be incorporated within the petition is easily satisfied.
Finally, a federal court is without jurisdiction to consider a
habeas corpus petition "unless it appears that the applicant has
exhausted the remedies available in the courts of the State."
28 U.S.C. § 2254 (b). In addition, "An applicant shall not be
deemed to have exhausted the remedies available in the courts of
the State, within the meaning of this section, if he has the
right under the law of the State to raise, by any available
procedure, the question presented." 28 U.S.C. § 2254 (c).
Ordinarily, it is enough for the petitioner to present the
federal claims before the highest state appellate court. United
States ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir. 1977).
Moreover, the petitioner can satisfy the exhaustion of state
remedies requirement by raising the federal claims in a direct
appeal to the state courts. Irrin v. Dowd, 359 U.S. 394,
79 S.Ct. 825, 3 L.Ed.2d 900 (1959); Brown v. Allen, 344 U.S. 443,
73 S.Ct. 397, 97 L.Ed. 469 (1953). After a careful review of the
record, it is clear that the petitioner has taken the necessary
steps to satisfy the exhaustion requirement. The petitioner has
duly presented the federal claims now before this Court in the
Illinois Appellate Court and in his petition for leave to appeal
to the Supreme Court of Illinois. Based on the aforementioned
reasons, the petitioner has fulfilled the prerequisites for
invoking the habeas corpus jurisdiction of this Court. Therefore,
the Court may now consider the merit of petitioner's contentions.
With regard to the ineffective assistance of counsel claim,
petitioner contends that defense counsel's performance fell far
below the required minimum level of competence in several
respects, including counsel's failure to file key motions,
failure to call crucial witnesses, and failure to allow the
petitioner an ample opportunity to testify to the truth. The
measure of an ineffective assistance of counsel claim is whether
the defendant received "legal assistance which meets the minimum
standard of professional representation." United States of
America v. Richard L. Weston and Drucilla Merida Thompson,
708 F.2d 302, 306 (7th Cir. 1983). A "minimum standard of
professional representation" guarantees a defendant reasonably
effective counsel, not errorless counsel. Id. Moreover, in order
to prevail in a habeas corpus petition asserting want of
effective legal assistance, the petitioner must prove that
counsel's assistance was so limited as to make "a sham or
mockery" of petitioner's trial. United States ex rel. Williams v.
Twomey, 510 F.2d 634, 638 (1975). The defendant must demonstrate
that counsel provided representation amounting to grossly
incompetent professional conduct 708 F.2d at 306 (7th Cir. 1983).
In reviewing an attorney's performance, the Court is not free
to second guess legitimate tactical decisions. Rather, the Court
will only examine those errors not classifiable as an attorney's
tactics and may determine whether they amount to grossly
unprofessional conduct. Id. In the instant case, the defense
attorney's failure to file certain motions and call particular
witnesses, as alleged by petitioner, amount to nothing more than
strategic decisions which are exempted from review, and are
insufficient to warrant a determination of incompetence. In
addition, petitioner's claim that he was not given the
opportunity to testify to the truth at trial is not supported by
the record whatsoever.*fn1 Therefore, because the petitioner's
contentions with respect to the ineffective assistance of counsel
claim comprise merely tactical decisions by defense counsel, are
wholly inconsistent with the record, and do not constitute "a
sham or mockery," the petitioner has not been deprived of his
right to effective assistance of counsel in connection with his
With regard to petitioner's claim that his conviction was based
insufficient evidence, a federal court, in a habeas corpus
proceeding, must consider whether there is sufficient evidence to
justify a rational trier of fact in finding guilt beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,
61 L.Ed.2d 560 (1979); Moore v. Duckworth, 443 U.S. 713,
99 S.Ct. 3088, 61 L.Ed.2d 865 (1979). This standard for reviewing
the sufficiency of the evidence at a state criminal trial requires
the Court to view "the evidence in the light most favorable to
the prosecution." Id. In addition, the 1966 amendment to
28 U.S.C. § 2254 explicitly requires federal courts to give
deference to determinations made by state courts regarding factual
issues which are the predicate for federal constitutional claims.
Wainright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594
(1977). Moreover, a state court judge's resolution of a factual
issue will be presumed to be correct unless the factfinding
process employed by the state was inadequate. Swain v. Pressley,
430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977).
In the instant matter, the petitioner maintains that he was
convicted "because of a mistake," and that "the witnesses wanted
to put him at the scene" and accordingly fabricated their
respective stories. These contentions, however, are wholly
inconsistent with the record and the factual findings of the
state courts. The state trial court concluded, after a careful
review of the evidence, that the petitioner was guilty of murder
beyond a reasonable doubt. The appellate court affirmed the
conviction basing its decision primarily on the fact that four
eyewitnesses, each with an ample opportunity to view the crime,
identified the petitioner as an accomplice to the murder.
Because the record clearly indicates that there is sufficient
evidence to support a rational trier of fact in finding guilt
beyond a reasonable doubt, and in view of the fact that this
Court must give deference to factual determinations made by state
courts, we find no reason upon which to grant the instant writ of
Based on the foregoing, it is clear that there is no genuine
issue of triable fact with respect to the petitioner's claims.
Therefore, this Court's order of June 14, 1983 is vacated,
summary judgment is granted for the respondents, and the writ of
habeas corpus is accordingly denied.
IT IS SO ORDERED.