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