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U.S. v. DEROBERTIS

August 5, 1983

UNITED STATES OF AMERICA EX REL. HENRY L. WINTERS, PETITIONER,
v.
RICHARD DEROBERTIS, ET AL., RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

Henry Winters ("Winters") has filed a Verified Amended Petition (the "Amended Petition")*fn1 for a writ of habeas corpus under 28 U.S.C. § 2254 ("Section 2254"). Winters and respondents have also now filed cross motions for summary judgment. For the reasons stated in this memorandum opinion and order (1) decision on both summary judgment motions is deferred and (2) Winters' Amended Petition is dismissed without prejudice.

Background

Following a jury trial Winters was convicted of murder and sentenced to prison for a 40 to 60 year term. Winters' conviction was affirmed on appeal, People v. Winters, 97 Ill. App.3d 288, 52 Ill.Dec. 763, 422 N.E.2d 972 (1st Dist. 1981). Leave to appeal was denied by the Illinois Supreme Court, and the United States Supreme Court denied certiorari, 455 U.S. 923, 102 S.Ct. 1282, 71 L.Ed.2d 464 (1982).

Before the Illinois Appellate Court Winters' appointed counsel raised evidentiary grounds, arguing Winters was denied a fair trial by the admission of eight objects into evidence without proper foundations. 97 Ill.App.3d at 289, 52 Ill.Dec. at 764, 422 N.E.2d at 973. Though the Appellate Court ruled five of those objects were erroneously admitted into evidence, it held "a new trial is not required because there was other convincing and overwhelming evidence upon which to convict the defendant." 97 Ill.App.3d at 296, 52 Ill.Dec. at 302, 422 N.E.2d at 978.

Winters also apparently filed*fn2 a pro se Supplemental Brief and Argument with the Illinois Appellate Court. He addressed some of the particular evidentiary issues raised in his counsel's brief and some related evidentiary matters. But Winters' pro se brief also stated at least the following additional issues:

    1. whether the jury was prejudiced by certain
  prosecutorial comments about (a) an unidentified
  translucent substance taken from the murder victim's
  body cavities and (b) certain unproduced items
  allegedly found on Winters after his arrest;*fn3
    2. whether Winters was denied effective assistance
  of trial counsel; and
    3. whether the totality of the evidence was
  sufficient to support Winters' conviction beyond a
  reasonable doubt.

None of those additional issues was specifically addressed in the Appellate Court's opinion.

In his pro se petition (and supporting brief) for leave to appeal to the Illinois Supreme Court, Winters raised at least five relevant issues:

    1. whether there was adequate foundation for the
  three objects the Appellate Court found had properly
  been admitted into evidence;
    2. whether Winters was proved guilty beyond a
  reasonable doubt;
    3. whether he had ineffective assistance of trial
  counsel;
    4. whether he was prejudiced by prosecutorial
  closing-argument comments on (a) his failure to
  testify and (b) ...

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