The opinion of the court was delivered by: Bua, District Judge.
Sam Gayden ("Gayden") has filed a habeas corpus petition
against Kenneth McGinnis, Warden of Stateville Correctional
Center ("McGinnis") and others. Gayden advances two grounds
1) The admission of a preliminary hearing transcript
violated Gayden's right to confront the witness; and
2) The State did not prove Gayden guilty beyond a reasonable
McGinnis now moves for summary judgment under Fed.R.Civ.P.
56 claiming that there is no genuine issue as to any material
fact and that he is entitled to judgment as a matter of law.
For the reasons stated herein, this Court grants McGinnis'
motion and denies the writ. This Court's jurisdiction rests
upon 28 U.S.C. § 2254.*fn2
On March 1, 1980, Sammie Jones ("Jones") and his employee,
Morris Standifer ("Standifer") were robbed by two armed men as
Jones and Standifer closed Jones' gas station located on the
south side of Chicago. Jones was shot in the hand by one of
the robbers during a struggle. Petitioner Gayden and Moses
Ladd ("Ladd") were arrested for the crime and charged with
armed robbery, armed violence and aggravated battery.
At a preliminary hearing on June 25, 1980, Jones testified
that the area was lighted when the robbery occurred and that
he had adequate opportunity to view Gayden. Jones described
the circumstances of the robbery and identified Gayden as the
man who shot him.
At the preliminary hearing, defense counsel cross-examined
Jones regarding his identification of Gayden. Defense counsel
was precluded from asking Jones if he had seen Gayden
subsequent to the robbery. However, defense counsel did
question Jones about whether he had seen Gayden prior to the
robbery and Jones indicated that he had seen Gayden after the
robbery. Inquiries from defense counsel about photo and lineup
identifications by Jones were precluded at the hearing.
Prior to trial, Jones died. At a bench trial in the Circuit
Court of Cook County, Jones' preliminary hearing transcript
was introduced into evidence. Defense counsel's motions to bar
introduction of the transcript because of attorney conflict of
interest at the preliminary hearing and an inadequate
opportunity to cross-examine Jones were denied. Defense
counsel's motion to suppress an identification because of an
improper lineup was also denied.*fn3
At the trial, Standifer gave testimony which corroborated
Jones' preliminary hearing testimony. Gayden was convicted of
armed robbery, armed violence and aggravated battery and was
sentenced to two 10-year concurrent terms of imprisonment.
The Illinois Appellate Court affirmed the trial court's
decision.*fn4 The Illinois Supreme Court denied Gayden's
petition for leave to appeal. Gayden then filed the instant
habeas corpus petition with this Court.
A federal court's power of review in a habeas corpus
proceeding is limited. The federal court must base its
decision on the same record considered by the state appellate
court. Underlying factual determinations of the state
appellate court are presumed to be correct unless it is
established that the determination falls within one of the
exceptions of 28 U.S.C. § 2254(d). If none of the exceptions of
28 U.S.C. § 2254(d) is applicable, then a federal court must
defer to the state court findings and the burden is on the
petitioner to show by convincing evidence that the state
court's factual determination was ...