Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 6148 -- Prentice H. Marshall, Judge. Published as Table Case at: 718 F.2d 1103.
Cummings, Chief Judge, Pell and Coffey, Circuit Judges.
Petitioner appeals pro se from the district court decision dismissing his habeas petition. For the reasons set forth below, we affirm.
A jury found petitioner Ronnie Cunningham guilty of murder, armed robbery, and two counts of aggravated battery. He was sentenced to 100-150 years for murder, ten to twenty-five years for armed robbery and three to nine years for each count of aggravated battery, with the armed robbery and aggravated battery sentences running concurrently, and consecutive to the murder sentence. The convictions of petitioner and co-defendant Jasper Glenn were upheld by the Illinois Appellate Court in People v. Glenn, 63 Ill.App.3d 344, 380 N.E.2d 390, 20 Ill. Dec. 412 (Fifth Dist. 1978), and leave to appeal was denied by the Illinois Supreme Court.
As described in the Appellate Court opinion, the crime was a particularly vicious one. Petitioner and Glenn*fn1 were convicted of terrorizing and beating an elderly couple and their retarded adult son over a period of several hours early on February 13, 1975. The husband died later that day as a result. The house was ransacked. After an intensive neighborhood investigation, police learned that petitioner and Glenn had been at a party nearby on the night of the 12th. A telephone call from a confidential source named both men as the perpetrators of the crime; both names apparently also surfaced independently. Both defendants were arrested on February 15th. Glenn was advised that he would be prosecuted as an adult; he was questioned and later signed a written confession, which implicated petitioner. Petitioner also confessed. The court later denied Glenn's motion to suppress and Glenn was tried by the court on stipulated evidence. Petitioner was tried by a jury. His motion to suppress was also denied and his confession was introduced against him at trial. The voluntariness of petitioner's confession is not at issue on appeal.
On direct appeal Glenn argued that there was no probable cause for his arrest in the absence of any information about the credibility and reliability of the unnamed source; he also argued that his confession should have been suppressed as the product of an illegal arrest and because the prosecution failed to prove that it was voluntarily made. Petitioner argued only that all sentences should have been concurrent, and that 100-150 years was excessive for murder. All contentions were rejected by the Appellate Court. Petitioner has not filed for post-conviction relief under the Illinois Post-Conviction Hearing Act, Ill. Rev. Stat. ch. 38, sec. 122.
In his habeas petition, petitioner challenged the constitutional validity of his conviction on three grounds: (1) that since his arrest was based on an informant's tip and the informant's identity was not disclosed despite counsel's demand at trial, petitioner was denied his Sixth Amendment right of confrontation and his arrest was without probable cause; (2) that he was denied the right to challenge the voluntariness of Glenn's confession; and (3) that the imposition of consecutive sentences was arbitrary and excessive. Without an evidentiary hearing, Judge Marshall denied all three claims on the merits: Petitioner had no right to the disclosure of the informant's identity and claimed no harm flowing from the allegedly improper arrest other than the prosecution itself; petitioner cannot complain about the violation of another's constitutional rights; and the sentence was imposed within Illinois statutory limits. Petitioner appeals only the probable cause issue and the question of the voluntariness of Glenn's confession. He also argues that the district court should have based its decision on a review of the record rather than on the state court findings.
The State, in its motion to dismiss the habeas petition, noted that petitioner had exhausted his state remedies, and exhaustion was not discussed in the district court opinion. Nevertheless, after Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), a case decided since the district court opinion, we must initially inquire whether petitioner has indeed exhausted his state remedies as to each and every claim presented. While the sentencing issue was presented to the Appellate Court by petitioner on direct appeal, the other two claims present some unusual exhaustion issues. The voluntariness of Glenn's confession was litigated on direct appeal -- but by Glenn, not by petitioner. On the probable cause question, petitioner apparently claims both that the informant implicated him directly and that the informant named Glenn who in turn provided information about petitioner. On direct appeal, only Glenn raised the issue of probable cause for his arrest.
We think the issue of the voluntariness of Glenn's confession has been exhausted -- albeit not by petitioner. Exhaustion is a matter not of jurisdiction, but of comity; the federal courts should not act until the state courts have had an opportunity to correct federal constitutional errors. Rose v. Lundy, 455 U.S. 509, 518, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). The voluntariness issue has been squarely presented to -- and rejected by -- the Illinois Appellate Court. No federalism purpose would be served by requiring petitioner personally to raise the issue again. Alternatively, if the claim were not thereby exhausted, we think the claim must still be viewed as exhausted for purposes of § 2254. The exhaustion requirement refers only to remedies still available at the time of the federal habeas petition. Engle v. Isaac, 456 U.S. 107, 125 n.28, 71 L. Ed. 2d 783, 102 S. Ct. 1558 n. 28 (1982); Perry v. Fairman, 702 F.2d 119, 120 (7th Cir. 1983). Petitioner need not pursue post-conviction relief if it would be futile. See Duckworth v. Serrano, 454 U.S. 1, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981). In People v. James, 46 Ill.2d 71, 74, 263 N.E.2d 5, 7 (1970), the Illinois Supreme Court, in discussing the availability of post-conviction relief, stated that the judgment of a reviewing court is res judicata as to all issues actually decided, and all issues that could have been raised but were not are considered waived. Since petitioner failed to raise the voluntariness of Glenn's confession on direct appeal, we think it would be futile to raise the issue now on post-conviction.
As to the use of the informant, to the extent that petitioner is complaining about the identification of Glenn, the above analysis applies: Glenn presented the issue to the Illinois Appellate court, and assuming that petitioner could have raised the matter on direct appeal, he cannot expect post-conviction relief at this point. If petitioner's complaint is that he was named by the informant, the issue was never presented to the Illinois courts, but it certainly could have been; on post-conviction the Illinois courts would find this issue waived. There is no state remedy now available.
Accordingly, we conclude that state remedies have been exhausted as to all claims presented. The issues were thus properly presented to the district ...