he found no signs or symptoms which would lead him to believe that the petitioner lacked sufficient capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

In a bench trial the court found the petitioner guilty of murder and sentenced him to an extended term of 80 years pursuant to § 5-8-2(a)(1) of the Unified Code of Corrections which permits an extended term of imprisonment for murder. See Ill.Rev.Stat. ch. 38, § 1005-8-2(a)(1) (1979). Specifically, the judge found that the petitioner's offense had been accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. See Ill.Rev.Stat. ch. 38, § 1005-5-3.2(b)(2) (1979). On July 22, 1981, the Illinois Appellate Court, in an unpublished opinion, affirmed the petitioner's conviction for murder. The Illinois Supreme Court denied leave to appeal on November 30, 1981.

II.

The petitioner bases his argument that the statute under which he was sentenced is vague and ambiguous and permits the arbitrary and capricious imposition of extended imprisonment on Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality). In Godfrey v. Georgia the United States Supreme Court found a Georgia statute unconstitutional which permitted the imposition of the death penalty if the jury found that the offense "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." The Court said the statute was unconstitutionally vague as applied to the petitioner in that it allowed the arbitrary and capricious imposition of the death penalty.

Peeples argues that the reasoning of Godfrey v. Georgia applies equally to the Illinois statute challenged here. Specifically, the petitioner argues that no clear, objective criteria guide the application of the Illinois statute and that no restraint exists on the arbitrary and capricious infliction of the enhanced penalty allowed under the statute. Finally, the petitioner argues that no meaningful basis exists for distinguishing the few cases in which an extended term of imprisonment has been imposed from the other cases where an extended term has not been imposed. See Godfrey v. Georgia, 446 U.S. at 427-28, 100 S.Ct. at 1764-65.

The petitioner's second position is that the imposition of an extended term of imprisonment constitutes cruel and unusual punishment because his limited mental abilities prevented him from formulating the necessary mental state to merit the imposition of an extended term. Apparently the petitioner is arguing that he does not have the mental ability to commit a crime accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.

III.

In their memorandum of law opposing the issuance of the writ, the respondents first argue that the claims raised by the petitioner have been rejected repeatedly by the Illinois courts. See People v. LaPointe, 88 Ill.2d 482, 59 Ill.Dec. 59, 431 N.E.2d 344 (1982); People v. Andrews, 105 Ill. App.3d 1109, 61 Ill.Dec. 865, 435 N.E.2d 706 (5th Dist. 1982); People v. Kulpa, 102 Ill. App.3d 571, 58 Ill.Dec. 222, 430 N.E.2d 164 (1st Dist. 1981); People v. Devine, 98 Ill. App.3d 914, 54 Ill.Dec. 73, 424 N.E.2d 823 (3rd Dist. 1981); People v. Turner, 93 Ill. App.3d 61, 48 Ill.Dec. 627, 416 N.E.2d 1149 (1st Dist. 1981); People v. Merchel, 91 Ill. App.3d 285, 46 Ill.Dec. 751, 414 N.E.2d 804 (5th Dist. 1980); People v. Nobles, 83 Ill. App.3d 711, 38 Ill.Dec. 906, 404 N.E.2d 330 (4th Dist. 1980).

The Illinois courts, the respondents assert, have defined the words in the statute and have given these words their ordinary, popularly understood meaning. See People v. LaPointe, 88 Ill.2d 482, 499, 59 Ill.Dec. 59, 431 N.E.2d 344 (1982). The respondents point out that the Illinois Appellate Court did define the statutory terms in its unpublished order affirming Peeples' conviction for murder. See People v. Peeples, 97 Ill. App.3d 1202, 55 Ill.Dec. 914, 426 N.E.2d 1288 (4th Dist. 1981), pages 4-6. Consequently, they urge that the Illinois statute is not vague and that it does not permit the arbitrary and capricious imposition of an extended term of imprisonment. Moreover, in People v. Merchel, 91 Ill. App.3d 285, 294, 46 Ill.Dec. 751, 414 N.E.2d 804 (5th Dist. 1980), the court determined that the statute provided a meaningful basis for distinguishing the cases in which the penalty was imposed from the many cases in which it was not.

The respondents argue that the rationale established in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), should not apply to the statute questioned in this petition. The respondents say the statute in Godfrey v. Georgia merited closer scrutiny than the statute here because the Georgia statute dealt with the death penalty and not with an extended term of imprisonment. The respondents rely upon Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976), to establish that the language in the Illinois statute need not be held unconstitutionally vague.

Finally, the respondents say that the imposition of the extended term of imprisonment was merited in Peeples' case and that both the trial court and the appellate court made that determination. The respondents properly observe that a state court's findings of fact are entitled to a presumption of correctness under § 2254(d) and Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

IV.

The due process issue raised by this petition apparently is one of first impression which has not been considered by any federal court sitting in Illinois. Cf. United States ex rel. Hudson v. DeRobertis, No. 82-4048 (N.D.Ill. Feb. 7, 1983) (in which the petitioner did not challenge the constitutionality of his extended sentence but argued that the trial judge abused his discretion in sentencing the petitioner to an extended term of imprisonment).

Peeples is not challenging the length of his imprisonment. He is not arguing that his 80 year sentence is so grossly disproportionate to his crime that the sentence is cruel and unusual punishment proscribed by the Eighth and Fourteenth Amendments. Cf. Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). Indeed, if the statute provided that the penalty for murder was a term of imprisonment between 20 and 80 years, the petitioner could not challenge his 80 year sentence as violative of the Eighth Amendment. The United States Supreme Court has never held a sentence for a term of years within statutory limits to be, by itself, cruel and unusual punishment. See Hutto v. Davis, 454 U.S. at 372, 102 S.Ct. at 704.

Peeples is challenging the Illinois statute as violative of the Fourteenth Amendment due process clause. He claims that the statute's vagueness permits the arbitrary and capricious enforcement of its provisions and that the statute violates the principles announced in ...


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