The opinion of the court was delivered by: Bua, District Judge.
This matter comes before this Court upon a petition for a writ
of habeas corpus under 28 U.S.C. § 2254 (1976). Petitioner is
seeking collateral review of his bench trial which resulted in a
murder conviction. The conviction was affirmed by the Illinois
Appellate Court. People v. Shaw and White, 98 Ill. App.3d 682,
54 Ill.Dec. 84, 424 N.E.2d 834 (1st Dist. 1981). After his
petition for leave to appeal was denied, petitioner filed the
instant petition for a writ of habeas corpus. Previously before
the Court were the parties' cross-motions for summary judgment.
On June 14, 1983, this Court entered an order dismissing the
petition. Respondents then filed a Motion to Alter or Amend the
judgment. For the reasons stated herein, the motion is granted
and summary judgment is entered for the respondents.
On March 14, 1978, at approximately 2:00 A.M., Edward Lewis was
shot and killed while working in his liquor store. Petitioner,
Riccardo White (White), and Philip Shaw (Shaw), were charged with
the murder. Four eyewitnesses to the shooting, Lilian Farmer,
Marva Davis, Grandville Farmer, and Willie Newman, testified at
Mrs. Farmer testified that she was working as a cashier at the
liquor store, together with Mr. Lewis and another employee, Marva
Davis, when the shooting occurred. As Mr. Lewis was locking the
front door in preparation for closing, two men appeared outside.
Mr. Lewis invited the men inside. Immediately following their
entry, the two men proceeded to the front counter where they
purchased a half-pint bottle of gin. Subsequently, White walked
over toward Lewis and began to struggle with him. Mrs. Farmer
momentarily turned away from White and Lewis to wait on a
customer. She then heard four shots. She turned and observed Shaw
pointing a gun in the direction of Lewis, who had been fatally
shot. Later that day, Farmer examined photographs and viewed a
lineup in which
she identified Shaw and White as the perpetrators of the murder.
Mrs. Davis was also working as a cashier at the liquor store at
the time of the shooting. She testified that she had known both
Shaw and White for approximately three years. Moreover, her
testimony regarding the events that took place prior to the
shooting is substantially similar to Mrs. Farmer's account of the
Mr. Farmer was sitting in his parked car, outside the liquor
store, when the shooting occurred. He testified that he witnessed
the shooting through a store window. Although during his trial
testimony he labeled Shaw as the nonshooter, he identified Shaw
as the shooter at both a lineup prior to trial, and a lineup
photo during direct examination.
Willie Newman testified that he was in the liquor store when
the shooting took place. A few days after the incident, pursuant
to a photo display conducted by police officers, Newman identified
both Shaw and White as the two men involved in the shooting.
The instant petition for habeas relief contains two claims.
First, the petitioner alleges that the evidence offered at trial
was insufficient to support a finding of guilt beyond a
reasonable doubt. Second, petitioner asserts that he was denied
his constitutional right to effective assistance of counsel by
virtue of his appointed lawyer's inability to meet the minimum
standards of professional representation.
Before granting review of a petition of this nature, a state
prisoner must fulfill the prerequisites for invoking the habeas
corpus jurisdiction of this Court. The statutory requirements
include custody of the petitioner pursuant to a judgment by a
state court. The custody must be in violation of the
constitution, laws, or treaties of the United States.
Additionally, the petitioner must have exhausted all available
state remedies. 28 U.S.C. § 2254. Moreover, a federal court
must exercise substantial discretion in entertaining such a
petition out of consideration for comity and the orderly
administration of criminal justice. Francis v. Henderson,
425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976).
A petitioner in a habeas corpus proceeding under
28 U.S.C. § 2254 is in custody pursuant to a state court
judgment when he is "subject to restraints not shared by the
public generally." Jones v. Cunningham, 371 U.S. 236,
83 S.Ct. 373, 9 L.Ed.2d 285 (1963). The purpose of the custody
requirement is to preserve the writ for severe restraints on
individual liberty. Hensley v. Municipal Court, San Jose-Milpitas
Judicial Dist., 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294
(1973). In the instant case, the petitioner was convicted of
murder and sentenced to a term of 30 years imprisonment in the
Stateville Correctional Center, Joliet, Illinois. Hence, because
of the nature of petitioner's sentence, he has clearly satisfied
the custody requirement.
Likewise, before a federal court will consider an application
for a writ of habeas corpus, the petitioner must be in custody in
violation of the United States Constitution. 28 U.S.C. § 2254
(a). The petition must allege a "violation of a specific federal
constitutional right" as secured by the states through the
Fourteenth Amendment guarantees of due process and equal
protection. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396,
38 L.Ed.2d 368 (1973); Cuyler v. Sullivan, 446 U.S. 335,
100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). As previously stated, the
instant petition before this Court contains an ineffective
assistance of counsel claim and an insufficiency of the evidence
claim. Ineffective assistance of counsel is a valid basis for
habeas corpus relief under 28 U.S.C. § 2254. United States ex
rel. Maselli v. Reincke, 383 F.2d 129 (2nd Cir. 1967); United
States ex rel. Garrett v. Lane, 464 F. Supp. 793 (N.D.Ill. 1979).
In addition, the due process clause prohibits, without
qualification, the criminal conviction of any person except upon
proof of guilt beyond a reasonable doubt. Thus, by virtue of the
substance of the allegations presented by the petitioner, the
requirement that a constitutional violation
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 ...